Another court case - hearing on the 24th August..HELP!

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Hi everybody,

Today...is not a good day ... I was hoping today is D-day. Eiither I owe them money or not but instead I got an adjourned and I have to continue this path and do an amended defense before 7th September for them to reply by 21st September....purely due to the fact they don't bring to the court the "upgrade" T&Cs from store card to credit card.
I do believe there is an element of luck involved as who you get as your DDJ....

Gonna have a cupt tea now & will tell all about it for reference here later....

[Amethyst]

Re: Another court case - hearing on the 24th August..HELP!

Upgrade from store to credit card isnt mentioned in their witness statement is it. If they dont supply the documents upgrading to a c/card I would think the judge can only enforce the debt up to the point it was transferred to a c/card ? Look forward to hearing a little more.

Enjoy your cuppa x

[Horse_with_no_name]

Re: Another court case - hearing on the 24th August..HELP!

Hi Zhan ! What happened about the Deed of assignment stuff - did he dismiss those arguments ? They are part of an Act of Parliament ..

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Hi All,

So I went to court this morning to be met with the same solicitor who represented Amex in my summary judgement application. By now I am so very tired having not sleep till 3 am trying to find material to bolt my defense. Mr B the lawyer reppresented CL finance wanted to have a word with me so I went to talk to him. He went through my WS & said that he didn't understand a couple of things particularly when I said in my WS that I have not been given a true copy of the agreement for account number 54xxxx.

well then I asked him to have a look at the copy of the agreement & then he looked and noticed that its not the same which he said that he will asked the client about it before we went to court. & then he asked if there is anything else & I said no because I only am going to use his client WS to defend. He said sthg along the line that last time (with amex) I ambushed him with legal authorities.

Then he went to make the call to his client. Whilst waiting the clerk came out & said that the judge didn't have the Claimant WS. Didn't ask about my WS so I presumed he already got it.

We went in about 10.45. First thing the judge asked me whether I have submitted a statement in reply to the Claimant WS...said I didn't because I didn't received the WS after the I submit the WS. Then the judge said to me you were supposed to put in a statement at least 14 days before the hearing which made me realised that he was talking about my WS that he hasn't got it with him there & didn't bother asking me before the session began..... by this time i have a sinking feeling about this judge. Mr B informed the judge that the client had received their copy of the WS. So I give the judge my copy which has some scribble on it!

Then we procede to matter of the court..he asked me whether it is my signature & address etc etc on the agreement. I said yes and I said that I am not disputing anything on the agreement bar the account number being different from the one that they are claiming. Then i said that the WS stated that the acc number 541xxx is for a store card and yet the default notice stated it is for a credit card. The judge didn't quite understand my point & so Mr B helped to explain.Mr B explained to the judge that after I informed him about this earlier he made a call to the client who explained that my account has been upgraded around feb 2007 albeit Mr B said that at the moment it is only his words as there is no evidence.

The judge asked me about the card, I said I didn't ask to be upgrade. He said, you didn't apply for the card? & I said no. Then he said did they just post you the card, I said yes because that's what they did. Then he asked me you used the card without knowing the T&Cs, I said yes which he replied, that's a bit reckless isn't it? ( felt like saying aren't OC a bit reckless just sending people
a credit card that she didn't actually want& had to use due to financial difficulty?)

In my head i thought if they have written to me so surely there is a letter somewhere that they can produce together with the rest of the documents. To be honest, what i do remember (vaguely) that they just rang me up and asked & then send me the card.

Then he asked me if I have issue on the enforceability of this agreement & I said no although I said subject to what will be given to me on this "upgrade" T&Cs. I said to him I've asked the Claimant since early March for all the documents and its taken them 5 mths & still they have not bring about everything. I think by this time I have annoyed the judge.

Then he asked me if there is anything else, I said there is the issue of
the DN supplied by the Claimant being not the same as the original they sent me which I found in preparation of the court. Then he made comment about I keep the DN but not the agreement... I said well I found the DN which is just recent ly sent but we are talking about an agreement dated 1999. ( By now, I am very sure its not my day!!!) I gave him my original, he looked at it compared it with the claimant copy and there are several difference the date, the phone, the references and I gave one of PT's phrase " as per the judgment Carey vs HSBC, the law of evidence hasn't been altered by Carey V hsbc, i.e the Claimant cannot reconstitute documents other than credit agreement. The judge asked Mr B about this, & Mr B replied sthg along the line that it is computer generated nad the judge yes of course they don't keep copy of the DN... Then the judge said to me so you did get the DN.. I can't remember what else he said because by this time I know its not going mhy way.

