bump Is there anyone who canhelp me with my witness statement? Please

Hello FDPM Can you give us a rough idea when your SJ is to take place - It is scheduled for next week! have you got their WS - yes in which they have tried to say my defence is not good enough but I think they have shot themselves because they changed solicitors and no-one seems to have recognised they are now arguing my case for me! have you sent yours to the court - not yet - I still need help in compiling it right wordy wise. I won my SJ back in July- well done! and you need to trash their WS - they are doing a good job of it for me.. and produce enough evidence to convince the DJ that you can defend at trial - I still think I now have nothing to defend? Wishing you the best - Thank you

Hi Guys Okay what happened was that they (BOS) issued a summons wherein the POCs stated I had defaulted on AND I QUOTE "a credit agreement" and they went on to say I had defaulted and that they had issued a DN under the CCA! I then issued a CPR31 letter stating that I had no evidence of the DN and wanted full copies of everything including the original agreement. They eventually sent me everything EXCEPT for the OA and no Default Notice has ever been produced. I then put in my defence based around the fact I had never received DN. THEN they said it didn´t come under the CCA as it was an overdraft account and then they issued the statement thingy (good legal term there) that they have sent requesting summary judgement. MY argument is now going to be based aroundthe fact that they can´t take me to court for DEFAULTING on something to do with the CCA and then turn round and say my defence is useless because I have quoted the CCA! Surely if their original Summons was based around them saying my default was to do with the DN, they cannot now request my defence struck out - they surely cannot have it both ways... either I have defaulted because the CREDIT AGREEMENT (their words) is still unpaid and I ignored their (supposedly sent) DN OR there never was any DN because it is an overdraft in which case their original sumons is wrong! Now, if one of you could help me put that so that it reads in legal speak...

Thank you everyone for your responses - I called the Court today and because they have asked for my original defence to be 'stayed' I don't actually need to submit anything else - but I am going to prepare a statement as above and submit it to the judge when I get there. I think they have shot themselves in the foot though because the original POC has mentioned the CCA and now they are stating that the 'account' is not covered by the CCA - so I could argue that their original POC is rubbish and that I have no case to answer. They can't have it both ways! I'll let you all know the outcome - to be very honest, I am so busy with trying to help aged parents that this all seems quite silly - and at the end of the day if I have to pay them £5 for the rest of my life....then so be it cos that's all they'll get out of me. If anyone has time to help me with the staement, I would be grateful. Thanks

Thank you

Ha! I have just realised that the original POC states: that I failed or delayed to adhere to the terms of the Default Notice issued by the Claimant under the terms of the CCA 1974 and their whole application for the stay is arguing that their card doesn't fall under the CCA 1974! Surely then, one contradicts the other? Idiots!

