Nationwide CCA Court Hearing v Jax

[jax007]

Re: Nationwide CCA Court Hearing v Jax

this might help a little hun, frisp missed his disclosure so the banks coming for him over it now.

Thanks Ames ... I met the Disclosure deadline ... it was Eversheds who did not!

I missed the Amended Defence deadline as I didn't receive the Order from the Court (and still haven't) ... the only copy of the Court Order I got was enclosed with a letter from Eversheds which in the event did not give me time to amend my Defence anyway!

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

Yes I know, but works both ways, ie thats an example of an application to force disclosure..which is what you were asking about.

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Aha ... should have read the legal dox first!!!

Yes I wonder whether I should make the application or allow them more time??? They obviously were very quick to slap me down for non-amendment of Defence, eh??

[jax007]

Re: Nationwide CCA Court Hearing v Jax

OK it's now 25 October and to date I have not received a Disclosure List from Eversheds and therefore I have not been able to request inspection of originals of documents.

I did point out to Eversheds that this section of the CO has not been complied with but have had no response.

Is it time to file a N244? If so, would I use the same wording as Frisp's N244 (but switching Defendant for Claimant) and I would I put in all the stuff on that N244 relating to disclosure and searches etc????

What would be the context of my Draft Order??

Be grateful for any help here.

ta
jaxx

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

How you going on this Jax? Did you get Eversheds disclosure list ?

[jax007]

Re: Nationwide CCA Court Hearing v Jax

Hello my sweet ......... NO! They never sent disclosure list but I've just received their WS in which they admit (very similar to ns7587's crap from Eversheds!) they don't have the original agreement......only the signed front page of application form and reconstituted 'agreement' which they say was printed on the back of the application form.

Hmmmm .... just thought there .... if they have the front page and the rest of it is printed on the back - why haven't they got the back page??? The mind boggles

If they haven't sent Disclosure List - what can they rely on in Court? The documents in MY Disclosure List??

Their WS is a bit detailed and I will post it up in next day or two but they are asking for case to be struck out. Also want around 3 and a half grand in costs ... however pt did say that they are liable for costs (I think I got that right) as they amended their defence.

My defence is the original one which is seriously not good enough but you may remember I never received the Court Order from the Court (and still haven't) saying I could amend it - only had the copy Eversheds sent with their amended POC.

xx

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

Ok we'll look at their WS then do yours which can beef up your defence etc if needed.

Re the back of the agreement. They don't hold the originals, they scan in the page with your sig and personal details to fiche / puter system, then archive or ditch the original. The reverse is the same on all agreements so they will just have a master copy which they will use to reconstruct everyones agreements.

signed front page of application form

that is the agreement. just incomplete as the t&cs are missing from the reverse thus they reconstruct them (to make it complete)

[jax007]

Re: Nationwide CCA Court Hearing v Jax

They don't hold the originals, they scan in the page with your sig and personal details to fiche / puter system, then archive or ditch the original.

DOH!!!

[jax007]

Re: Nationwide CCA Court Hearing v Jax

OK am posting up Eversheds WS ... NAH! this won't upload so have copied text here ..................

Note particularly Paras 7 and 8 and also 9, 10 and 12.

EVERSHEDS WS .........

I, Dav

id Michael Martin, of Eversheds LLP, 1 Callaghan Square, Cardiff, CF10 5BT will say
as follows:

1. I am a solicitor in the employ of Eversheds LLP, solicitors for the Claimant.

2. I am duly authorised by the Claimant to make this witness statement on its behalf
and I am able to state the facts set out from my instructions from the Claimant and
from our conduct of the matter. I believe that the facts stated in this witness
statement are true.

3. There is now placed before me a bundle of true copy documents marked as exhibit
"DM1". Page numbers referred to within this statement are to page numbers within
the bundle.

4.

This witness statement is made in support of the Claimant's application for a strike
out of the Defence pursuant to Rule 3.4 and/or summary judgment pursuant to Part
24 of the Civil Procedure Rules ("CPR").

5

. The Defendant relies on their Defence dated 3 September 2009 which I contend
discloses no reasonable grounds for defending the claim and the Defendant has no
real prospect of successfully defending the claim at trial.

