disclosure on closed bank account & varied T&Cs

[Gorang]

Re: disclosure on closed bank account & varied T&Cs

(don't think the defence being submitted or not is relevant unless submitted together with counter claim

They were submitted together and the WHOLE counter is the actual defence , the defence is from 1 to 35 and then the counter starts at no 36 and this is the whole counter claim

COUNTERCLAIM
36, The defendant repeats paragraphs 3 to 35 of this Defence and Counterclaim.

37, In respect of the First Agreement the sum of £4.8k remains outstanding pursuant to the terms of the first agreement and is payable to the defendant by the claimant. The claimant is in breach of the first agreement by having not made payment of the same. Such sum is due and payable immediately to the defendant in accordance with the default notice and the terms of the first agreement. The first agreement is exhibited to this Defence and Counterclaim marked “Exhibit A” and the Defendant/Part 20 Claimant relies on the terms of the second agreement.

38, In respect of the second agreement the sum of £3.5k remains outstanding pursuant to the terms of the Second Agreement and is payable to the defendant by the Claimant. The Claimant is in breach of the Second Agreement by having not made payment of the same. Such sum is due and payable immediately to the defendant in accordance with the Default Notice and the terms of the second agreement. The Second Agreement is exhibited to this Defence and Counterclaim marked “Exhibit C” and the Defendant/Part 20 Claimant relies on the terms of the Second Agreement.

39, And the Defendant claims –
Judgement in the sum of £xxxxxxxx
Costs

In fact I will send you this too as last night I rewrote on word the whole defence and counter claim for easy reading and referencing

So yes it would depend on the timing of when they submitted the counter claim and when the original claim was withdrawn and whether a notice of discontinaunce was sent.

This is what I have everything crossed for that the discontinuance was BEFORE the counter was submitted

[Boxerdog8]

Re: disclosure on closed bank account & varied T&Cs


Hello, thank you again for all your time and inpute.

I had a hearing regarding the Claim already being discontinued with the Judge. He felt that it was an error with the Court, and the Defence and Counter Claim should stand, it was ruled by a Deputy Judge first and then by the current Judge at the Hearing.
I filed the discontinuance on the 14th July 2010.
The Defence and Counter Claim was received by the Court on the 15th July 2010. (apparently it was sent by a different postal system the Court uses.)
I tried via a hearing which cost me £500.00 to state the Claim had already been discontinued. The Judge (who will be the same Judge at any hearing and Trial) would not have it.
The only issue is on the 20th July a District Judge did not order me to pay costs, as the Defence had not been filed on time?
Two Judges have ruled on this.
I want to double check the date of the Court stamp on the Defence and CounterClaim.
Is there any CPR rules to allowing a late Defence or is it at the Judges direction?

[SpringerSpaniel]

Re: disclosure on closed bank account & varied T&Cs

Any of the CPR rules can be varied by discretion if it is in accordance with the Overriding Objective to do so.

[Gorang]

Re: disclosure on closed bank account & varied T&Cs

I filed the discontinuance on the 14th July 2010.
The Defence and Counter Claim was received by the Court on the 15th July 2010. (apparently it was sent by a different postal system the Court uses.)

Also need to know what date you submitted the original POC to see if they were late in submitting the defence under normal proceedures as this will also hold more clout

Personally I think there IS mileage with this, as it should make NO difference what postage system was used

the facts will remain you withdraw one day then they submit their defence the next day, their defence and counter claim SHOULD be thrown out as there is NO case to answer

Even after 2 judges have allowed them to carry on, with the correct argument this can STILL be thrown out

it is NOT one rule for them and one rule for everyone else, altho they seem to think it is

Why I suspect the judge has allowed them to continue so far is
(Sorry but I have got to be blunt here)

They have gave the judge a load of flannel of why their counter claim should stand, but because the correct LAW argument (proof) has NOT been placed in front of the judge by you, YET (but it will be now if the dates pan out in your side) to get the counter claim thrown out, the judges HAVE to accept it and allow it

Look at this the same way as you look at the DN's

you know they are a load of manifactured rubbish
The judge can see they are a load of manifactured rubbish
BUT until YOU put the proof/facts in front of the judge and PROVE they are manifactured rubbish, then the judge has to go along it, until you prove otherwise

The judges are have to go along with what is put in front of him (whether it's true or NOT) right up until the point the other side PROVES it's untrue

It is ONLY the LAW that the judge can make judgements on, NOT what they think is true or untrue, if that makes sense


Its more important than ever now for you to post up what dates the court have put on

your POC
your discontinuance
their defence and counter

Also

Is there any CPR rules to allowing a late Defence or is it at the Judges direction?

