Pudsters14 vs MBNA

[steven4064]

The problem though is that it gives them a let out when the CPR demands that the original should be produced in court for a claim based on written agreement.

[atwozee]

Agreed – but that let off is available to them anyway – as we know some judges are quite happy to allow copies and ignore the fact that originals should be made available in court – I also think CPR states that originals should be available as opposed to must be available – big difference.

Wrong judge on the wrong day and a copy could be enforceable whereas if the judge accepts that the claimant must satisfy the conditions of hearsay evidence another hurdle is placed in the way of the claimant.

Just my opinion.

[supasnooper]

You may wish to file & serve a Notice to Prove (Form N268 ) the agreement.

Edited January 8, 2009 by supasnooper
damn smilies

[steven4064]

Defence looks good pudst. yes bang in the bit about document retrieval, etc.

[banker_rhymes_with]

Agreed – but that let off is available to them anyway – as we know some judges are quite happy to allow copies and ignore the fact that originals should be made available in court – I also think CPR states that originals should be available as opposed to must be available – big difference.

 

Wrong judge on the wrong day and a copy could be enforceable whereas if the judge accepts that the claimant must satisfy the conditions of hearsay evidence another hurdle is placed in the way of the claimant.

 

Just my opinion.

Maybe leave the hearsay evidence and Civil Evidence Act 1995 issues as a nice surprise for the MBNA when they fail to produce the Original Copy in Court!

 

Make sure there is a loud clearing of throat before annoucing to the Judge that they have failed to notify the Court that they were going to duck their responsibilities under CPR PD 16 7.3 and instead rely on much lower weight hearsay evidence instead.

 

How rude of them.

 

Then ask where is the hard evidence (Audited Document Management Records with Signatures and Dates etc) to back up that the hearsay evidence is actually worth considering as low level evidence?

 

Say you need an opportunity to cross-examine any Witnesses they may have that claim to be able to support the validity of such flimsey evidence.

 

In other words, make a big fuss.

 

Cheers,

BRW

[pudsters14]

Hi Pudst – first of all well done – looks like you’ve got the bit between your teeth!

 

Personally I would use the hearsay evidence argument to apply to the copy of the agreement as well – it’s just as important to ensure that MBNA made a valid copy of the agreement because it’s likely that the original won’t be available because it’s been destroyed – so if you can cast some doubt on the copying procedure for the agreement then you will weaken any case against you.

 

Something like this -

 

I would also like to draw to the courts attention that if the original signed agreement is not available for inspection by the court then the copy of the agreement referred to in the particulars of claim also falls under the category of hearsay evidence and I would ask that the claimant is put under strict proof thereof of their compliance with The Civil Evidence Act 1995.

 

 

Hiya all,

first of all thanx so much for your messages, support and advice... it is very much appreciated!

 

Am I putting the paragraph above in the defence, got myself a bit confused with it all... lol..

 

I am going to take this to court 2mrw morning, do i pay a fee with this? the court ordered that i submit an amended defence when link provide me with docs ysee?!?

 

And do i fill in the form suggested by supasnooper? because i'll do that 2mrw too if it would be better?

 

Thanx again for all your help!

 

Pudst

x x x x

[steven4064]

If the court has ordered it, I'm pretty sure you do not have to pay a fee

[pudsters14]

Cool thanx... should I add in the paragraph quoted above?Pudstx x x x

[steven4064]

Yes, but I would add a sentence, "Without prejudice to this, I would respecfully remind the court that the Civil Procedure Rules (CPR PD16 para 7.3) require that, for actions based on a written agreement as is the case here, the original of the agreement should be produced in court"

[angel_1]

hiya pudsters

 

im thinking of you as i read this thread again and the updates so having everything crossed for you

 

off to do a bit of dinner but catch up laters

 

oh and if i havent said it already may we all have a lucky 2009

 

laters angel x;)

[pudsters14]

Brill - will add that in.... thanx! Am taking it 2mrw.... Do i need to fill in the form that supasnooper suggested? Pudst x x x x

[steven4064]

What form would that be?

[pudsters14]

You may wish to file & serve a Notice to Prove (Form N268 ) the agreement.

 

What do you think? I've not heard of this form but am quite happy to do anything that will help my case... should i fill this in 2day?Pudst x x x

[supasnooper]

Puds - save the N268 for later on.

 

I'll post the thread later where x20 comments on when to use it when I can find it

[supasnooper]

Knew I'd seen it somewhere - post #67

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html?highlight=hearsay

Edited January 9, 2009 by supasnooper
thread link

[steven4064]

As has been said - you don't need the N268. You are only submitting a defence ATM there is still a lot of process to go

[pudsters14]

Thanx guys - i will use that when the time is right. Does anyone know the format for witness statements? i need to file mine by the beginning of feb bt not sure how to set it out etc..Thanx againPudst x x x x

[banker_rhymes_with]

Hello Pudsters14!

 

Does anyone know the format for witness statements?