The Claim

6. To ass

ist the court in understanding the claim before it, the claim is for recovery of
a debt owed to the Claimant by the Defendant of £5,763.63 ("the Debt"). This arises

Exhibit: "DM1"

from the Credit Card provided to the Defendant under a regulated consumer credit
agreement executed on 27 Octobe

r 2003 ("~he Agreement").

7

. At page 1 of the bundle is a copy of the signature page of the Agreement showing
the parties' agreement to enter into it.

8

. Unfortunately, this is all of the original version of the Agreement that the Claimant
has been able to locate. As such, the Claimant has prepared a complete
reconstituted copy of the Agreement, a copy of which can be found in the bundle at
pages 2 to 9 in the bundle.

9

. This reconstituted copy of the Defendant's original executed agreement has been ,---

has been prepared following a substantial exe

rcise for the reconstitution of the
Claimant's credit agreements accurately produced from the Claimant's documents
and records in accordance with the principles set out in the decision of His Honour
Judge Waksman QC in Carey-v-HSBC [2009] EWHC 3417 (QB).

10. In its original form the Agreement consisted of an application form for credit, with
the customers details and the signature box on one side and all of the key terms
(including all of the prescribed terms required by the Consumer Credit Act 1974
("the Act") and the Consumer Credit (Agreements) Regulations 1983 ("the
Regulations")) on the other. This was accompanied by a separate terms and
conditions booklet which set out the remainder of the terms.

11. On the Defendant returning the signed credit agreement the account was opened.

12. As can be seen from a glance of the copy of the signature page of the Agreement
and the reconstituted true copy of the Agreement, the Agreement was properly
executed in accordance with section 61(1)(a) of the Act and schedule 6 of the
Regulations.

13. On the reconstitution of the Agreement, the Claimant provided the Defendant with a copy of the signature page of the Agreement and the reconstituted true copy of the
Agreement.

14. As the Defendant was provided with the reconstituted true copy of the Agreement,
the Claimant gave the Defendant an opportunity to resolve the matter by paying the
arrears and so served on the Defendant a new default notice dated 25 June 2010.
The Defendant was given until 16 July 2010 to pay the arrears of £4,393.73 but
failed to do so. A copy of the default notice can be found at page 10 to 12 in the
bundle.

15

. The Claimant therefore made an application to amend the Particulars of Claim to
make reference to this new default notice. The Claimant was successful in that
application.

16. The Claimant therefore seeks recovery of the Debt.

The Defence

17. The Defendant

has defended the claim on the basis that:
a) the Particulars of Claim are vague and fail to disclose a cause of action;
b) the Particulars of Claim fail to disclose the date the credit agreement was
entered into, the date the Defendant defaulted on the Agreement and details of
any default notice served on the Defendant in accordance with Section 87 of the
Act; and
c) no documents supporting the Particulars of Claim have been provided to the
Defendant;

18. I submit that in accordance with Rule 3.4 CPRand Part 24 CPRthat the Defendant's
Defence should be struck out and/or judgment be given for the Claimant.

(a) & (b) The Particulars of Claim

19. It is not admitted that the Particulars of Claim are inadequate. However, the
Claimant has since amended the Particulars of Claim and argues that these are
sufficiently clea

r to set out the cause of action.

20. The Amended Particulars of Claim, which were first sent to the Defendant on 13
August 2010 and later served on the Defendant on 22 September 2010 state:
a) the date the credit agreement was entered into;
b) the date the default notice was served on the Defendant;
c) that the Defendant failed to comply with the default notice served.

21. The Amended Particulars of Claim are clear, establish the cause of action and
contain the information set out in paragraph 20.

(c) Documentation

22. On 28 June 2010 the Claimant served the following documentation upon the
Defendant:
a) a copy of the reconstituted version of the Agreement;
b) a copy of the front page of the original version of the Agreement; and
c) a default notice;

23. The Defendant has been provided with all the documentation that should be required to admit the claim.

The Claimant

's application for summary judgment and/or strike out of the
Defendant's Defence

=

24. In making this application for summary judgment and/or strike out of the Defence,
the Claimant avers that the Defence discloses no reasonable grounds for defending

th

e claim.

