**WON** Claim Received Incorrect Name

[Proceed]

Re: Claim Received Incorrect Name

Agreement attached as they supplied it and Complete witness statement

- - - Updated - - -

You saw the default sums they refer to in para 6.

[Amethyst]

Re: Claim Received Incorrect Name

Thank you. I've changed your agreement PDF as PDF redaction is a bit crappy and when I first opened it could see all your details, so have done a screenshot of it as redacted and readded it for you xx

[Amethyst]

Re: Claim Received Incorrect Name

So very very very rough idea for your witness statement to get your arguments in....


WITNESS STATEMENT


1: I am X of X etc believe true....

2: I am providing this witness statement in response to the Witness Statement of Hina Khan of Bryan carter Solicitors dated xxxxxxxxxxx

3. At paragraph 13 Ms Khan states '' quote bit about agreement ".

4. The agreement attached at exhibit HK1 is not complete and therefore fails to comply with s.77(1) of the consumer credit act 1974 ( "CCA 1974"). The Terms and Conditions attached are paragraph number 1.0 to 3.x . At paragraph x these terms state " xxxxxxxxxxxxxxxx see para 4/5/6/7 etc". These terms have not been provided. The agreement is incomplete.

5. Therefore the Claimant is in default of my formal request under s./77 CCA 1974 and is unable to enforce the agreement as per s.77(4) etc


6. At paragraph X - BMW v Hart - last payment date etc

7. At paragraph X - Default notice v notice of default sums etc

[Proceed]

Re: Claim Received Incorrect Name

Okay Here's what I have to go with...

1: I am XXX of XXX make the following statement believing it to be true.

2: I am providing this witness statement in response to the Witness Statement of Hina Khan of Bryan Carter Solicitors dated XXXX

3. At paragraph 13, Ms Khan states ''XXXX exact copy of para 13. XXXX. This rectifies any earlier default and the Claimant consider it has complied with its duties pursuant to the CCA1974".

4. The agreement attached at exhibit HK1 is not complete and therefore fails to comply with s.77(1) of the consumer credit act 1974 ("CCA 1974"). The Terms and Conditions attached are paragraph numbers 1.0 to 3.b only.

In so much as: The first item reads “These are paragraphs 1, 2 & 3 of your terms and conditions which contain the financial and related details. The rest of your terms and conditions (paragraphs 4 to 19) can be found in the full copy (which we must give to you under the Consumer Credit Act 1974) which is enclosed." The terms (4 to 19) have not been provided. The agreement is incomplete.

5. Therefore the Claimant is in default of my formal request under s./77 CCA 1974 and is unable to enforce the agreement as per s.77(4) of CCA 1974.

6. At paragraph 6, Ms Khan states “The defendant was sent Notice of Default sum pursuant to Section 87(1) of the Consumer credit act 1974.” and goes on to direct the court to page 58 of exhibited ‘HK2’ evidencing a notice included in statement dated 04/08/09. This is not a Default Notice as prescribed under s88(1) of CCA 1974

88 Contents and effect of default notice.
(1)The default notice must be in the prescribed form and specify—
(a)the nature of the alleged breach;
(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;
(c)if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

The Claimant has not provided any default notice copy.

7. Therefore the Claimant is in default of my formal request under s./77 CCA 1974 and is unable to enforce the agreement as per s.77(4) of CCA 1974. Is this the right section or should it be s.88(1)

8. At paragraph 10, Ms Khan states - “The Claimants position is that the limitation period runs from the date the Original Creditor became entitled to demand payment, in this instance the account fell into default on 31 August 2009. Furthermore the Court is directed to the notice of Default sum on page 58, included in the statement 04 August 2009. The Claim was issued on or around 02 July 2015.”

The Claimant further seeks to rely on the case of BMW financial Services (GB) Ltd v Hart [2012] EWCA Civ 1959.
BMW v Hart - is argued that cause of action doesn't start until the creditor choses (basically) however it can be challenged on the point that it referred only to a loan secured upon goods. However in this instance the Claimant is citing page 58 dated 4th August to suit their need.

If the Court sees fit to accept the document on page 58 as a Default Notice then I refer the Court to the identical earlier Notice of Default sum on page 34 dated 03 February 2009. The Claim was issued on 02 July 2015 and therefore by default; the Claim should be barred.


If this is okay, do I post it, take it with me to court or both?

[Amethyst]

Re: Claim Received Incorrect Name

Just doing a couple of amendments, looking good though

[Amethyst]

Re: Claim Received Incorrect Name

Need someone else to have a look at the stat barred and the default notice failings as I just don't know enough on that side of things. [MENTION=551]pt2537[/MENTION] - [MENTION=5354]mystery1[/MENTION] @ nemesit45 ? maybe.... para 6 onwards



1: I am XXX of XXX make the following statement believing it to be true.