Yes there are, BUT, I am 99.99999% sure they will NOT apply, because you WITHDREW the claim BEFORE they submitted the defence and counter claim

[Boxerdog8]

Re: disclosure on closed bank account & varied T&Cs

Hi, thank you springer.......I thought as much I would think it would be very difficult to overrule this decision as MUCH as I would love to! and to return to sleeping through the night.

I have spoken to the Court and they stated the Defence and CounterClaim was received on the 15th July 2010. The payment was also received.
Gorang, the POC was issued on the 1st June 2010 they were late with their Defence but the Judge knew this at the hearing. Also it will be the same Judge ruling at the Trial.
Thank you again for the inpute and support. Any news on the appication forms and T&C.
Boxer

[Gorang]

Re: disclosure on closed bank account & varied T&Cs

Boxer

Right to apply to have notice of discontinuance set aside
38.4

(1) Where the claimant discontinues under rule 38.2(1) the defendant may apply to have the notice of discontinuance set aside(GL).

(2) The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.

DID they apply for the discontinuance to be set aside

If they did NOT then their defence and counterclaim should be THROWN OUT under 38.4 as the Defendant did NOT make this application

Yes it will be the same judge, BUT he CAN'T argue against CPR RULES that govern HIM

YES we make up a strong defence for you and we allso make 2 applications
first one for the case to be thrown out under 38.4
second one an application for a N268 for the diclosure of where their evidence come from and as TB2 said earlier, they HAVE to prove the payments were made

The Agreement does NOT comply with the CCA 1974 section 78
and they have NOT complied with CCA 1974 section 63
------------------------------- merged -------------------------------
I forgot to add


Sorry I was unexpectdly away for most of the weekend,

So I will write your new defence tomorrow for you, then start to have a look at getting the applications put together
------------------------------- merged -------------------------------
Also in addition to 38.4 there is also 38.5

When discontinuance takes effect where permission of the court is not needed
38.5

(1) Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on him under rule 38.3(1).

(2) Subject to rule 38.4, the proceedings are brought to an end as against him on that date.

(3) However, this does not affect proceedings to deal with any question of costs.

[Gorang]

Re: disclosure on closed bank account & varied T&Cs

Boxer

Can you also see if you can find out the exact date they acknowleged the claim please

EDIT

As I suspect they will have been late to acknowleged the claim also, which will show further abuse of the rules and process, and a complete disregard to the proceedures

[Gorang]

Re: disclosure on closed bank account & varied T&Cs

Another part which WILL apply is the fact that they were 14 days late with their defence and they did NOT make any agreement with you under 15.5

Agreement extending the period for filing a defence
15.5

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

So within 15 days they broke and abused CPR 15.5. 38.4 and 38.5

Personally I can NOT see ANY judge agreeing to let them carry on with this counter claim ONCE these FACTS are pointed OUT to them

And this is WITHOUT the acknowlegement being late
If the acknowlegement was late then that is FURTHER CPR's that they broke

Even if they won this case tomorrow then you could appeal the judgment on ONLY this points I have above, as if I am NOT mistaken these counts as POINTS of LAW, therefor giving you grounds for appeal

[Gorang]

Re: disclosure on closed bank account & varied T&Cs

Boxer

Can you confirm if you ever sent either RBS or Tesco or the wieghtmans a CCA request asking for copies of the agreements

If you did then can you post up the dates on that requests please

[Boxerdog8]

Re: disclosure on closed bank account & varied T&Cs

Hi, I will go through the paperwork and let you know. There is one Court Order listing the discontinuence and at the same time allow the Defence and CounterClaim to stand. I asked for a hearing to strike out their Defence and CounterClaim but the Judge allowed it to stand. Any luck with the application forms and T&C's I would like to file an amended Defence and submit the N268 form. If there is anything else you need let me know. Many thanks, Boxerdog...........

