Arrow/RestonsClaimform - Old Egg Loan - CCJ - Now AOE request

[barafear799]

Hi,

 

Did anyone have a chance to look at my uploads and advise on my next course of action? Especially as I am unable to attend court on the date and unable to pay £250 to change the dates.

 

I am focussing on getting Arrow to "prove" that the debt is still outstanding, and whether the paperwork (credit agreement) has all the prescribed terms and conditions - it appears to be some sort of reconstituted agreement.

 

I am looking around for similar cases to see what the outcomes were - but without much luck.

 

Thank you.

[Guest]

it seems its as you said if you cant attend, and cant do a relist. ie writing in to explain your absence, asking the ct to deal with in yr absence.

you'll have to disclose any evidence/witness statement just prior anyway.

this is re their app'n for summary judgment, so you'll need to consider civil procedure rule part 24 etc

[barafear799]

Thanks Ford.

Sorry, I've been looking around for similar threads to mine, with some success stories.

Can you expand on the Civil Procedure Rule part 24 etc.

i.e. expand on the etc.?

 

Also, can someone assist by going back about 30 posts on this thread and guiding or advising as to whether the agreement that Arrow are relying on for their case is "enforceable"? Does it contain everything it should? where should I be challenging it?

 

Also, can someone advise "how long before the hearing" must I "provide any evidence/or indeed a letter stating I will not be able to attend court on the date stipulated, and asking the court to deal with things in my absence"?

 

I know it's a lot of questions - sorry - and I would be massively grateful for some guidance to move this forward as the date of the court case gets closer (18 days).

 

Thank you.

[Guest]

Thanks Ford.

Sorry, I've been looking around for similar threads to mine, with some success stories.

Can you expand on the Civil Procedure Rule part 24 etc.

i.e. expand on the etc.?

did you googly look up part 24. it relates to applications for summary judgment which, as i understand, you are facing. and need to argue against.

the etc is just anything related there and in the rules, eg its associated practice direction....

[barafear799]

Thanks once again Ford.

I've been really busy at work this week - so this has lapsed a little and now my court case (which I cannot attend) is less than 2 weeks away.

I read up on Part 24 rules. In there it states I should submit any written evidence to the court and the other side 7 days before court date - although elsewhere I read it was 14 days.

I believe as I will not be attending I need to supplying some written evidence.

 

Actually - I've just read the "evidence pack" from Restons. and they state Seven Days.

 

I do "urgently" need some assistance from the guys on here with my written evidence.

 

I think it is just a case of "prove it" but also relying on the fact that their copy of my agreement did not contain the prescribed t&c as required of pre-2007 agreements.

 

Is this enough to rely on to "win" my case?

 

Thank you.

[barafear799]

Looking back at what they have provided and are relying on, the page detailing the "Personal Loan Agreement" states:

 

This personal loan agreement, which incorporates the Personal Loan Agreement Terms and Conditions supplied to you with your copy of this agreement (The 'Personal Loan Agreement Terms and Conditions') contains the terms and conditions on and subject to which, we, Egg Banking plc.........agree to provide the loan described below to you.

 

And within that page, there is a reference in the "payment terms" to "clause 10 of the Personal Loan Agreement Terms and Conditions"

 

I'm assuming this is the "crux of the matter" - and I should be looking to provide written evidence to the court focussing in on this specific point, claiming that Arrow/Restons have not complied with the requirement of Section 127 (subsection 3 and 4) of the Consumer Credit Act 1974 to provide "all the prescribed terms of the agreement"

 

I would be immensely grateful for support/guidance in compiling this written evidence.

 

Thank you.

 

One last point:

 

Can anyone actually tell me how this will work in court - I presume Arrow/Restons will have someone in Court - so will my "written evidence" not carry as much sway as a "professional solicitor" talking legal talk with the judge?

 

I really wish I was able to make the court date - but unfortunately it's not possible for me to get out of my pre-booked flight - without incurring a significant financial penalty.

 

Thank you again

[Guest]

unless there are any court/judge directions otherwise, then the rules timelines applies.

obviously its better to attend than not. as you are not attending, and cant get it relisted, then you shld write in a covering letter explaining your absence. you cld try and ask the J to adjourn it in yr absence without costs against, but that may be a long shot. and so there may be their attendance costs consequences against if they attend.

and, if there is summ'y judgment against they will prob get their costs

have a look at the success threads re types of witness statements used similar to your circs.

double check with the guys first though.

and post up your draft for the guys to have a look.