He said something about there is no way he is going to dismiss the case. ( I am wondering why not?)He said I am entitled to request to see all the documents ( 5 months !!) so he has to go for adjournement and he wants me to do an amended defense... then he asked me if there is anything else.

Then I produced the issue of the validity of the assignment, with the help of HWNN earlier this morning, I said to the judge because the Claimant bring S136 LoP Act 1925 in their WS, I went & had a look and I gave both the judge & Mr B extract of S205, s74 & S1(3)(a)of the LoP(misc Prov) Act1989. I gave them the relevant extract from Statutory Instrumenmt regarding these law.So the judge asked Mr B about this who didn't say anything & then the judge said this is not the whole agreement.....


So in the end, I suppose I came out still alive as the judge asked me to do an amended defense by the 7th.....

Anybody out there has a case law regarding deed of assignment?

[middenmess]

Re: Another court case - hearing on the 24th August..HELP!

Not the best of days but at least you're still alive and with more time to hone your defence.

I still think that the points I made last night about the assignment might help you but there's some work to do there.

Keep fighting!

[Horse_with_no_name]

Re: Another court case - hearing on the 24th August..HELP!

I gave both the judge & Mr B extract of S205, s74 & S1(3)(a)of the LoP(misc Prov) Act1989. I gave them the relevant extract from Statutory Instrumenmt regarding these law.So the judge asked Mr B about this who didn't say anything

Lost for words eh ? like a rabbit caught in the headlights....

We need to find you some good case law. But I note that the judge did not dismiss your points on the above.

[banker_rhymes_with]

Re: Another court case - hearing on the 24th August..HELP!

Hello Zhan!

You did OK...lived to fight another day.

Now, the key is to keep going at this, so that by the next time, you will know everything by heart, and can hit back much harder.

Take some time out, but get back into this within a day or so, and then plan the next outing.

Remember how knackered you were Today, and make sure by the next Hearing you know it all well enough to get a good Night's sleep beforehand.

Cheers,
BRW

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Lost for words eh ? like a rabbit caught in the headlights....

We need to find you some good case law. But I note that the judge did not dismiss your points on the above.

Thank you so much for helping me out with those regs earlier this morning ..... I think it kinda taken him aback... I am not sure whether he accept my points when his comments was that the DoA given to me wasn't the whole agreement.I was hoping he will consider that given that I requested all this info early March so CL Finance have ample time to dig out ( if they had it in the first place) all the info regarding the credit card acc but didn't deliver so he would dismiss it.

I said this because last year I was in court with Asset Link and they didn't have a copy on notice of cancellation and the judge dismiss the case on the ground that they have ample time to give all the relevant docs to me & didn't and he the DDJ didn't want waste court's time and money... how is it the same situattion treated differently....?
------------------------------- merged -------------------------------

Hello Zhan!

You did OK...lived to fight another day.

Now, the key is to keep going at this, so that by the next time, you will know everything by heart, and can hit back much harder.

Take some time out, but get back into this within a day or so, and then plan the next outing.

Remember how knackered you were Today, and make sure by the next Hearing you know it all well enough to get a good Night's sleep beforehand.

Cheers,
BRW

Hi BRW, nice to see you here.

Unfortunately for me ..another day ... another case. The judgement today is not sthg I was hoping for as I have my Amex case to think about... Amex is taking me to fast track even though they lost in SJ (i got a thread for Amex here too) . Ironically, Mr B was the one represent Amex at that time. So I have a full schedule this next weeks as not only I have to submit amended defense re Cl finance on 7th I also have to submit my Amex witness statement on the 3rd .... ohh joy!!

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Hi all,

Anybody got a case law relating to Deed of assignment?

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

HI everyone,
Below is the copy of the agreement (1st page is all my details & 2nd page is the T&Cs) & the DN sent to me, the account number on this agreement bear no resemblant to the credit card account on the DN nor the POCs that they are chasing although both bear the name of Debenham but the agreement below is for a storecard which I no longer have.