Hi, Can anybody with more experience and knowledge run through this proposed defence of mine and tell me if it reads okay? Thank you! I, FDPM of Blah Street, will say as follows:- The contents of this statement are true to the best of my information, knowledge and belief and the facts stated herein are known to me personally unless otherwise stated. The Claimant, the HORRID BANK has stated that on DATE 98 by signature of an Account Application Form, I entered into an overdraft facility with OTHER HORRID Bank. I deny this as I never applied for an overdraft facility. I took out a loan with OTHER HORRID and they sent me this application form which at the time I believed was for the loan. I subsequently received my loan and a Preference Card which I was ALWAYS under the impression was to be used like a credit card in that I borrowed credit and made monthly payments. The card was shown on my credit report as a CREDIT CARD, the statements I received always showed a CREDIT LIMIT and I would argue that if it was truly an overdraft facility and a bank account that I should have been encouraged to pay my salary into the account and the statements would have shown an OVERDRAFT LIMIT. The Claimant has also argued that because this is a bank account that it is not regulated by the Consumer Credit Act 1974 and yet, in their original statements they mention the CCA 1974. This is confusing. The Defendant understands that it will form part of the Claimant’s Claim that this agreement is not a regulated agreement under the CCA 1974. The Defendant avers, however, that this is a regulated agreement and falls under the remit of that Act. To help clarify these matters, please see this extract from a Court case (Coutts v Sebastyen) which is part of the summing up by the Judge in relation to effect on overdrafts and the function of the CCA in such circumstances; “The Defendant provided an overdraft on the account; a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and b. That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements. Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with. Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material): "74. – (1) This part …. does not apply to – (b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, … (3) Subsection 1(b) … applies only where the OFT so determines, and such a determination – (a) may be made subject to such conditions as the OFT thinks fit … (3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so. THE DETERMINATION: The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full: "1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank. 2. This Determination is made subject to the following conditions:- (a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply; (b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded: - of the credit limit, if any, - of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended, - of the procedure for terminating the agreement; and this information shall be confirmed in writing. © that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable. 3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended." The Defendant, therefore, puts the Claimant to strict proof of; 1.1 The contractual agreement between both parties in relation to the Current Account, allowing the Defendant to request overdraft facilities and which terms and conditions were included as part of that agreement; 1.2. Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Defendant at the time of application for an overdraft by the Defendant; 1.3. Where no such agreement can be provided, copies of original documentation sent to the Defendant that complies with the Office of Fair Trading Determination, issued in relation to overdrafts on Current Accounts, under s.74 and s.133 of the Consumer Credit Act 1974; (that Determination being dated 1st February 1990) In its reply to the Defendant Part 31 request dated date the Claimant enclosed a copy of an alleged Default Notice said to be issued on date and issued in accordance with s.87(1) CCA 1974. The Defendant is prepared to swear on oath at trial that such Default Notice was not issued at the time the agreement was terminated by the Claimant and, accordingly, puts the Claimant to strict proof of said issue and receipt of that Notice. The Defendant therefore argues that the agreement has not been defaulted and terminated in accordance with part VII CCA 1974 and as such, the Claimant is not entitled to rely on that default or termination in Defaulting the Defendant.

thank you hb, I've just got to go to the hospital and then I'll be back to sort this lot out.

Wow hungrybear, Thank you - that is very useful. I have got to compile my defence today and get it out in the post by Recorded - in between taking father to opticians, bank and hospital! I hope to be back here by 3pm - Any help that anyone can give me will be really appreciated. I will include the extract hungry bear sent me, and I will also make a statement about the fact they have issued a 'credit limit' and not an overdraft limit - My bundle is not going to be very big though - I have printed out the CCA act and some other notes... We're in court next wednesday. Oooooh errr.

It has been issued by the Bank - BOS

I am due to attend court for: An order for the stay of proceedings to be lifted and the Defence to be struck out and Judgement entered for the Claimant for £x,xxx + fees in accordance with CPR24 This is because of a Preference Account Credit Card that they say is not a credit card but a bank overdraft - I have read through all the posts I can find on here to do with Preference Accounts but can't find any that have any real resolution. I believe that as this card was stated on my credit file to be a credit card, the statements sent out showed a 'credit limit' which they changed whenever they felt like it, and the fact that the card account was operated in every way like a credit card, that it should fall under the CCA - their argument is based upon them stating it is not a credit card and therefore the CCA does not apply. Can anybody help me compile my defence so that I can put across the argument in a 'legal' way - OR can anyone just help me with some advice. I have left this to the last minute because mother in law had another heart attack and have been ferrying Father in law back and forth to hospital and looking after him... I am becoming resigned to worst case scenario of admitting defeat and offering to pay but would really like to go into court with some sort of fight? Help... anyone?

