Pudsters14 vs MBNA

[pudsters14]

Hya Docman,

 

I did put more in about the notice of assignment in my defence but was a bit confused with this as it did seem like I was just putting in what I had already put in my defence and didnt know whether that was right?!?!?

 

To update you a bit, I entered my 1st defence and then had a directions hearing, which I'm led to believe isn't the norm with small claims. The judge said that she felt it was necessary as the case was such a mess and she was pretty fair.

 

She ordered that Link supply a fully particularised P.O.C. and then off the back of that I had to submit an amended defence... which I have done.

 

She then ordered that we both send witness statements and copies of all docs we would be relying on in court which is where I'm up to now. So gotta get the witness statement and documents put together and will send them in asap. Hopefully friday. Just a bit confused now! LOL. Could really do with some site advice...

 

Thanx for your interest and input though, it is much appreciated!

 

Pudst x x x x

[MARTIN3030]

Its not unusual for this to happen,I have had 2 such cases.

Directions hearings are usually straightforward.Obviously the defence you submitted will not include everything for a trial.What you need to put together then is a bundle.

There is a list of what you will need in there,in the library here.May also help you to look at a couple of other cases similar to yours thats either at a similar stage or else been sorted.

 

I noticed Steven has been helping you I will alert him to this.

Edited January 28, 2009 by MARTIN3030

[angel_1]

hiya pudst

 

just coming by and seeing where you are at,,, wow,,,,im liking it and learning something along the way

 

keep positive and take care for now

 

laters angel x;)

[pudsters14]

Thanx Martin, do I need to print copies and send them to the court and link? Like do i send them a copy of woodchester for example?? Just thinking it's going to be loads of paperwork to send to them?!??? I'm going to do a load of reading etc and going to get this sent on Friday..... I'll have alook at some other cases etc tonight... have already done this lots anyway and have a few saved on my user CP. But just getting myself a bit confused and tangled up in this stuff now. Is my witnbess statement ok? Thanx again for all your help. Pudst x x x x

[steven4064]

Hi pudst

 

Can you post a link to their latest POC and your latest defence. I'm quite busy ATM but I will try an dhave a look

[pudsters14]

Righto Steven, doing it now.... Give me 2 mins..... Pudst x x x x

[pudsters14]

Hya Steven and all,

 

Links are as follows....

 

New P.O.C. Link…………..http://www.consumeractiongroup.co.uk/forum/legal-issues/77464-pudsters14-mbna-14.html#post1888910

 

Amended Defence Link…………………………http://www.consumeractiongroup.co.uk/forum/legal-issues/77464-pudsters14-mbna-14.html#post1904408

 

Witness Statement Link………………. http://www.consumeractiongroup.co.uk/forum/legal-issues/77464-pudsters14-mbna-15.html#post1946437

 

Help would be much appreciated as I need to get this printed and shunted into court on Friday if poss as the deadline is Monday...

 

I need to file a witness statement, i have come up with the above and also file and serve copies of all the documents I intend to rely on in court.

 

Please help/let me know i'm on the right track...

 

Pudst x x x x

[pudsters14]

the above links do take you straight to the posts...

[pudsters14]

BUMP... Please someone help me as this needs to be at Court and sent to Link asap. Pudst x x x x

[pudsters14]

I'm thinking perhaps I should be sending a CPR 31.14 request too?

[MAGDA]

Had a quick look at the witness statement. I think you need to provide copies of the correspondence mentioned in points 10 and 11 for example (exhibit ...) as part of your bundle. Also, you mentioned that you have the original DN, and I'm not sure if that is a good idea, as you are then confirming that the claimant did indeed serve the original DN at the time they claim. It would otherwise be up to the claimant to prove that the DN was indeed served and they probably are unable to do this. If I notice anything else, will let you know, Magda

[MAGDA]

Just to add, if they haven't been able to produce the original DN (in which case the agreement between yourself and the original creditor is still intact as they would need to default before terminating, as far as I'm aware) then the whole process prior to the assignment of the debt would render the assignment invalid. It might then be a good idea to send a cpr 31.14 request to ask them for disclosure of the DN they claim was served, and any other documents that they so far have been unable to provide. This certainly did the trick in my own case, although you are at a different stage (I had a date set for hearing). Hope this helps, Magda

[pudsters14]

I have a date set for hearing in early March too.

