Nationwide CCA Court Hearing v Jax

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

it must be

Waksman made that clear, the recon must contain everything that was in the original

I think I'm just not being very clear lol.

The signed agreement (application form) where it says 'I have read the part USE OF INFORMATION' and the part 'USE OF INFORMATION' is ON the front page of the agreement (application) just before where it says you read it.

The recon is just the T&C's not the front page of the agreement (application) as they sent a copy of the original of that (which includes the USE OF INFORMATION bit)

So does the USE OF INFORMATION (data protection act bits) need to be in the t&cs as well as on the signature page of the agreement ?

(Current Nationwide CC agreement - http://www.nationwide.co.uk/pdf/cred...4433-CCard.pdf - doesnt have the DPA stuff in - because its on the agreements (ie where you give them the info) )

[jax007]

Re: Nationwide CCA Court Hearing v Jax

I note that my recon document does not state how much the default charges are ... just that you will be charged. Is this a critical factor.

Also I have a copy of the original application/agreement but the recon document really doesn't bear much resemblance to the orginal.

Wonder if Paul could have a look see at this thread and let me know where I should go from here.

I have written to Court and asked for more time to amend my Defence as I still haven't received the Order from them - only the copy that Eversheds sent which only gave me a weekend to amend my Defence.

Would appreciate some help please.

ta muchly
jaxx

[jax007]

Re: Nationwide CCA Court Hearing v Jax

2nd deadline is 11 October which is a standard disclosure list - what's this?? any help here would be welcome.

What is this? And what do I need to do? Only have till Monday to sort this out.

See attached letter - Eversheds are suggesting I withdraw and I have to rely on my original defence as I didn't file in time - funny how they're suddenly on the ball with dates!!!! However, I STILL have not received Order from Court nor have I had a reply to my request for more time to submit amended Defence. Should I write to Eversheds and tell them I have done this??

[pt2537]

Re: Nationwide CCA Court Hearing v Jax

i dont want to sound like the bringer of doom and gloom,

But if you didnt plead properly , then you are at risk .

Carey made it clear that you must plead the necessary breaches which you wish to rely on, a simple i cant remember these terms will not suffice if carey is to be believed.

if you had leave to amend but didnt, then this is likely to also be frowned upon by the court if you then try to amend your defence. You will face a costs order without doubt now,if you amend, unless you can get their consent.

These cases are proving difficult to win, even for us

[jax007]

Re: Nationwide CCA Court Hearing v Jax

i dont want to sound like the bringer of doom and gloom,

But if you didnt plead properly , then you are at risk .

Carey made it clear that you must plead the necessary breaches which you wish to rely on, a simple i cant remember these terms will not suffice if carey is to be believed.

Sorry, Paul - not sure what you're saying here??? How do I know whether I pleaded properly?

if you had leave to amend but didnt, then this is likely to also be frowned upon by the court if you then try to amend your defence. You will face a costs order without doubt now,if you amend, unless you can get their consent.

The only reason I know that I had leave to amend was when I received the letter from Eversheds enclosing a copy of the Court Order - I have received nothing from the Court. Even with Eversheds copy of the Court Order I only had 1 working day to submit an amended Defence.


Are you suggesting I don't have a defence here?

[pt2537]

Re: Nationwide CCA Court Hearing v Jax

i dont want to sound like the bringer of doom and gloom,



Sorry, Paul - not sure what you're saying here??? How do I know whether I pleaded properly?




The only reason I know that I had leave to amend was when I received the letter from Eversheds enclosing a copy of the Court Order - I have received nothing from the Court. Even with Eversheds copy of the Court Order I only had 1 working day to submit an amended Defence.


Are you suggesting I don't have a defence here?

Nope, im not suggesting you dont have a defence, im merely pointing out the procedural errors that the opponents may try to rely on.

If you never recieved a copy of the order, was there an application by the Claimants to amend? did you get notice of a hearing? did you attend the hearing? did the judge give directions on the management of the case? in respect of the admission of the amended pleadings and the leave for the amended defence etc

If you were not on notice of any of this, then you will need to apply for leave to be granted to allow you to amend on the basis that you were not on notice of the leave. but this really is something to look at and seriously consider as there are costs implications too,

In respect of my comments in regards to Carey

The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim

that is from Carey

What the judge is saying, you must bring a positive assertion to the table, that the agreement is unenforceable and why!

You cannot say i dont remember what it had with it, and still get home, that is what the courts are looking for nowadays

It is extremely hard for us to fight the lenders, so i know how Litigants in person feel, however, you really do need to pull the agreement apart and find faults with it and then plead those faults

[jax007]

Re: Nationwide CCA Court Hearing v Jax

This is the contents of letter from Eversheds dated 13 August 2010 (my letter of 21 September 2009 attached below).