I have read through the T&Cs and nothing seems to show that the 2 are related apart from the name being Debenham but maybe fresh eyes will be able to see something that I don't.
I have to submit a witness statement before the 10th as it is 14 days before the court hearing so would really appreciate comments from good people out there.

Zhan

Hi All, I have just been going through the disclosures from CL Finance that they sent together with their witness statement and arrived after 10th July (date of WS submission) & I noticed that the copy of the so-called agreement they sent me dated 29th June was not a full copy as it is missing a page in the middle. That 2nd page of the agreement start from no 5 - The credit limit.

So here it is the scan of that missing page



& I would like to ask for expert opinion particularly on section 1 & 2 on this page which I've extracted from above so it is much clearer for all to see;

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Correct me if I am wrong here.I was trying to figure out how to differentiate the agreement that was meant for a store card to an agreement that's meant for a credit card & I think I've just found it re above section1 & 2 ofthe so-called agreement. What do you all think?

Extract from section 2 above;

" We will open an Acc which may be used by you to purchase goods and/or services from Suppliers nominated by us.

Except for any purchases which we allow you to make on the account before a card is issued or as otherwise permitted by us from time to time all purchases on the Account shall be made from the Main Supplier by production of the card to the Main Supplier."


As per section 1 of the agreement, "main Supplier" means the retailer named on the faced of the card. It did state as Debenham mastercard on the face of the credit card but that's just about it really.

What do you all think? If it were to change to a credit card what would the agreement be like?

[Amethyst]

Re: Another court case - hearing on the 24th August..HELP!

Store cards - lend to higher risk customers and restrict where and what they spend - have low credit limits and high rates. Credit cards have no restrictions on where to spend. So yep that sounds like the right part.

Moving store card holders to credit cards I would think there is more an argument for irresponsible lending unless new credit checks were done/limits remained same. I think they should actually have asked you if you wanted a credit card as I can imagine that if you had a Debenhams Store card, because you couldnt get anything else for credit, then they just switched it to a general credit card, it would be a case of weeehayyy I can shop everywhere now.

There was a competition commission did a report on store cards in 2006.

Is the change from storecard to credit card quite a big part of your case ? I noted they adjourned due to the agreement not being there for the c/card part.

[middenmess]

Re: Another court case - hearing on the 24th August..HELP!

Hi Zhan

ramblings and Rehashing old ground in an attempt to help

As stated by me and others that assignment has problems and without being produced in its entirety to you should not be used in court by them .

IMO the original card--'Debenham's Options' could not have been 'morphed' into an ordinary credit card without agreeing to --and signing up to--a completely new set of T & C's.

You've posted the missing page--is that from your original or was it received from them?

That page is headed as 'Summary of Amendments Since March 1995'--if you took out the original Debs card in 1999 why would you need amendments from 1995 to ????

Did your card change from 'Debenham's Options' to a 'Debenhams standard dual card?'

Re-reading the thread there would seem to be many areas that are iffy so I think you need to itemise all the issues that you think are incorrect and post them here so that those with better knowledge than me can suggest how to proceed.

Wish I could be of more help as I can sense your anxiety--perhaps a PM to a site team member might be worth while?

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Store cards - lend to higher risk customers and restrict where and what they spend - have low credit limits and high rates. Credit cards have no restrictions on where to spend. So yep that sounds like the right part.

Moving store card holders to credit cards I would think there is more an argument for irresponsible lending unless new credit checks were done/limits remained same. I think they should actually have asked you if you wanted a credit card as I can imagine that if you had a Debenhams Store card, because you couldnt get anything else for credit, then they just switched it to a general credit card, it would be a case of weeehayyy I can shop everywhere now.

There was a competition commission did a report on store cards in 2006.

Is the change from storecard to credit card quite a big part of your case ? I noted they adjourned due to the agreement not being there for the c/card part.

Thanks for looking in Amethyst. Having had more time to look at this again and read the "assignment on Debt" thread, I think my defending strategy plan has changed a bit.
Instead of about the store card change to credit card, my first point of defense will be the validity of the DoA. and then only about the agreement not being the agreement as stataed in POC nor DN.

You've posted the missing page--is that from your original or was it received from them?