2: I am providing this witness statement in response to the Witness Statement of Hina Khan of Bryan Carter Solicitors dated XXXX

3. At paragraph 13, Ms Khan states ''XXXX exact copy of para 13. XXXX. This rectifies any earlier default and the Claimant consider it has complied with its duties pursuant to the CCA1974".

4. The agreement attached at exhibit HK1 is not complete and therefore fails to comply with s.77(1) of the consumer credit act 1974 ("CCA 1974"). The Terms and Conditions attached are paragraph numbers 1.0 to 3.b only.

In so much as: The first item reads “These are paragraphs 1, 2 & 3 of your terms and conditions which contain the financial and related details. The rest of your terms and conditions (paragraphs 4 to 19) can be found in the full copy (which we must give to you under the Consumer Credit Act 1974) which is enclosed." The terms (4 to 19) have not been provided. The agreement is incomplete. I do not recall receiving any additional terms at the time the account was originally opened.

5. Therefore the Claimant is in default of my formal request under s.77(1) CCA 1974 and is unable to enforce the agreement as per s.77(4) of CCA 1974.

6. At paragraph 6, Ms Khan states “The defendant was sent Notice of Default Sums pursuant to Section 87(1) of the Consumer credit act 1974.” and goes on to direct the court to page 58 of exhibited ‘HK2’ evidencing a notice included in statement dated 04/08/09. This is not a Default Notice as prescribed under s87 or s88 of CCA 1974.

7. The Claimant has not provided a copy of a default notice, it appears to be a notice given under s/86E of the CCA 1974.

8. At paragraph 10, Ms Khan states - “The Claimants position is that the limitation period runs from the date the Original Creditor became entitled to demand payment, in this instance the account fell into default on 31 August 2009. Furthermore the Court is directed to the notice of Default sum on page 58, included in the statement 04 August 2009. The Claim was issued on or around 02 July 2015.”

9. The Claimant has not shown that the account was defaulted, nor that a default notice was sent.

10. It is my contention that any debt is time barred by statute pursuant to s.5 of the Limitation Act 1980. There has been no acknowledgement of, nor payment towards, the debt since xxxxxxxxxx 2009. The Claimant has not shown otherwise. The debt has not appeared on my credit file with the Credit Reference agencies since around xxxxxxxx 201X.

[nemesis45]

Re: Claim Received Incorrect Name

I think that the stat barred and DN paras are fine.
I do wonder if this Ms Khan is thinking of the BMW - v - Hart decision which was in fact in regard
to an HP account where as this is a simple contractual matter as Mr Carter likes to state on some many
claim when refusing to comply with CPR 31.14.

In my opinion the date is one referred to in many agreements " in the event of Any missed payment " etc.,

For safety the date of the last payment + 1 month. then no further payment or unequivocal written acknowledgment.

nem

- - - Updated - - -

I think that the stat barred and DN paras are fine.
I do wonder if this Ms Khan is thinking of the BMW - v - Hart decision which was in fact in regard
to an HP account where as this is a simple contractual matter as Mr Carter likes to state on some many
claim when refusing to comply with CPR 31.14.

In my opinion the date is one referred to in many agreements " in the event of Any missed payment " etc.,

For safety the date of the last payment + 1 month. then no further payment or unequivocal written acknowledgment.

nem

[Proceed]

Re: Claim Received Incorrect Name

Thanks Amethyst & Nem,

10. It is my contention that any debt is time barred by statute pursuant to s.5 of the Limitation Act 1980. There has been no acknowledgement of, nor payment towards, the debt since xxxxxxxxxx 2009. The Claimant has not shown otherwise. The debt has not appeared on my credit file with the Credit Reference agencies since around xxxxxxxx 201X.

With regard to the last sentence, I actually don't know when it went off my file ...

Having just checked earlier posts it appears to have disappeared on or around July 12th and based on their slow removal of 6yr debts it must have been defaulted since well before then but that doesn't really prove anything!

So perhaps best to leave this last sentence out?

There is no mention of the notice of assignment which was sent to the wrong address, is this relavent?

And lastly do I send this prior to the hearing or take it with me?

[Proceed]

Re: Claim Received Incorrect Name

There is also this,

5. Therefore the Claimant is in default of my formal request under s.77(1) CCA 1974 and is unable to enforce the agreement as per s.77(4) of CCA 1974.

As this is a Credit Card debt would it be proper to change it to

"5. Therefore the Claimant is in default of my formal request under s.77-79 of CCA 1974 and is unable to enforce the agreement as per s.78(6) of CCA 1974."

Any light shed on my darkness appreciated.

[Proceed]

Re: Claim Received Incorrect Name

Hey guys, off to court in a couple of days here's what I have as a response to their witness statement, comments appreciated.


1: I am XXXX of XXXX make the following statement believing it to be true.