We re

fer to previous correspondence in relation to the above matter.
We note your comments in your letter dated 16 July 2010 and references to comments contained in your letter dated 21 September 2009, they are however not accepted.

Furth

ermore, we note from previous correspondence received from you that you make

r

eference to your attempts to settle this matter out of Court, however we have received
no offers of settlement from you to date, despite our client providing you with a further

o

pportunity to do so in our letter dated 28 June 2010.
Our client has now instructed us to make an application to amend the Particulars of

C

laim. We enclose a copy of the application which has been filed at Court.

F

urther, in light of that application, we consider that the Court will need to make

dir

ections for dealing with the claim going forward. To that end, we would refer you to

th

e draft order which is attached to the aforementioned application.
Should you have any queries in relation to the above, please do not hesitate to contact

our Miss Nicole Pearson on the direct dial listed.

If you never recieved a copy of the order, was there an application by the Claimants to amend?

see above

did you get notice of a hearing? did you attend the hearing?

No and no

did the judge give directions on the management of the case? in respect of the admission of the amended pleadings and the leave for the amended defence etc

see attached 'Court Order for Restored Claim' - is this what you mean? This was enclosed with letter from Eversheds stating that they had been granted permission to amend their POC.

What the judge is saying, you must bring a positive assertion to the table, that the agreement is unenforceable and why!

You cannot say i dont remember what it had with it, and still get home, that is what the courts are looking for nowadays

It is extremely hard for us to fight the lenders, so i know how Litigants in person feel, however, you really do need to pull the agreement apart and find faults with it and then plead those faults

Do you think the agreement is unenforceable??

Where should I go from here?

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

I said what I thought earlier in this thread and I will again. I don't think you have a prayer, the agreement will be deemed enforceable, and you are heading for a lot of stress and costs for no apparent reason, and should be negotiating a sensible payment/settlement.

Have you actually read any other Nationwide cases with similar documents ? That might help - this one Nationwide County Court claim is a 1999 one, appl form with tri fold leaflet terms, lost with costs - AND was pre Carey, dont know how much he got a £1k discount on the costs tho so I would expect them to have been a few thousand. I can get other links for you if you want but I'm sure you can manage lol.

You need to be preparing your disclosure list. Read CPR 31.

I'm sure Paul will help you

[jax007]

Re: Nationwide CCA Court Hearing v Jax

I said what I thought earlier in this thread and I will again. I don't think you have a prayer, the agreement will be deemed enforceable, and you are heading for a lot of stress and costs for no apparent reason, and should be negotiating a sensible payment/settlement.

Why do you consider it enforceable Ame?

ok not sure if this has been raised, i havent had time to scrutinise the thread, however, a party amending its pleadings, is liable for the costs of the party who has to amend either their defence or claim as a result.

So, Eversheds client will be liable for any of your costs as a result of their amendment.

Did you pick up on this Ame?

I can get other links for you if you want but I'm sure you can manage lol.

You trying to say something???

You need to be preparing your disclosure list. Read CPR 31.

I'm sure Paul will help you

God I hope so .. only got till Monday!!!! But I can fax it. Have read through - doesn't mean much to me I'm afraid, but picked up on a couple of points (see below).

<H2 class=sectionHeading>Scope of this Part

31.1

(1) This Part sets out rules about the disclosure and inspection of documents.

(2) This Part applies to all claims except a claim on the small claims track.

</H2>

Allocation not to be decided till December!

Procedure for standard disclosure
31.10

(1) The procedure for standard disclosure is as follows.

(2) Each party must make and serve on every other party, a list of documents in the relevant practice form.

(3) The list must identify the documents in a convenient order and manner and as concisely as possible.

(4) The list must indicate –
(a) those documents in respect of which the party claims a right or duty to withhold inspection; and

(b)
(i) those documents which are no longer in the party’s control; and

(ii) what has happened to those documents.


(Rule 31.19 (3) and (4) require a statement in the list of documents relating to any documents inspection of which a person claims he has a right or duty to withhold)

(5) The list must include a disclosure statement.

(6) A disclosure statement is a statement made by the party disclosing the documents –
(a) setting out the extent of the search that has been made to locate documents which he is required to disclose;

(b) certifying that he understands the duty to disclose documents; and

(c) certifying that to the best of his knowledge he has carried out that duty.

Do I have to do this and again what is the format??

(7) Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also –
(a) identify the person making the statement; and

(b) explain why he is considered an appropriate person to make the statement.



(8) The parties may agree in writing –
(a) to disclose documents without making a list; and

(b) to disclose documents without the disclosing party making a disclosure statement.



(9) A disclosure statement may be made by a person who is not a party where this is permitted by a relevant practice direction.

Should I be pursuing (8) (a) and (b)??