[Gorang]

Re: disclosure on closed bank account & varied T&Cs

Hi Boxer

Hi, I will go through the paperwork and let you know. Thanks as I need this info for the defence asap if you can

Do you remember sending a request with a £1 postal order or cheque to any of them at all by any chance? ?
Or a SAR with a £10 postal order or cheque? ? ?


There is one Court Order listing the discontinuence and at the same time allow the Defence and CounterClaim to stand. I asked for a hearing to strike out their Defence and CounterClaim but the Judge allowed it to stand. Can you send me this please


Any luck with the application forms and T&C's I would like to file an amended Defence and submit the N268 form. Half way through the defence but need the info above

If there is anything else you need let me know. All the written court orders you have had from the court since the counterclaim was submitted.
How many of them are there in total

[Boxerdog8]

Re: disclosure on closed bank account & varied T&Cs

Hi, sorry Gorang my internet went down yesterday. I have sent you directly the Court orders. I have sent a SAR and £1.00 request. I will forward the letters, nothing new came back same documents.
I have also sent letters from the soliciotors, reading them back they really do play on words in their letters regarding court proceedures.
If I had missed anything kindly let me know. Many, many, many thanks, Boxerdog.

[Gorang]

Re: disclosure on closed bank account & varied T&Cs

I have sent a SAR and £1.00 request

What was the date of this request ie what date did you send it?

[Boxerdog8]

Re: disclosure on closed bank account & varied T&Cs

Hi Gorang, I had a conversation with a barrisitor today, (no charge!) I have sent you a direct e-mail. I need to go through the Default Notice and Notice of Assignment to see if there are any errors. The rest he thinks will hold up due to allowing recontructed documents. (hence the hearing with disclosure they are worried I have the orginial!) the Defence needs to be done urgently, (I do not think I can afford him to go to Trial and he requires money up front) The Statute Barred Defence will not hold as he beleives it is from the Date of Termination then six years and I have heard this before. There could be an issue under CPR 26.8 (3) to try and get the Claim to small claim as each Debt is under £5.000 and £3.000.00 and if the original lenders where to issues a Claim each would be separate, so why should a DCA be allowed this. He feels the Judge has an overiding objected on the Trial re discontinuence, the DCA had a right to reclaim the Debt, although another opinion would be good?
A large battle ahead.......................thank you again for your time.

[Gorang]

Re: disclosure on closed bank account & varied T&Cs

Hi boxer

Do you want to go with the barrister?
I ask as you seem unsure?


If you don't want to go with the barrister and you still want us to help you put this together so you do not need to use the barrister, then we NEED the info

I really am trying to put this together for you, but I need the INFO to work with in order to get it done.

Start with the timeline I emailed you, fill in the blanks for me, email the missing docs for me

BUT

SLOW DOWN and ONLY do ONE thing at a time, so we can make 100000% sure they we have everything RIGHT




And to give you an insight to the direction we will go if you want to put this together here is

Reconstructed documents do NOT count as evidence

ESPECIALLY with the agreements, as per sections 61 and 127 of the CCA it HAS to be the ORIGINAL document, just like teaboy said in post 42

Only a true copy of the original signed agreement or signed origianl terms that include the perscribed terms can be used in court (section 61(1)(a) and 127(3) of the Act), a reconstructed agreement is not enforceable in court.

And with out an agreement that is enforceable then they do NOT have a case as it ca NOT be enforced by ANY court.

same applies to the Default notice, they MUST supply the ORIGINAL not a reconstructed one, for the simple reason they can put ANYTHING they like on it, which means it is not a VALID default notice.

Without either one, a VALID agreement or a valid DN, then the debt can NOT be enforced by ANY court, regardless of the limitations.


In the attachment below is a copy of a standard embarressed defence that I made up for people that get a summons from a DCA that has NO evidence to back up their POC, which will be along the lines of what we will base your defence on (which I have half of it done already), so this will give you a good idea of what the laws say about defaults and agreements, as this is the same situation you are in, ie the other side has NO eveidence to back up what they say


Have a read and see if you understand most of it and let us know what you think