Pudsters14 vs MBNA

[pudsters14]

Got a copy of their allocation questionnaire today... very interesting.......................................................................They have put in Section D (it's an N150).....................................................................'The claimant would wish to reply upon ita Witness Statement (and would hereby put parties upon notice of its intention to reply upon said hearsay evidence)'........................................................ Yet when I checked with the court they haven't filed anything..................................................................... what does this mean?............................................................Pudst x x x x x

[pudsters14]

Oh and Steven can I PM you... think they have dropped themselves in it a bit but would like to see what you think and keep this as my trump card! Pudst x x x x x

[MAGDA]

The AQ I received from Link was exactly the same as yours, it just means (steven kindly cleared this up for me) that they don't have original documents, so will be relying on copies - However, as far as the agreement is concerned, the original should be available at the hearing. If you see my link, this is all explained by Steven there. Magda

[MAGDA]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/136957-claim-issued-asset-link-4.html?highlight=mAGDA - See post #76

[pudsters14]

Thanx Magda! I'm going to subscribe to your thread now, did they send you copies of anything with your AQ? In fact that question may be answered when I read your thread! LOL... Brain a bit slow with it being Sunday! Pudstx x x x

[MAGDA]

Yes, I know the feeling! No, the only documents that I received were an actual copy of the AQ's, in fact the court (re: my draft directions on my AQ's) has now ordered Link to provide a complete response to my defence within 21 days for some of the accounts, and details on how the debt was calculated for the other two within fourteen days, which is really good as they have been extremely uncooperative so far, to say the least. The most important thing I have discovered is that the original agreement must be available at the hearing, and they probably don't have it, hence the heresay evidence. Best wishes, Magda

[pudsters14]

Thanx Magda... same for me, they have been very unreasonable with me too... I've subscribed to your thread now so will keep track of that... Thanks for your advice! Pudst x x x x x

[MAGDA]

Oh actually Pudsters they did attach a copy of the agreements to the AQ's and on one of them they attached a notice of assignment, but that was basically it. The other information which I have requested was not provided - I actually did a SAR's for one of the accounts and they sent me very little, no statements, defaults, or anything. I wrote and complained about their lack of compliance and they wrote and said they would provide statments shortly, but these did not materialise. At least they have now been ordered to provide everything I need though, so that's good.

[banker_rhymes_with]

Hello Pudsters14 and Magda!

 

The most important thing I have discovered is that the original agreement must be available at the hearing, and they probably don't have it, hence the heresay evidence.

 

But whatever happens, don't let them sneak in a Copy of the Agreement, as that should never be allowed into Court as a Copy. The Hearsay evidence issue should only apply to routine Business Correspondence, possibly including Default Notices, it should never apply to a Statutory Document like a Live Consumer Credit Agreement.

 

Heresay evidence is covered by:

 

The Civil Evidence Act 1995

 

Make sure you understand what that can be used for, and what they must do to verify any Copies/Hearsay evidence they wish to bring along.

 

The Original Thing = Evidence. Carries Full Weight as Evidence.

 

A Copy = Hearsay evidence...carries a much, much lower weight as Evidence. Photoshop, Prit Stick, Photocopiers, Scissors and Glue have a lot to answer for! You cannot trust a Copy unless someone has some pretty compelling Documentation to support it, such as an ISO Document Management System that is Independently Audited to stop bankers making up stories.

 

If they want Hearsay evidence to be taken seriously, then they must follow the requirements of The Civil Evidence Act 1995 or else any weight it carries as Evidence has to be reduced by comparison to The Real thing.

 

As Steven has correctly pointed out on Magda's Thread, the Original Live Agreement must be The Real Thing, and is specifically covered by CPR Practice Direction 16 7.3:

 

7.3 Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

I think it would be well worth Printing that out in Full and having a Copy handy for the Judge.

 

To put this into perspective, how far, exactly, would you get in life with a Copy of a Driving Licence, a Copy of a Marriage Certificate, a Copy of a Passport?

 

Nowhere, of course!

 

So, don't let bankers who were foolish enough to lose, mis-place or destroy their Original Written Agreements get away with a Copy in Court.

 

Repeat after me everyone...only the Original Agreement will do in Court!

 

This is something they have been getting away with for too long, as too few people were aware of CPR Practice Direction 16 7.3, and ignorant of The Civil Evidence Act 1995 for everything else submitted as Copies.