[theoldrouge]

They say they are unaware of any valid request under s77

 

You will be able to show evidence of your s77 request

 

S77 clearly states copy of executed agreement and any other document referred to in it

 

The agreement mentions clauses 6,7,8,9,10, 21,22 in the terms and conditions

Nothing received clearly s77 request not complied with

 

It would be far better if you attended

 

For reference s77(1)

 

77 Duty to give information to debtor under fixed-sum credit agreement.

 

(1)The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)the total sum paid under the agreement by the debtor;

(b)the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

©the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

(2)If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

[F2(2A)

[barafear799]

Thank you for taking the time out of your weekend to respond.

I am most grateful.

 

I really wish I could attend, but it's really not possible.

I do feel quite perturbed I did not get the chance to complete a form stating dates I was unavailable.

I know this form exists because I've had it for a separate case.

 

I will study the latest advice above and work on a witness statement.

 

Court case is on 16th, guess I need to post to Restons by Wednesday to get there seven days before?

[barafear799]

Dear All

Many thanks so far.

Now it's my turn to do some work.

 

I am fast running out of time

- in order to get my witness statement to Court and Restons (or do I need to send to Arrow) seven days before the proposed hearing, I need to post tomorrow.

 

Am I able to hand deliver the copy to the court (as it's within a couple of miles of me)?

 

So far, my original defence was fairly brief.

 

Since then I did the requisite CPR and s77 requests for information

- which did not turn up in good time (hence the reason for the case being stayed)

certain parts now form part of Arrow/Reston's evidence (posted by me in an earlier post).

 

I need help to word my witness statement please and on what point am I focussing in order to not get a judgment made against me?

 

I'm very much focussing here on the credit agreement supplied which does not contain the requisite terms and conditions.

 

In my witness statement, do I need to refer to the part of the CCA act which states what I should have received, or what they should have produced as part of their evidence?

Is it simply S77 or is there another part? please.

 

If you could get back to me tonight please, I can finish off my statement and post by tomorrow.

I will attempt to put up a draft to allow for some feedback.

 

attached is a very "draft" copy of my proposed witness statement.

 

Some questions:

 

I was tempted to go through Arrow's evidence and rebuke/refute each item - but decided to keep it short.

 

However, I do want to ask whether the fact this is such an old debt (ok last payment made in 2012, but originally "signed" in 2003), and the only evidence they have produced are "screenshots" of accounts

 

- also, I have seen no mention of this debt on my credit reference files for the last five years.

 

None of these feelings are applicable I guess

D - but any advice as to what I need to add or delete from my statement much appreciated.

 

Thanks

witness statement.pdf

[dx100uk]

Better to post it here in text so people can copy and edit

Look a bit bland to me

Where are you refs too your exhibits and the exhibs as well

[dx100uk]

and post 59

[barafear799]

Arrow Global CLAIMANT

-AND-

“Barafear” DEFENDANT

First WITNESS STATEMENT

OF Barafear

I, Barafear of “xxx road, xxx town, AB1 2CD” would say (if I were able to attend) as follows:-

1. I am the DEFENDANT in this case.

2. I make this Witness Statement in defence of the claimant’s application for “Lifting the stay,

strike out the defence and enter judgment”.

3. Following the receipt of a court claim on 16/12/2015, I wrote to the claimant requesting a

true copy of the credit agreement, together with other documents required to be provided

pursuant to section 77 of the Consumer Credit Act 1974.

4. This information did not arrive before the deadline for me to file a defence to the claim.

5. Subsequently, documents have been sent (as described in the evidence provided by the

claimant for this hearing).

6. However, one of the documents on which this claimant relies, a true copy of the original

credit agreement, is lacking vital information on which it relies, namely the Personal Loan

Agreement Terms and Conditions; the document provided by the claimant makes reference

to several clauses of the Terms and Conditions (namely 6,7,8,9,10,21 and 22).

7. I do not believe that the documentation provided by the claimant shows that the debt still

exists (original loan agreement dated 2003); Within my original defence, I admitted to

having had financial dealings with Egg Banking in the past, however, this does not purport to

an admission of signing the Credit Agreement (Claimant’s exhibit LT1), being provided with a

loan or the fact that the loan has not been repaid. I believe it is the claimant’s responsibility

to prove these allegations to be true, rather than me to dispute them.

Statement of Truth: I believe the facts stated within this Witness Statement to be true.