[pudsters14]

The reason I am using the original DN is because it is defective anyway. They haven't allowed the 14 days + service time. But I have asked them to prove they sent one which complies with all the regulations and so far they haven't sent anything... Pudst x x x

[MAGDA]

Well, may be worth doing the cpr 31.14 request then, worth a try anyway. Sorry, thought it was the second DN that was defective - gets very confusing doesn't it. Magda

[pudsters14]

Yeah and I can't access the court bundle stuff on here! think i'm going mad! LOL..Have asked for some direction or link in there from Martin3030. It's both DNs that are defective neither of them allow for service time. Think i'll go and have my tea and then will come back and hopefully get it sorted ready for 2mrw...Pudstx x x x

[MAGDA]

Sure you will be fine in the end - you have a really good defence anyway, even just based on the so called agreement, which of course is nothing more than a pre-contractual application form. I'm sure someone will give you a bit more help later today and hopefully you can get everything finalised then. Best of luck, Magda

[pudsters14]

Im back and still struggling... just bumping to see if anyone is avail to help me... Pudst x x

[Cornucopia]

I can offer a little bit of advice here as I am in the middle of a case too.

 

Advice according to my Barrister...

 

You don't need to refer to exhibits at all. Your bundle of documentation will suffice. Also, if you refer to case law, this should be enough, there is no need to quote all of it in your defence (however, you could put photocopies in your bundle if you so wish).

 

In my opinion, your biggest ace here is the defective default notice. I would refer to that only fleetingly, you do not want to give the claimant the opportunity to go away and attempt to repair it. They can do this, although there are pitfalls in doing so and it is likely to be viewed as an abuse of process.

 

I was also advised to keep my witness statement as simple as possible, the facts only and the effects the situation had on me personally.

 

Remember also the Rankine case. They threw in too much on the basis that they might win on some of the points, but aside from the costs risks, this meant they shot themselves in the foot.

 

I hope this is helpful and I am only passing on the benefit of my own personal experience. Remember that the court will take into account that you are a LIP and I am sure will be impressed with all your hard work thus far.

 

Good luck.

 

Regards,

 

Corn x:)

[pudsters14]

Thanx Corn, is my witness statement too much then? can you just have a scan? Do I do a full disclosure list to go with it? Like all my letters etc? The order states: The parties do file and serve by the 2nd Feb 2009 1.) a statement from themselves and any witness they intend to rely upon and 2.) copies of all documents upon which they intend to rely with the originals being produced at the hearing... this is where i'm confused. Do i send all the letters etc they have sent me? Or do i start including case law etc and everything I intend to rely on? Pudst x x x x Thanx so much for your help! x

[pudsters14]

I found this and it scared the life out of me? do i have to send copies of all this stuff?case/claim No: [cLAim number]In the [insert court name] County Court[insert name] CLAIMANT-AND-[insert name]DEFENDANTDISCLOSURE BY LISTOF [insert name] CLAIMANTI, [insert name]of [insert home address] Intend to rely on the following documents in court -1. CorrespondencesFile Ref .....Date .......Description ......................... ......................... No. of pages(A) 20/04/06 Letter: Request for repayment of charges to Abbey from NAME to NAME- 1(B) 02-05-06 Letter: Abbey acknowledgment of (A) from NAME to NAME - 1 © 08-05-06 Letter: Letter Before Action to Abbey from NAME to NAME - 1(D) 11-05-06 Letter: Abbey response to © from NAME to NAME - 1 (E) 11-05-06 Letter: 2nd Abbey response to © from NAME to NAME- 2(F) 15-05-06 Copy of County Court Claim form issued by Claimant - 1(G) Court Document: Notification of claim issued - 1(H) 22-05-06: Letter: Letter from Solicitors from NAME to NAME - 1(J) 22-05-06 Court Document: Notification of Acknowledgment of Service - 1(K) Copy of Abbey Acknowledgment of Service - 1(L) 23-05-06 Letter: Claimants Response to (H) from NAME to NAME-1(M) 23-05-06 Letter: Schedule of Charges in response to (H) from NAME to NAME- 2(N) 14-06-06 Letter: Abbey Fax copy of defence from NAME to NAME - 4(O) 15-06-06 Letter: Letter confirming defence entered from Court - 1(P) 15-06-06 Letter: from Solicitor confirming account details from NAME to NAME– 1(Q) 15-6-06 Court Document: Notification of Defence Filed by Abbey - 1® ----------------------------------------------------------------(S) 21-06-06 Letter: Claimant to Solicitors – confirming return of Allocation Questionnaire from NAME to NAME- 1(T) 20-07-06 Court Document: Notification of Allocation and Hearing – 2(U) 20-08-06 Letter: Claimant to District Judge from NAME to NAME– 1(V) 30-8-06 Court Document – General Form of Judgement or Order -1(W) 30-08-06 Court Document – Notice of Case Management Conference -12. Authorities...........Description ......................... ......................... .............No. of pages(AA) -- Copy of bank statements printed from online banking provided by Abbey(BB) -- Unfair Terms in Consumer Contracts Regulations (1999) - 10(CC) -- The Supply of Goods and Services Act (1982) - 13(DD) -- Unfair Contract Terms Act (1977) - 9(EE) -- Office of Fair Trading Report April 2006 (OFT842) - 35( FF) -- House of Commons Early Day Motion (EDM 2227) - 1(GG) -- House of Commons Select Committee on TreasurySecond Report: ‘Transparency in charging’ - 10(HH) -- Report by Kendall Freeman on Liquidated Damages (May 2005) - 3(II) -- Case Law Reference: Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 - 2(JJ) -- Case Law Reference: Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [2005] EWHC 281 (TCC) - 2The Claimant will also make reference to the following case laws;1. Murray v Leisureplay [2005] EWCA Civ 9632. Wilson v Love [1898]3. Lordsvale Finance PLC v Bank of Zambia (1996) QB 7524. Bridge v Campbell Discount Co. Ltd. (1962)Statement of TruthI believe the facts stated within this xxxxxxxxxx to be true and comprises of xx pages.Dated this day of 2006Signed