Specific disclosure or inspection
31.15

Where a party has a right to inspect a document –
(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

(c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

(Rule 31.3 and 31.14 deal with the right of a party to inspect a document)

I presume it would be sensible to request inspection of the original CCA and not a reconstituted copy??

<H2 class=sectionHeading>Procedure for standard disclosure

31.10

(1) The procedure for standard disclosure is as follows.

(2) Each party must make and serve on every other party, a list of documents in the relevant practice form.

</H2>
Which is??

This is a the Court Order which was sent by Eversheds

Before District Judge Morris sitting at Willesden County Court, 9 Acton Lane, Harlesden, London, NWIO 8UX.

IT IS ORDERED THAT

1. The Claimant be.granted permission to amendthe Particulars of Claim in the form attached to the Claimant's
application dated 13 August 2010.
2. The filing of the Amended Particulars of Claim referred to in paragraph 1 above to be dispensed with but the
Amended Particulars of Claim to be served on the Defendant within 14 days of the Order being made.
3. The Defendant be at liberty to file an Amended Defence, by 4:00pm on 27 September 2010.
4. The parties shall carry out standard disclosure by list to be served on the other by 4:00pm on 11 October 2010 .

.J. Both parties shall comply with any request to inspect the original of a copy document by 4:00pm on 18 October 2010. So they will have to tell me whether or not they have the original and, if not, what has happened to it?
6. Parties to exchange witness statement of fact by 4:00pm on 09 December 2010.
7. Listing Questionnaires to be filed by 4:00pm on 23 December 2010.
A hearing fee of £500.00p must be paid by the Claimant by the 23 December 2010. If the Court is notified in writing that the hearing is no longer needed the hearing fee will be refunded in full or in part in certain circumstances, please refer to the leaflets explaining more about what happens when your case is allocated to
track.

8. A trial date to be listed by the Court on 10 March 2011 at lO:30am with a time estimate of 1 day.
9. Costs in the case. Meaning??

Dated 23 August 2010

Think that's a bit to be getting on with, eh

jaxx

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Attached is letter from Court following my request for extra time to submit Amended Defence on the basis I have not received the Order from the Court - only a copy of the Order from Eversheds with their Amended POC which only gave me a couple of days to create and submit Amended Defence.

Can someone explain exactly what this letter means? Especially the last paragraph about costs - does this mean the whole case costs?

Should I proceed with Amended Defence (I think I should as my original defence - see below - I feel is not adequate in stating the reasons I am defending which is on the basis the agreement is unenforceable?

Ames I know you think it is - but pt2537 has intimated it might not be and I would like clarification on this - I do have a bit of time to withdraw methinks but feel I should meet the deadlines quoted in the Order in the first instance.

My original defence ............

3. Defence:
1. The Claimant's particulars of claim are vague and fail to disclose any cause of-actlorr; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR.

2. The claim fails to disclose sufficient information as required by the CPR, there is no date of alleged
agreement, no date of alleged default or details of any default no.ti.~~s,eryed.in accordance with s87 (1)

Consumer Credit Act 1974, the claim is missing vital information. "
3. Without admission that any cause of action is shown by the Claimant tt-ls denied that the Claimant has a claim whether as pleaded or at all.
4. No documents supporting the claims in the particulars have been offered which the Defendant needs to establish what agreement it is that this action is based upon.

5. Without clarification of the Claimant's claim, the Defendant is extremely disadvantaged and the
Claimant's claim appears without merit.

6. Further to above the Defendant is unable to plead effectively or at all. The Defendant is embarrassed .

[pt2537]

Re: Nationwide CCA Court Hearing v Jax

oh boy,

Ok, if this sounds blunt, i apologise, it is merely intended to set out the position as i see it, warts n all.

You had leave to file a defence and failed.

You failed because you say you never recieved the order.

You say the order arrived late in the day.

So now you want to consider amending the defence.

The problem you face here is this, the defence you put forward is not sufficient, so it is open to be dismissed. it doesn't put forward a defence in accordance with CPR 16. i do not go into the details as to why, the CPR clearly sets out what you must say in the face of an allegation.

suffice to say a bare denial does not satisfy, where there is a denial there must be a positive averment as to the facts relied upon in opposition

So, you now need to amend the Defence.

So what are the consequences, well, firstly, the court may take the view that you should have applied when it became clear that you that you couldnt comply due to non reciept.

you didnt apply, so where are you now?

well, you would need to apply, for sure, but, you do face a large risk.

If the application is unsuccessfull, then you will face the thrown away costs of the hearing. This could possibly run into a few thousand pounds.

You could succeed and get the order for time to amend, but even if you win, because you didnt apply when you should have, you may still face costs against you for the Claimants lost costs due to having to compile a reply to defence etc

so what the court is warning you about, is that you now face a risk no matter what

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Thanks Paul that is very helpful - I think I see what you're saying ..........