I don't have the original at all, middenmess. They gave me that 2 pages agreement (in earlier post) as part of the order from the court and then when they submitted their WS tgether with disclosure, I saw they have this page in between the 2 pages agreeement that was sent to me.

As stated by me and others that assignment has problems and without being produced in its entirety to you should not be used in court by them .

good point MM. Eventhough they said the agreement itself is commercially sensitive, I think I have the right to see it correct? PT stated on the Assignment On Debt thread that in Van Pelias construction, the judge ruled that debtor is entitled to view the sale agreement to ensure that the assigneecan g ive him good discharge under the contract..

IMO the original card--'Debenham's Options' could not have been 'morphed' into an ordinary credit card without agreeing to --and signing up to--a completely new set of T & C's.

That's what I thought but I need to be able to make this point across that a) I didn't ask for the credit card b) i didn't sign any agreement relating to the credit card ...upgrade or no upgrade from store card.

That page is headed as 'Summary of Amendments Since March 1995'--if you took out the original Debs card in 1999 why would you need amendments from 1995 to ????

You got me there...:tinysmile_hmm_t2:

Did your card change from 'Debenham's Options' to a 'Debenhams standard dual card?'

Can't remember about the Debenham's option card but it was definitely change to Debenham standard dual card.

[zhanzhibar]

Re: Another court case - hearing on the 24th August..HELP!

Re-reading the thread there would seem to be many areas that are iffy so I think you need to itemise all the issues that you think are incorrect and post them here so that those with better knowledge than me can suggest how to proceed.

Wish I could be of more help as I can sense your anxiety--perhaps a PM to a site team member might be worth while?

Ok here goes;
issue (1) to (3) are definite but do not know how to put it in a "court language" for my amended defense , (4) & (5) I am not so sure how to go about it at all.

1)the validity of DoA under s136 LOP 1925

Horse has given me this;

A) A debt is signed under s136 Lop 1925, which refers to "Legal Assignment of things in action"

B) s205 (1)(xx) Lop 1925 defines "property" to include any thing in action

C) s74(3) & s74(4) LoP 1925 require a deed executed by an attorney, which conveys an interest in property, to be attested by a witness.

D) s1 (3)(a) of the Law of Property (Miscellaneous Provisions) Act 1989 also state for a deed to be validly executed by an individual it must be attested by a witness

E) Your alleged deed of assignment is improperly executed and therefore not perfected. The assignment cannot be absolute, and the Claimant has therefore commenced proceedings in his own name without a right of action, the claim is therefore fatally flawed.

F) You also require certified proof of the instrument creating the alleged Power of Attorney - as per section 3, Powers of Attorney Act 1971.

Plus the DoA given to me is just a supplemental to the agreement as stated so in theDoA. If I am correct, Van pelias construction judgement entitled me to see the sale agreement.


2) the Account number in the so-called agreement (a storecard) is not thesame as the credit card account that they put in DN & POCs.

They said in court which is not substantiated that my account has been "upgraded" to be a credit card however
a) I didn't ask for the card & I didn't sign anything for this "upgrade" card
b) no T&Cs for this "upgraded" account. Surely there has to be a difference between these acc considering the agreement disclosed specifically said that I can only purchased from Main Supplier i.e Debenham ( if my understanding is correct on this)
c) no mention anywhere in the agreement that they can upgrade my store to a credit card
d) even if they did upgrade my account then surely they should have got a copy of whatever relevant info that can linked the 2 accounts together when they reply to the order ofthe court to give me what I want to see. Instead they are wasting court time & money to have this case adjourned for them to dig around & find that they have nothing to bring ..unless of coz suddenly it conjure out of nowhere..
e) as I haven't seen it so there is the issue of whether or not the upgraded agreement is enforceable.



3) the DN not being the same copy as the one i have
a) Carey v HSBC; law of evidence hasn't been altered. They cannot reconstitute documents other than credit agreements.
b) also the use of a forged document by a Claimant is sufficent to justify the dismissal of the claim Masood & others V Zahoor & others EWHC 1034 (2008)
c) it didn't give specific date as per Schedule 2(3)(c) of consumer credit (Enforcement,Default & Termination Notice) . this bring about the usual S88(1), S87(1)(a) & (b)
d) Due to (c) above, termination is voidable at the option of the debtor

4)failure to comply with CPR

Not sure yet about this.

5)Notice of assignment

Not sure yet about this