 

 

Thanks DX. Reference to exhibits was only there if necessary. Should I be making reference to their evidence and saying it's not fit for purpose?

 

What was your ref to post 59? Is this the section of the act I should be referring to?

 

Thanks agian

[AndyOrch]

This is a witness statement in response to application for Summary Judgment ?

[barafear799]

This is a witness statement in response to application for Summary Judgment ?

 

Lifting the stay, strike out defence and enter judgment.

Is it complete rubbish?

Witness statement required because I am unable to attend the court case.

Advice much appreciated. Thank you

[AndyOrch]

No its an application for Summary Judgment

 

 

Looking through the paperwork in more detail,

they have completed an N244 form asking for the following:

 

An ex-parte Order to:

 

1. Lift the stay on these proceedings.

 

2. Strike out the defence pursuant to CPR 3.4(2) of the Civil Procedurei Rules on the basis that it discloses no reasonable grounds for defending the claim and/or is an abuse of the Court process; and

 

3: Enter Judgement for the sum of £xx,xxx.xx (more than £10k)

 

Alternatively if the court is not minded to deal with this application on an ex-parte basis, the Claimant seeks an Order:

 

1. To left the stay on these proceedings

 

2. To strike out the defence pursuant to CPR 3.4(2) of the CPR on the basis that it discloses no reasonable grounds for defending the claim and/or is an abuse of the Court process; or

 

3. In the alternative to (2) above, on order for Summary Judgement against the Defendant under part 24.2 of the CPR.

 

 

The defendant has no real prospect of successfully defending the claim and there is no other compelling reason why the case whould be disposed of at a trial; and

 

4. That the defendant do pay the Claimant's costs on a contractual (indemnity) basis, pursuant to CPR 44.5

 

Following on from my post above,

looking at the paperwork (it's vast),

there is a section written by Restons detailing why they feel my defence should not succeed.

 

Edited version of claimants witness statement in support

 

1) The defendant does not dispute signing the Credit Agreement, being provided with a loan or the fact that the loan has not been repaid.

In fact, in paragraph 2, the defendant admits having had financial dealings with Eggicon in the past.

 

2) Throughout the lifetime of the account,

the Defendant would have been sent annual statements of account by the original creditor which would have recorded payments made towards the account and the application of interest etc.

 

3) The defendant does not allege he is still being pursued by the original creditor and hence there is no sensible reason for the defendant to challenge the assignment of the account.

 

 

In any event,

evidence has been exhibited which shows a notice of assignment has previously been served on the defendant, contrary to what is alleged in the defence

 

4) Info provided to my firm is that the last payment credited to the account was on 30 Nov 2012, and that a balance of £xx,xxx.xx remained outstanding at the time my firm were instructed.

This is confirmed by a screenshot exhibited as evidence in this pack.

 

5) I am unaware of any valid request being made to the creditor pursuant to S77 of the CCA 1974, but in any event, a copy of the Credit Agreement and a Statement of Account is exhibited in this witness statement.

 

6) The documents exhibited to this witness statement show that the defendant entered into a credit agreement with Egg,

Egg assigned its rights and duties under the Credit agreement,

the Defendant has been served with notice of both assignments and a balance of £xx,xxx.xx remains outstanding.

 

7) I respectfully point out to the Court that the Defence filed is in a format that is circulated on consumer-based websites whereby Defendants are encouraged to use this templateicon in order to avoid repayment of their debts.

 

 

Although the Defendant has made numerous allegations,

it is my belief that the Defendant does not fully understand the nature of the allegations raised and is merely using the templateicon in an attempt to frustrate these proceedings,

without any genuine belief in the allegations raised.

[AndyOrch]

Example Witness Statement opposing Application for Summary Judgment.

 

Witness Statement

 

 

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and (insert original creditor). I deny the contract endures since on a day prior to the commencement of this case against me, the (insert original creditor) terminated the contract.

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry XXXXXXXXX NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

7 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

8 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

10 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a letter before action on the 14th April 2008 demanding payment, being just XX days after the claimant claims the default notice was sent.

 

11 The delivery of the letter before action is good evidence that on or before XX XXXX, the (insert original creditor) terminated the agreement.

 

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

13 without prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the original claim is incorrect and They therefore request the claim value to be amended to £XX XXX XX. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations.

 

14 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

15 The claimant also claims £XX XX in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

17 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed .

 

Date: xx xxxxx 2017

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Signature

[barafear799]

Thank you so much Andy. I will get right to it. I didn't realise at any time I should be focusing on whether/when a NOD was ever received.

[barafear799]

Andy (or anyone)> I might be missing something here - but I'm confused about the reference to Notice of Default (NOD) - in particular :

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry XXXXXXXXX NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

7 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

I could not see anywhere in the evidence provided by Arrow that they have failed to produce or are unable to produce a NOD. Nor, can I find any direct reference to a screenshot from a Mida system which shows an entry mentioning a NOD?

 

Is anyone able to clarify please?

[AndyOrch]

Every claim is different BF and the above witness statement was particular to that posters details of claim.

 

As long has you can prove that a Default Notice was never issued and the claimant cant contradict it was from the OC internal data files...then the onus is on the claimant to prove otherwise.

 

If no default was ever served and the claimant cant prove otherwise then you refer and rely on sec 87.1 of the CCA1974

 

http://www.legislation.gov.uk/ukpga/1974/39/section/87

[barafear799]

Andy> Many thanks for getting back so fast.

So, would you suggest that a witness statement mentioning the failure to produce a default notice is my best cause of action - rather than my "shabby" attempt at a witness statement which more focussed on the lack of T&Cs provided when they produced a copy of the "agreement"?

There doesn't ever seem to be any mention of the default notice - and certainly the evidnce pack for this summary judgment hearing doesn't seem to make any mention to a NOD - only a couple of "NOA" letters - which they have produced copies of.

Would I be right in thinking that a NOA is irrelevant is a NOD was not sent- or that Arrow cannot provide?

 

Thanks - itching to get a letter sent off so that I can comply with providing it seven days before the case.

 

Thanks!!

[AndyOrch]

Your witness statement should respond and deal with all the errors in their WS and exhibits.

 

Priority wise is the agreement and T&Cs and response to section 78.

 

Then the Default Notice issues sec87.1 CCA1974

 

Then the Assignment..NoA...Law of Property Act 1926

 

If you find any faults with the above or that the claimant has failed to follow the legislation and process..then challenge them.

 

There is no link/connection between a NOD /Default Notice and NOA Notice of Assignemnt...2 seperate parts of the process.

[barafear799]

With Andy's help, I have expanded my original statement a little - focussing on the lack of T&Cs and default notice.

I might still have some improvements to make (advice please??):

 

1. I am the DEFENDANT in this case.

 

2. I make this Witness Statement in defence of the claimant’s application for “Lifting the stay, strike out the defence and enter judgment”, and the evidence pack they have provided in support of their application.

 

3. Within the evidence pack from the claimant is a copy of a letter I wrote to their solicitors (Restons) (dated 22/12/2015) requesting information under CPR 31.14 for the disclosure and the production of verified and legible copies of four specific documents, relied on or implied, by their original particulars of claim application.

 

4. I also wrote to Arrow on the same date as follows: “This letter is a formal request pursuant to section 77 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.” (copy of full letter enclosed)

 

 

5. This information did not arrive before the deadline for me to file a defence to the claim.

 

6. Subsequently, documents have been sent (as described in the evidence provided by the claimant for this hearing), however, a default notice has never been provided and is not part of the evidence produced by the claimant for this application.

 

7. I would contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant

 

 

8. One of the documents on which this claimant relies, a true copy of the original credit agreement, is lacking vital information on which it relies, namely the Personal Loan Agreement Terms and Conditions; the document provided by the claimant makes reference to several clauses of the Terms and Conditions (namely 6, 7,8,9,10,21 and 22).

 

9. I do not believe that the documentation provided by the claimant shows that the debt still exists (original loan agreement dated 2003); Within my original defence, I admitted to having had financial dealings with Egg Banking in the past, however, this does not purport to an admission of signing the Credit Agreement (Claimant’s exhibit LT1), being provided with a loan or the fact that the loan has not been repaid. I believe it is the claimant’s responsibility to prove these allegations to be true, rather than me to dispute them.

 

10. In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed .

 

thank you......

[AndyOrch]

I would amend your point 2 to ....

 

This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

[barafear799]

Thanks Andy. For all your help.

Unfortunately, I had to rush to Post Office to ensure letter arrived with Restons seven days beforehand.

 

Just time to cross my fingers now and hope when I return from my trip that I don't have a CCJ against my name.

 

Thank you once again to everyone that has helped me.