 

The following Post by PT2537 on Pompeyfaith's Thread may help:

 

Help - Post #197

 

Cheers,

BRW

[tendogs]

subbing

[pudsters14]

I am putting together my witness statement now, do I need to copy and send off all sections of the consumer credit act that i'm using and all cases like woodchester etc along with my evidence? and then do I also send copies to Link....... Or do I just list them and take them on the day because I have already sent copies of my evidence with my defence?!? Got myself a bit confused..., LOL no change there then.... Thanx Pudst x x x x

[pudsters14]

HYA ALLL!!!!!!

 

 

JUST SO MY QUESTION FROM YEST ISN'T MISSED...I am putting together my witness statement now, do I need to copy and send off all sections of the consumer credit act that i'm using and all cases like woodchester etc along with my evidence? and then do I also send copies to Link....... Or do I just list them and take them on the day because I have already sent copies of my evidence with my defence?!? Got myself a bit confused..., LOL no change there then.... Thanx Pudst x x x x

 

 

 

Righto, have had a bash at my Witness Statement, found it a bit tricky as it seemed to be a regurgitated defence but hopefully i've got the gyst. As usual I would really appreciate comments and feedback and suggestions for changes etc.

 

 

Got a couple of questions...

1. Is there any legislation against DCA fees?

2. Does the hearsay evidence point need expanding further?

3. Should I include the four corners stuff even though it's in my defence?

 

 

In the copy of docs and list do I put absolutely everything in like my defence/allocation questionnaire/evidence again? Kindof my yesterday question tbh! ....

Will post on W.S. nowwwww!

 

Thanx again for all your help and support!

Pudst x x x x x x x

[pudsters14]

On behalf of: Defendant

Witness: [initials and surname]

Number: [1st]

Exhibits: PUD1, PUD2, PUD3

Date:xx/xx/xxxx

 

 

 

IN THE XXXXXXXXXXXXXXX COUNTY COURT Claim No:

 

 

BETWEEN

 

[________] – Claimant

 

and

 

[________] - Defendant

 

 

 

WITNESS STATEMENT OF Pudsters14

 

I, [NAME] of XXXXXXXXXXXXXXXXXX will state as follows:

 

1. I am a Pudster and defendant in these proceedings. I make this witness statement in opposition to the claimant's particulars of claim and as ordered on the 28th November 2008 in the XXXXXXXXXXX Court.

 

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3. There is now produced and shown to me a bundle of documents marked "Pud1". The exhibit Pud1 contains copies of the documents A – Q served by the claimant and the defendant.

 

4. There is now produced and shown to me a bundle of documents marked "Pud2". The exhibit Pud2 contains {JUDGEMENTS AND CASE LAW}

 

5. There is now produced and shown to me a bundle of documents marked "Pud3". The exhibit Pud3 contains copies of the section 87, 88 and 89 Consumer Credit Act, Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561) and Regulation 2 of Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557) {LEGISLATION}

 

THE BUILD UP TO THE PROCEEDINGS

 

6. The respondent does not accept that the applicant has established a compelling reason why there should be a claim. The claimant has behaved in an obstructive, unreasonable and dishonest manner throughout the proceedings. The respondent would seek to draw the court’s attention to the following matters.

 

7. The applicant/claimant failed to supply the respondent/defendant any documents which the applicant mentioned in their particulars of claim and which were central to the applicant’s case. The respondent asked for the documents, which were pleaded in the claim on 14th May 2008, but the applicant failed until 28th November 2008 to supply any documentation. On the 28th November 2008 and literally minutes prior to entering the Court Room for a directions hearing, the representative from Kearns Agency gave the respondent a barely legible copy of an application form. The claimant has since provided the defendant with a clearer copy of the application form and a copy of some terms and conditions, however these documents are not linked and the serial numbers do not match.

 

8. The claimant has still failed to provide the respondent with the other requested information. They have only since provided a copy of a letter, which they have produced solely for the court process and which is not a true copy of the letter to the respondent (as the respondent has the original). The claimant has also sent some vague calculations. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable, even in my amended defence, to compile a fully particularised defence. It was also impossible to calculate any possible counter-claim.

 

9. The claimant failed to send any Letter before Action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as this gave no fair warning to the respondent.

 

10. The claimant also failed to investigate a dispute as required by OFT guidelines. The respondent reported the dispute to Shaun Jones of Link Financial Services on the telephone in April 2008 just after receiving their letter dated 8th April 2008.

 

11. The claimant also stated in a letter dated 30th May 2008 that they were not ‘entirely satisfied’ that the respondent was indeed their customer, yet still went ahead with issuing court papers.

 

 

THE APPLICATION FORM

 

12. The applicant has now disclosed a copy of the application form (exhibit Pud1), which it’s claim is based upon and I would wish to raise and issue which I would like to expand upon at trial. The application form supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and as a consequence it is unenforceable (by virtue of s127(3) of the Consumer Credit Act 1974).