2: I am providing this witness statement in response to the Witness Statement of Hina Khan of Bryan Carter Solicitors dated 11/12/15

3. Agreement: At paragraph 13, Ms Khan states ''The Claimant now produces at Exhibit ‘HK1’ a copy of the agreement together with terms and conditions and at exhibit ‘HK2’ copy statements of the account. This rectifies any earlier default and the Claimant consider it has complied with its duties pursuant to the CCA1974".

4. The agreement attached at exhibit ‘HK1’ is not complete and therefore fails to comply with s.78(1) of the consumer credit act 1974 ("CCA 1974"). The Terms and Conditions attached are paragraph numbers 1.0 to 3.b only.

In so much as: The first item reads “These are paragraphs 1, 2 & 3 of your terms and conditions which contain the financial and related details. The rest of your terms and conditions (paragraphs 4 to 19) can be found in the full copy (which we must give to you under the Consumer Credit Act 1974) which is enclosed." The terms (4 to 19) have not been provided. The agreement is incomplete. I do not recall receiving any additional terms at the time the account was originally opened.

5. Therefore the Claimant is in default of my formal request under s.77-79 of CCA 1974 and is unable to enforce the agreement as per s.78(6) of CCA 1974.
**-------------------------------------

6. Default Notice: At paragraph 6, Ms Khan states “The defendant was sent Notice of Default sum pursuant to Section 87(1) of the Consumer credit act 1974.” and goes on to direct the court to page 58 of exhibited ‘HK2’ evidencing a notice included in statement dated 04/08/09. This is not a Default Notice as prescribed under s.87 or s.88 of CCA 1974.

7. The Claimant has not provided a copy of any default notice; it appears to be a notice given under s.86E of the CCA 1974. Therefore, the Claimant is in default of my formal request under s.77-79 of CCA 1974 and is unable to enforce the agreement as per s.88(1) of CCA 1974.

8. At paragraph 10, Ms Khan states - “The Claimants position is that the limitation period runs from the date the Original Creditor became entitled to demand payment, in this instance the account fell into default on 31 August 2009. Furthermore, the Court is directed to the notice of Default sum on page 58, included in the statement 04 August 2009. The Claim was issued on or around 02 July 2015.”
The Claimant further seeks to rely on the case of BMW financial Services (GB) Ltd v Hart [2012] EWCA Civ 1959.
BMW v Hart - was in fact an HP account secured upon goods. Where this is a simple contractual matter as the Claimants lawyer, Mr Carter stated when refusing to comply with my CPR 31.14 request.

9. Again the claimant has not shown that the account was defaulted nor that a default notice was sent.
-------------------------------------------

10. The Claim was issued 6yrs, 6mths &1 day after the last payment was made. It is my contention that any debt is time barred by statute pursuant to s.5 of the Limitation Act 1980. There has been no acknowledgement of, nor payment towards, the debt since 01 January 2009. The Claimant has not shown otherwise. The debt has not appeared on my credit file with the Credit Reference agencies since around June 2015. `

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

[nemesis45]

Re: Claim Received Incorrect Name

Excellent!!
Are you happy with it!
I would be!

nem

[Proceed]

Re: Claim Received Incorrect Name

Thanks Nem,

I'll let you know how things pan out on Friday, last time I was in court I was on the other side of the table not so nerve wracking on that side.

[Proceed]

Re: Claim Received Incorrect Name

I think I may have dented the roof of my car doing an impression of Del Boy and Rodney after I got back to the privacy of the car park.

I'm still grinning from ear to ear as I type, and I can stil hear it in my head.....

"Claim Fails"

My deepest thanks to [MENTION=55034]nemesis45[/MENTION], [MENTION=6]Amethyst[/MENTION] and all other contributors to this thread. If I had listened to the advice of my local free legal clinic I would be considerably less wealthy today!

You Guys Rock! :lb:

It was a long hearing and the judge questioned me as to every detail of my witness statement (posted above) particularly, asking me to explain to him why their default notice failed. To him (initially) it seemed to suffice, until I pointed out that if that did suffice then so would the same notice from 6 months earlier thus making the claim SB'd anyway. He decided to check all my references to the act.

He asked me to wait outside while he checked the various acts and almost an hour later (having carried the acts books to another room and back again) called me back in, apologised for keeping me waiting and basically said their failure on the Default Notice was enough, siting that if he were to accept the claimants notice he would also have to accept the earlier instances of "notice of default sums". He also agreed that the Notice of Default sums does properly come under s.86E of CCA as you correctly pointed out [MENTION=6]Amethyst[/MENTION].

I've calmed down a bit now I've got that off my chest.

While this has been going on since July last year all my other debts have become SB'd and dropped of my file and my credit rating is back in the big green numbers.

Christians 1
Lions 0
:tinysmile_twink_t2:

[nemesis45]

Re: Claim Received Incorrect Name

Brilliant, Well Done Proceed!!
Proceed to celebration !!

nem Happy New Year!!

[Kati]

Re: **WON** Claim Received Incorrect Name

Well done [MENTION=69093]Proceed[/MENTION] xx