Cabot/shoos claimform - yorkshire bank OD - stayed 4yrs - now SJ threat

[robingetz]

Yeah I’ve told her there’s nothing to worry about but I normally sort these things out

[robingetz]

s this the sort of thing I need to submit?  It's just the first attempt and some of the wording might not be appropriate, but I wanted to make a start and get it submitted sooner rather than later.

 

[Dorytime]

Alright,

 

Here’s a number of authorities on SJ applications:

 

ED&F Man Liquid Products Ltd. v Patel & Anor [2003] EWCA Civ 472

 

Swain v Hillman & Anor [1999] EWCA Civ 3053;

 

Three Rivers District Council v. Governor and Company of The Bank of England [2001] UKHL 16;

 

Apvodedo NV v Collins [2008] EWHC 775 (Ch).

 

The above authorities confirm that the correct test to be applied on applications for summary judgment is as follows:

 

(1)            the overall burden of proof falls upon the applicant;

(2)            the only object of the rule is to deal with cases that are not fit for trial at all;

(3)            the issue must be on a short point of law or construction;

(4)            the court must not conduct a mini-trial;

(5)            the criterion to be applied by the court is absent of reality (either way);

(6)            the applicant must establish that the defence, or claim, is fanciful and unrealistic;

(7)            the applicant must establish that the claimant or defendant has no real prospect of succeeding on the claim or issue;

(8)            the applicant must establish that the claim or issue is bad in law;

(9)            the applicant must establish that there is no other compelling reason why the case or issue should be disposed of at a trial;

(10)         complex cases of fact and law are not suitable for and not capable of being resolved under the rule, even more so where disclosure and exchange of witness statements have not taken place.

 

In addition to preparing your written evidence (statement) in response to the SJ, you should also start preparing your skeleton argument against the SJ application, and file and serve your skeleton argument 3 days before the SJ hearing.

 

Read through the relevant paragraphs of the above authorities on the correct test on SJ applications. You can find these authorities on the Bailli web site.

Print off 3 copies of each authority and when you attend the court for the hearing, give 1 copy of each authority to the clerk to hand to the judge, 1 copy of each to the solicitor/counsel acting for the claimant and keep 1 copy for yourself.

 

On your copy, highlight the relevant paragraph numbers so that you can easily find them and refer the judge to them in support of your arguments/submissions.

 

From Dorytime

 

 

Alright,

Is there a clause in the agreement that allows the creditor to add credit to the agreement for the purpose of using that additional credit to pay late fees and charges on your account?

 

If there is no such clause, then that would be a legally based argument that is winnable, but it might not be enough to defeat the SJ or the claim (if it goes to trial), it would though reduce your liability.

 

Also, has the claimant produced clear proof that you have made a payment(s) in the last 6 years before he commenced with proceedings?

 

From what I have read that you posted here, it seems that the above two points are your best defence.

 

If you received a default notice and the information in it is not accurate/not compliant with the statutory requirements, then you should also add that fact into your written evidence against the SJ.

 

Can you post up the SJ application and their witness statement and evidence please, so that we can see exactly what their case is.

 

Thanks.

From Dorytime

[robingetz]

Hi

post #34 has the application that I uploaded earlier. The payments they are claiming I made is just a list of random amounts with no proof of the payments being made, and I have denied any knowledge of making them.  That has been uploaded previously as well.

 

this account is 13 years old so it’s difficult to remember any details with any confidence 

[Dorytime]

19 December 2006 is the date the cause of action became known to the claimant for the purposes of the limitation period under the 1980 Act; 6 years. This fact is admitted in para.26 of Thomas Phelan’s witness statement dated 2 May 2019.

 

The assignment of the account to the claimant took place on 18 September 2009, therefore, as of the 18 September 2009, the claimant personally knew that if he did not issue his claim before the 19 December 2012 his cause of action complained of would be statute barred and irredeemably unenforceable.

 

The claimant issued his claim on 2 April 2014, in the circumstances of this case he is 2 years and almost 4 months late in doing so, because the limitation period in your case is 19 December 2012.

The claim and the SJ application are an abuse of process and you need to put the above facts in your written statement and argue them before the judge.