 

13. The agreement must contain certain Prescribed Terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

14. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement, and, A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

15. I would point out that the claimant is attempting to enforce the agreement/application form and therefore the claimant is required to abide by these requirements.

 

16. The defendant respectfully requests that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to above, otherwise the courts powers of enforcement are surely limited in these circumstances. This was also ordered in the directions hearing dated 28th November 2008.

 

THE DEFAULT NOTICE

 

17. The applicant has still not disclosed the default notice which its claim is based upon, however I did keep the original one sent to me. I wish to raise an issue, which I would also expect to expand upon at trial. The default notice is defective for a number of reasons.

 

18. The default notice dated 24th April 2008 clearly states that the breach must be remedied before the 08/05/2008 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2.

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

 

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

19. The default notice does not specifically identify the debt claimed, the reference number means nothing and it does not state what type of account or agreement it refers to. The notice also states that I have breached clause 1b and 8 of my agreement, however if we look at the application form/agreement or even the separate terms and conditions there is no clause 8 and clause 1b is not something that can be breached.

 

20. The consumer credit act 1974 s87 & 88 (Exhibits Pud3) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) states

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

 

21. At schedule 2 Para 3 of the regulations it states the followingDetails of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3 a specification of: --

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

22. Clearly the fact that the default notice does not comply with the requirements as underlined in Para 18 and 19 above. The provision of the agreement alleged to have been breached is clause 8 relating to repayments and clearly the agreement/application form produced does not have a clause 8 therefore there is no way clause 8 could have been breached. Clause 1b is not relevant to the defendant and only appears on a set of terms and conditions which is not linked to the application form/agreement and is therefore there is no way that clause 1b could have been breached. The default notice also does not give the required time for remedy of any breach which means the case is severely prejudiced against the defendant as the claimant has failed to allow the required time to remedy the default.

 

23. These are not de minimus issues and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 (Exhibit PF2) in the Court of Appeal, in this judgment Kennedy LJ states inter alia

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

 

24. Therefore, it would be the respondents position that the applicant/claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective.

 

THE ASSIGNMENT OF THE DEBT

 

25. The defendant was never sent a notice of assignment from the original creditor MBNA nor was a copy of the notice of deed of assignment issued under Pre-Court Protocol (Sect 18).

 

26. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor.

 

27. Therefore without the said information any alleged assignment of this debt to the Claimant, Link Financial, is ineffective and so the Claimant has no standing before the court

 

THE AMOUNT CLAIMED

 

28. The claimant has still failed to fully particularise the amount claimed in monetary terms. They have provided some vague calculations however they have still failed to provide a breakdown of the starting balance of the claim (£XXXX.XX).

 

29. The applicant has also failed to include any details of penalty charges or whether the balance contains any insurance product.

 

30. The claimant has claimed statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. The defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974.

 

31. The claimant has also claimed a collection fee which is against OFT debt collection guidelines.

 

THE HEARSAY EVIDENCE

 

32. The defendant would also like to bring the court’s attention to the claimant’s use of ‘hearsay evidence’ and the paperwork they are duly relying on for their claim. The claimant has attached a letter to their allocation questionnaire and amended particulars of claim. They are claiming that this is a true copy of a letter sent to the defendant, however this is not the case. The defendant has the original copy of the letter and there are definite differences between the two. The letter Link are using as true hearsay evidence is in fact a document they have produced merely to aid their court case and should not be allowed as evidence in the court.

 

33. This puts the defendant at a distinct disadvantage and calls into question all other ‘evidence’ and ‘true’ copies that the claimant are planning to use.

 

34. Therefore the defendant is requesting that the claimant is put under strict proof thereof of their compliance with The Civil Evidence Act 1995. The Civil Evidence Act 1995 states that proof of the authenticity of the documents must be provided under section 8(1)(b). This is including, but not limited to,

 

'(i) a copy of the procedure(s) used for copying, storing and retrieving documents

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.'

 

35. In addition to the points raised, I would ask for the court to allow me to further amend my defence again. Despite my requests for further information and given that I am a litigant in person there are a number of other issues which are still unresolved and the claimant has so far refused to provide the said paperwork.

 

I believe that the facts stated in this witness statement are true.

[pudsters14]

There's a couple of smiley faces that made an appearance on there which i must have put symbols on for or summat... LOL

 

Do I need a bit more of a conclusion?

 

Pudst x x x x x x

[pudsters14]

Bump Pls

[Docman]

Hi Pudsters

 

Read the last few threads with interest as I'm up against MBNA myself. Bit puzzled why you are putting in a witness statement though. I assume you have put in a defence which includes a lot of what is in the statement. You also seem to be setting out a skeleton argument which I think is a different document filed later in the proceedings.

 

I don't think you need to copy our chunks of the Act or cases but should have these ready to put together in a document bundle (again a little bit further on). Perhaps someone else can comment?

 

That said, I think you need more about the assignment. Did you put anything else in the defence about this as there are a couple of cases which can be helpful about the validity of the Notice of Assignment.