 

Cheers,

BRW

[FANTASY CHARGES]

MADGA read this post of ours

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1654343.html

[MAGDA]

Hi BRW, The information you have given recently on CPR Practice Direction re: the orignal agreement has been really helpful as you have gone into a lot of detail which will really help when it gets to court ( i'm now busy chanting "only the original agreement will do") and as you mentioned, steven pointed this out to me earlier on my thread - I had no idea about any of this before. Maybe this will give Pudsters and I more of a fighting chance. Thanks also Fantasy charges, will have a look at the link, thanks for all the help, good luck to Pudsters, magda

[FANTASY CHARGES]

THIS BIT IS INTERESTING

 

Use at trial of witness statements which have been served 32.5 (1)If –

(a)a party has served a witness statement; and

(b)he wishes to rely at trial on the evidence of the witness who made the statement,

 

he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence

 

 

 

PART 32 - EVIDENCE

[MAGDA]

That is very interesting. I am now hoping to perhaps use

"Notice to admit or produce docs" to my benefit if I can, 32.19 (1)A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

(2)A notice to prove a document must be served –

(a)by the latest date for serving witness statements; or

(b)within 7 days of disclosure of the document, whichever is later.

 

 

Link are intending to use heresay evidence in both mine and pudsters case, so this should come in very useful.

[citizenB]

That is very interesting. I am now hoping to perhaps use

"Notice to admit or produce docs" to my benefit if I can, 32.19 (1)A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

(2)A notice to prove a document must be served –

(a)by the latest date for serving witness statements; or

(b)within 7 days of disclosure of the document, whichever is later.

 

 

 

Link are intending to use heresay evidence in both mine and pudsters case, so this should come in very useful.

 

 

It would appear that Link are in for a bit of a shock

[banker_rhymes_with]

It would appear that Link are in for a bit of a shock

 

Good.

 

Cheers,

BRW

[pudsters14]

This is fab advice... and i've got something else up my sleeve... just want to run it past Steven first............ Pudst x x x x

[steven4064]

Oh and Steven can I PM you... think they have dropped themselves in it a bit but would like to see what you think and keep this as my trump card! Pudst x x x x x

PM away

[pudsters14]

Righto. spoke to the court today, they have said that the judge has listed this as a 30 minute allocation hearing and that I should get a letter in the next few days... what does this mean?Pudstx x x x

[pudsters14]

Hiya they told me the wrong thing on the phone... it is going to be a directions hearing... how is this different?Pudstx x x x

[MAGDA]

Hi Pudsters, this was posted on another thread by the terminatior:

 

A directions hearing is basiclly what it say's.A judge usually directs both parties to either disclose information or to reach a settlement within usually 28 days.I personally wouldn't worry too much about this and judges are not stupid if the bank is playing for time or not disclosing what they should do he/her will come down on them like a ton of bricks.Also if either party fail to follow the judges directions they can be held for contempt of court.

 

Hope it all goes well, Magda

[MAGDA]

Have you had your hearing yet Pudsters?

 

Magda

[tinkerbell20]

Yes how did it go?

[pudsters14]

Hiya guys sorry i've not been on 4 ages.......... not been well and had loads on. Got my hearing in November so got ages to wait. Will keep you updated though, not heard anything else from link, no paperwork... nothing.... I'm going to check out your threads now to see how you've been going on too....thanks for leaving a message...

 

Pudst

x x x x

[MAGDA]

Hi Pudst, sorry to hear you haven't been well - I don't think the stress of all of this helps does it. At least your directions hearing is quite a way off still yet, so it gives you time to get everything sorted. Three of Link's claims against us have now been struck out, so that leaves just the one, which I know Link are going ahead with as they paid the hearing fee. Still at least that is less to cope with than all four together.

 

Hope you are soon feeling better and that everything goes well for you. Keep us posted,

 

Magda

Edited September 25, 2008 by MAGDA
typo

[pudsters14]

Hi all!

 

Bit confused today. Link have sent me a default notice, their ref seems to be the same.

 

Gives me new timescales and says that the agreement will be terminated after the 8th October...

 

What are they up to?

 

I have rang court and they think it is all business as usual and the directions hearing will take place as normal in Nov???

 

Any suggestions or ideas about what is going on? How should I reply to this?

 

Pudst

x x x