[banker_rhymes_with]

Hello Corn!

 

Nice to see you back on CAG.

 

In my opinion, your biggest ace here is the defective default notice. I would refer to that only fleetingly, you do not want to give the claimant the opportunity to go away and attempt to repair it. They can do this, although there are pitfalls in doing so and it is likely to be viewed as an abuse of process.

 

It's an Ace all right! I also agree it's best to keep that one as low key as possible until you can nail the banker to the floor with it.

 

However, if it's after they have Terminated the alleged Account, there is no logical way they can repair an invalid Default Notice once the alleged Agreement has ended. I don't trust them not to try and recreate one, but in many cases, they often leave themselves no scope to do so...i.e. many Terminate straight after the end of the Default Notice, so leave themselves zero time to conjure up another one.

 

The dangerous grey area is after expiry of the invalid Default Notice and before they Terminate. There can sometimes be a little window of opportunity for mischief there!

 

But going back to invalid Default Notices in general, Surfaceagentx20 put this rather well:

 

An ineffective default notice will prohibit the Claimant recovering all those things on which the service of an effective default notice is dependant. In short, the claim will be reduced to just the arrears, See Woodchester v Swayne.

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

x20

 

His CAG Thread below is well worth reading:

 

A Tale of a Dodgy DN

 

Judges are starting to wake up to the Default Notice issue, and a few cases have been thrown out recently where the Claimant/bank either could not produce one, or had an invalid one. That is, of course, the proper thing for them to do!

 

Cheers,

BRW

[Cornucopia]

Right, hang on a minute.......you should have received court directions. Firstly, you would have entered your defence. Secondly, you would normally issue your document disclosure list, as would the claimant and it's at this point that you can ask for copies of documents on their list to see that they haven't got something you don't know about. Next comes your witness statement. You do not need to refer to case law in this. It is simply a summary of what has happened. Your bundle should contain everything on which you intend to rely. In my case, my bundle is everything from the word go. I will PM you.

[Cornucopia]

Hello Corn!

 

Nice to see you back on CAG.

 

 

 

It's an Ace all right! I also agree it's best to keep that one as low key as possible until you can nail the banker to the floor with it.

 

However, if it's after they have Terminated the alleged Account, there is no logical way they can repair an invalid Default Notice once the alleged Agreement has ended. I don't trust them not to try and recreate one, but in many cases, they often leave themselves no scope to do so...i.e. many Terminate straight after the end of the Default Notice, so leave themselves zero time to conjure up another one.

 

The dangerous grey area is after expiry of the invalid Default Notice and before they Terminate. There can sometimes be a little window of opportunity for mischief there!

 

But going back to invalid Default Notices in general, Surfaceagentx20 put this rather well:

 

 

 

His CAG Thread below is well worth reading:

 

A Tale of a Dodgy DN

 

Judges are starting to wake up to the Default Notice issue, and a few cases have been thrown out recently where the Claimant/bank either could not produce one, or had an invalid one. That is, of course, the proper thing for them to do!

 

Cheers,

BRW

 

Hello, nice to see you too!

 

Regarding default notices, it is possible for the claimant to realise that they have screwed up, terminate the current case, re-issue a new default notice and start all over again. They can do it, but as I said, it is very risky and full of pitfalls. My barrister told me to make little of it so that nobody was particularly alerted to it. It holds a lot more strength than the s.78 argument!

 

Regards,

 

Corn x:)

[pudsters14]

Ok I get what you are saying... i think... I entered my defence and the judge ordered a directions hearing. Then she ordered a list of things that needed to be done prior to a new date for full hearing which is early march. This is the last part of that list. She wanted 1. Claimant to file a fully particularised POC. They have done this. 2. An amended defence from me... I have done this.... And then she wanted witness statements and copies of all the docs we intend to rely upon.... it's this bit i'm stuck with.... I have typed up a witness statement as per one I found on here. But I don't know what documents I'm disclosing or how to set it out etc.... Pudst x x xx