25

. For the reasons stated, the Claimant requests that:

25.1 summary judgment be entered against the Defendant on the basis that the
Defendant has no real prospect of defending the claim (CPR 24.2 (a)(ii)); and
there is no other compelling reason why the claim should be disposed of at trial
and/or in the alternative;

25.2 the Defendant's Defence be struck out pursuant to 3.4 (2) (a) of the CPR
because the defence discloses no reasonable grounds for defending the claim.

25.3 the Defendant be ordered to pay the Claimant's costs up to and in connection
with making this application.

26

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

S

igned: ..~~~J.r1.L.

Name

: David Michael Martin

Dat·e 7...\ oc..\.c~ "OlO. .

Attached also a copy of their Application to strike out and new Court Order dated 11 November vacating application hearing for 24 November and giving new date of February 2011.

I need to get my WS done and in in about 2 weeks.

Am out all day today but back later this evening to catch up on this.

Thanks for any help with this.

jaxx

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

So whats the defence again ? (I can't see one still hun sorry)

[middenmess]

Re: Nationwide CCA Court Hearing v Jax

6. To assist the court in understanding the claim before it, the claim is for recovery of
a debt owed to the Claimant by the Defendant of £5,763.63 ("the Debt").

14. As the Defendant was provided with the reconstituted true copy of the Agreement,
the Claimant gave the Defendant an opportunity to resolve the matter by paying the
arrears and so served on the Defendant a new default notice dated 25 June 2010.
The Defendant was given until 16 July 2010 to pay the arrears of £4,393.73 but
failed to do so. A copy of the default notice can be found at page 10 to 12 in the
bundle.

22. On 28 June 2010 the Claimant served the following documentation upon the
Defendant:
a) a copy of the reconstituted version of the Agreement;
b) a copy of the front page of the original version of the Agreement; and
c) a default notice;

Read more at: Nationwide CCA Court Hearing v Jax - Page 4 - Legal Beagles Consumer Forum

How do the bits in red tie up?

They could also have said that the Gettysburg address was on the back of the 'agreement' as well as the prescribed terms--it all seems so one sided [unintentional pun!] in their favour!

Was it an 'Agreement' or an 'Application Form' that you signed?

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

Application forms are agreements

[middenmess]

Re: Nationwide CCA Court Hearing v Jax

Application forms are agreements

Are one sided postal application forms with no prescribed terms etc. & with diddly squat on the reverse other than the address to post back to, agreements?

If application forms are agreements then if the applicant's signature is 'request' where is the signature of the creditor 'to accept?'


If application forms are agreements then what do you define an 'Executed Agreement' to be?

[MIKE770]

Re: Nationwide CCA Court Hearing v Jax

within 4 corners???? application form?

[Amethyst]

Re: Nationwide CCA Court Hearing v Jax

People keep going on about whether an application form is an agreement and then stating without looking at the agreement ''oh its an application form must be unenforceable'' which is just not the case at all. They, in the main, do have the prescribed terms on the reverse, they are an acceptance of an offer in essence, and the acceptance is executed once the checks are completed (credit ref \ ID etc) NW in this case have sent copies of the terms that were on the reverse. Once the creditor received the form, it executed it, sent a copy of the terms agreed with the card, to the debtor.

Four corners is a nonsence unless four means 8, or 12 or however many pages make up the one agreement document.

This is the agreement we are talking about - Legal Beagles Consumer Forum - it is not a fold and glue and return doc - it clearly states ''the nationwide card terms and conditions form part of this ''- there is reference to confirm you have read them - the reconstructed terms and conditions including the prescribed terms are on posts #4 and #5 of this thread - Legal Beagles Consumer Forum is the first page.

The agreement is executed by virtue of the creditors date stamp with signature and the required within 7 days copy of the executed agreement is sent, within 7 days of execution, by way of the card holder with the card.

I'm sure there are application forms that are precontractual and don't supply the prescribed terms but I don't believe this is one of them.