1. The Claimant amended their POC and therefore (as you pointed out earlier) would be liable for costs.

2. If I apply for the Order to be varied, ie to allow me time to submit an Amended Defence, this may or may not be granted. If it IS granted, I then become liable for costs if I lose the case because I have asked for the variation?

3. The reason I didn't submit an Amended Defence is because I did NOT receive the Order from the Court - EVER - and I still haven't received it! I only got a copy of the Order as an enclosure from Eversheds with their letter pointing out I hadn't complied with it and this was the Friday, I think, before the Amended Defence had to be in on the Monday.

4.

So what are the consequences, well, firstly, the court may take the view that you should have applied when it became clear that you that you couldnt comply due to non reciept.

you didnt apply, so where are you now?

I did fax the Court before the deadline (ie before 4 October 4pm) pointing out in a letter that I had not received the Order from the Court - and the letter in my last post is obviously a reply to that letter. I'm presuming you are saying that I should have submitted one of the legal forms and not just a letter?

I will today submit my disclosure list and await your thoughts on the above.

Do you think, in this particular instance because of the situation, I would be best placed to withdraw?

jaxx

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

Just to pick up on something you mentioned earlier (and regardless of my view on the case)

.J. Both parties shall comply with any request to inspect the original of a copy document by 4:00pm on 18 October 2010. So they will have to tell me whether or not they have the original and, if not, what has happened to it?

If they disclose the agreement (copy of original) then you can ask to inspect it. If they only disclose a recontruction, then you can request to inspect it, but they can;t suddenly pop up with an original in court (as they havent disclosed its existence). They are most likely to say it was in their possession but they no longer have access to it. You should get their disclosure list today. (FYI the application form is the front page of the original agreement so that should be in their disclosure list - it is only the original copy of the reverse of the form that they are missing and have reconstructed)


Oh yes, and I didnt say I think its enforceable, I said the court will judge that it is enforceable. tbh my view has no relevance to you, the courts view has every relevance, therefore I can only tell you my view on what the courts view will be - if that makes sense.

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Oh yes, and I didnt say I think its enforceable, I said the court will judge that it is enforceable. tbh my view has no relevance to you, the courts view has every relevance, therefore I can only tell you my view on what the courts view will be - if that makes sense.

Understand perfectly Thanks Ames - your opinion as ever is invaluable and it is always good to get more than one set of eyes on these things!

Below is my standard disclosure list with the help of Paul - can't think of anything else other than correspondence from KPR Debt Collection which is part of Nationwide (so they say) - should I list this separately or would it come under party-to-party correspondence?

The only other thing he mentions is ..............
Terms and conditions (original Defendants copy)
but I don't have the original T&Cs!!

STANDARD DISCLOSURE LIST

1. Copy of signed application form
2. Reconstituted copy of the terms and conditions (Claimants copy)
3. Party-to-Party correspondence common to the parties

If they disclose the agreement (copy of original) then you can ask to inspect it. If they only disclose a recontruction, then you can request to inspect it, but they can;t suddenly pop up with an original in court (as they havent disclosed its existence). They are most likely to say it was in their possession but they no longer have access to it. You should get their disclosure list today. (FYI the application form is the front page of the original agreement so that should be in their disclosure list - it is only the original copy of the reverse of the form that they are missing and have reconstructed)

I thought under Carey they could only reconstruct the Agreement - not the T&Cs - would you consider what they have reconstructed to be an Agreement or T&Cs (or both)??

[Amethyst]

The 'abridged' t&cs that would have been on the back of the form are part of the signed agreement. They can reconstruct the whole lot under Carey, but not for court (though courts are allowing it if you admit to having the debt)

Legal Beagles Consumer Forum is the agreement - but is only the front. They have reconstructed the terms applicable, of which either all or a few of which would have been on the reverse of the agreement as well as the leaflet (think I posted a copy earlier) being supplied additionally (else agreements would be 10 pages long if they had all the terms on so they just put the prescribed stuff (interest/repayments etc) on the back and refer you to the leaflets for the rest - but they do have to supply that leaflet at the same time)

they will say I assume that they only store a copy of the front as that has your personal info on and the back is standard so they only keep a generic copy, which would have been on the reverse and/or sent under their standard procedures (witness statement ahoy), and kaboom full agreement incl terms.

not saying its right, but its the way things are going.

Thats my view anyway, Paul may disagree.

i'd include the KPR stuff, as they acted on behalf of nationwide. I'd probably list it seperately to the party to party correspondance as it is a third party. But only if it has relevance to the case.

Your disclosure list should include the bittys ref I have searched high and low in every possible place etc I believe. Should be in the practise direction accompanying the CPR.

Zhan has just had a disclosure list through from Amex i think, so you can look on her thread for how it should look.