 

The witness statement alleges that by making a part payment of £5 on 17 April 2009 you have effectively extended the limitation period within the meaning of s.29 Limitation Act 1980. This is incorrect, see – s.30 of the 1980 Act below

 

“30 Formal provisions as to acknowledgments and part payments.

(1)To be effective for the purposes of section 29 of this Act, an acknowledgment must be in writing and signed by the person making it.

(2)For the purposes of section 29, any acknowledgment or payment—

(a)may be made by the agent of the person by whom it is required to be made under that section; and

(b)shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.”

 

From Dorytime

 

The claimant is also asking the court for judgment in default of defence against your partner, so it is crucial that you establish that his claim is statute barred.

 

Dorytime

[robingetz]

Hi Andy,

 

Can you have a look at the first attempt and let me know if I am going down the right lines. 

 

The Claim

 

3. The defendants do not dispute that they had a bank account and left an outstanding balance.  The outstanding balance was because at the time of the defendants having the account, the bank treated the defendants poorly, and were adding charges to the account at an alarming rate, and would increase the overdraft limit on the account to cover the bank charges, therefore increasing monthly overdraft charges.  Therefore the defendant believes that it was irresponsible lending on behalf of the bank.  The defendants asked the bank for help to bring the account back in order by freezing interest and charges, which they refused to do.  The defendants had no choice but to stop using the bank and leaving the outstanding balance unpaid, as the actions of the bank left the defendants in financial difficulty.

 

4. The 1^st defendant did file a defence to the claim on the date stated.  The 2^nd defendant did not respond to the claim as the address used by the claimant for the 2^nd defendant was a previous address, where the 2^nd defendant hadn’t lived for a number of years, so never received the claim against them.

 

Stay on proceedings

 

5. The claimant did not supply the requested information in the time period required by law.

 

6. If the claimant was relying on Yorkshire bank to provide the relevant information, then the defendant would presume that Yorkshire bank would easily be able to retrieve and supply the claimant with this information in a timely manner as they should have easy access to this documentation.  The fact that the claimant did not claim the that they never received this information for 3 years make the defendant query whether the claimant have the correct authority to pursue this claim.

 

7. The 1^st defendant received letters as stated.

 

8. The claimant did not supply the requested information within the required time frame.

 

9. The claimant sent the 1^st defendant information that they claimed was from Yorkshire bank, stating that payments had been made by the defendant within the limitation period, which the defendant denies, as there is no clear evidence that any payments were made.

 

10. No response was received from the 1^st defendant, as the 1^st defendant believed that the claim had been stayed by a court and therefore no response from the 1^st defendant was required. No response was received from the 2^nd defendant, from either letter dated 2^nd July 2018 or 15^th November 2018, as the letters were sent to a previous address, an address that the 2^nd defendant had not lived at for 10 years.  The incorrect address is clearly visible at the top of the letters.  Therefore the 2^nd defendant never received these letters, so was given no opportunity to respond.

 

11. The claim has been stayed for 3 years, which has been sufficient time for the claimant to supply the evidence needed to request the stay be lifted, therefore the defendant believes that the claim should remain stayed

 

12. The defendant’s understanding of a stayed claim is that no payment agreement needed to be put forward to the claimant and only a court can instruct payment to be made.

 

13. Therefore, the defendant invites the court for the claim to remain stayed and no summary judgement to be entered against the 1^st defendant.  The defendant also asks the court to not enter default against the 2^nd defendant, as because of an error by the claimant, the 2^nd defendant never had the chance to defend their position.

 

 

 

 

 

[AndyOrch]

Sure ...it will have to be later this afternoon.

[robingetz]

Yeah fine thank you, trying to get it started early so it gives me time to get it right and submitted

 

 

Edited June 7, 2019 by robingetz

[AndyOrch]

Requires a lot more work...you must respond to each paragraph and identify the paragraph you refute. 

[robingetz]

Have I not done that?  I’ve only done a few to see if I’m on the right track, is there anything specific that I have missed?

[dx100uk]

docx removed text pasted to post as pers details show in properties

[dx100uk]

that ws is very poor ..sorry rob..

 

looking at the statements its obv that there was some sort of monthly £5 payment arrangement in place by you or your wife at that time to debt managers DCA in place. this ran from sept 2008 for 9 months. you are going to have a hard time denying that fact as the statements are from the original creditor not a DCA.

 

as this hearing is a month away, why don't you send YB an SAR [make SURE you included a COPY of your current CTAX bill as you have moved}

that way you'll get a copy of the statements and check them.

 

drop the irl statement?

 

your only saving grace is that the account dates from 2005

you indicate many charges were levied, and probably the main reason you stopped servicing this.

it wouldn't be too difficult to show that such charges to the date the ac was sold to the fleecers amounted to £2500 and more at the od int rate

but that's a claim against the original creditors not the claimant.

had we know this at the time [not SB'd full of charges] it might have been better to file our OD defence.

p'haps that might be your route now ...use our OD witness statement.

as I dont think anything else would work.???

 

just musings

 

 

[robingetz]

Ok so my statement is rubbish, fair enough, it was a first attempt at something that I have no real idea of what I am meant to do,  With regard to the supposed payments I made, is that sheet with a list of payments enough, it looks like something just cobbled together, there is no evidence, receipts etc, that they were made.

 

Excuse my ignorance but what's my "irl statement"?

 

What's the "OD defence"?

 

What do you think a SAR to Yorkshire Bank will achieve, I have been sent all statements from Shoosmiths?

 

Sorry if I sound clueless, just trying to get my head around this.

 

[AndyOrch]

Therefore the defendant believes that it was irresponsible lending on behalf of the bank. ......irl statement.

 

Its not rubbish ...just requires attention format and layout.

 

Here's an example of a statement...note how the paragraphs refer to the claimants paragraphs.

 

Witness statement in opposition to SJ.pdf

 

Plenty of time to get it correct.

 

Andy

[robingetz]

Thank you Andy, I will have a look and get back to you when I have amended mine

[robingetz]

Hi Andy,

 

Having just looked quickly at the attached statement, was my first effort along the right lines, only not presented the correct way.  I've also come across more letters sent from other companies regarding the same account, offering a discount and the usual threats of doorstep visitors, letters that weren't sent with the court bundle I received from the solicitors, I don't know if that is significant or should be included in my statement. 

Also the notice of assignment, that they did send with the bundle, just looks like a regular letter and not necessarily from Yorkshire, no names or signatures, I've uploaded this, can this pass as a genuine notice of assignment. This was also sent to the old address, so I never received it at the time.

 

Sorry for all the questions, I just want to get this right.

assignmemt.pdf

[AndyOrch]

Anything from the past is irrelevant really unless its connected directly to Yorkshire Bank.

 

Concentrate on the Statute barred element (1st Def) and service to incorrect address (2nd Def)...thats the only two points that matter in defeating their application.

[robingetz]

Hi Andy

 

Is this OK, it's not complete, but before I spend loads of time on it, I want to make sure that I have the correct format/process etc.  There's a couple of paragraphs taken from other statements I have come across.  I want to get the basic format right then work on the fine detail in plenty time.

 

Also where will post #80 fit in?

 

thanks

Response_update.pdf

[AndyOrch]

Getting there  

 

When you cut through all the smoke and mirrors there are really only two points to concentrate on......

 

The fact that they state its not SB you must put them to strict proof of the payments...source of payments from who ...when paid...what account used..who were they paid to Yorks Bank or DCA....

 

And the  overwhelmingly obvious point...why would you serve same claim on joint defendants using two different address ?

[robingetz]

Brilliant, thank you.   I'll spend a couple of hours on it this morning.

[robingetz]

Ok, how's this?  Probably not the finished article, but I'm hoping it's nearly there.

Response_update.pdf

[robingetz]

Hi Andy

 

Can you please have a look at the latest attempt and hopefully it is almost there, it needs to be submitted soon.

 

Thank you

Response_update.pdf

[AndyOrch]

Vast improvement...couldn't have drafted it better myself  

 

just requires a few tweaks and a little polish and a good conclusion which I will draft for you in the next couple of days.

 

Regards

 

Andy

[robingetz]

Thanks so much for your help and others who have offered advice 

[AndyOrch]

Witness Statement Overdraft.pdf