Thanks guys for your suggestions/ideas - I read through the papers they have sent and firstly they have lied all the way through, secondly, I don't understand why, if it isn't a credit card it has a 'credit limit' NOT an 'overdraft limit' and third, why, if it isn't a credit card did they keep increasing the 'credit limit' - Also, if they claim it is a bank account how come they never asked me to pay my salary into it?? I think they have used this as a loophole to get out of their responsibilities - and if it looks like a duck and walks like a duck... I feel royally fed up with this but will do as pokerace suggests and write to them...sob

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HI I am being sued by BOS for a Preference Card that I was unable to continue paying. They are using the following statements: "There is no requirement for a valid Default Notice to be issued under Section 87 of the CCA and as such the Claimant is not required to prove that any such document existed" and "...the account in question is not regulated by the CCA and therefore there is no statutory requirement for the Claimant to provide copies of the Agreement under Sections 77 & 78 of the CCA" I am really confused because although the card had DEBIT CARD stamped on it, it was in every sense a credit card because I never had a bank account with them. I originally took out a loan and after I paid it off they sent me this card - which at the time I thought oh thank you and proceeded to use it like a credit card... over the years they kept increasing the limit... I paid it off twice and then they kept sending me out blank cheques so whenever I was struggling, it seemed like a good thing to use... Whatever the outcome at court, I guess I will just have to accept the inevitable CCJ and pay them back? Any suggestions, ideas or advice greatly appreciated? Thank you

Can' t help as not experience enough but sending lots of supportive thoughts...

Thanks for that 42 Man - I did do an N244 but the Court sent it back with my money saying that as my defence was in they didn't need it?? So I left it and just this week I received a huge bundle of all my past statements from the bank but still no DN or Agreement - They have now said that if I agree to pay them they will drop the case (ha ha ha ha) so I thought I would send my letter, give them 7 days and then apply for another N244... that way no one can say I am being unreasonable? I may need you help with the wording for the N244 so will come back to you in 7 days (if that is okay with you?) Thanks again... BTW might be tempting the devil but I haven't heard anything at all since my SD was set aside....

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Hi, Received a huge bundle of stuff containing all the past statements but still no copy of the Default Notice - they claim they sent one but cannot send me a copy as they don't keep copies... they have now asked me to agree to pay or else they will ask the court for a date.... I have drafted the following letter and would appreciate someone just confirming that I have the correct things included? Thankyou - Dear Horrid Bank Who Is Taking Me To Court Thank you for your letter dated xxxxxx, the contents of which have been noted. I wish to advise you that I have definitely not received a Default Notice from yourselves and would like to request that you send me an exact copy of the one that you claim was sent to me on 2nd September 2008. For you to say that you sent me one but that you do not have a copy is not really good enough as Section 87(1) of the CCA 1974 says: 87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-- (a) to terminate the agreement, or (b) to demand earlier payment of any sum.... Section 88 says that the DN must be in the prescribed form and the associated regulations say what that form is. Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action. I therefore put you to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119. Furthermore, the documents you sent me in the bundle, received this week, do not contain copies of any ‘original agreement’ but merely an ‘application form’ so I would request that you send me a copy of the original ‘Agreement’ as requested in my letter dated xxxxx which was a request made under CPR 31.14. I look forward to receiving the requested documents within the next seven days after which I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance. Yours etc...

Hi 42 Man This is the POCs - The Claimants claim is for [just over £4k] presently due pursuant to a credit agreement entered into by the parties, full particulars of which have been supplied hitherto. By an agreement dated 03/02/1999 the Defendant has an account number XXXXXXXXX with the claimant. The defendant has failed or delayed to adhere to the terms of the Default Notice issued by the Claimant under the terms of the Consumer Credit Act 1974. The balance due as at XX/XX/2009 on said account is £XXXX

Wow! Thank you so much 42 Man I will print this off and have a good read but on first scan looks exactly like the sort of ammo I need. I'll also dig out the CCC and post up the POCs again. Thanks

Please can someone on here give me some advice as to what I need to do next? The County Court Claim defence 28 days is up today and I really have no idea what is supposed to be happening next. In the defence I submitted I stated about the lack of a DN and the bank have sent me, in response to my CPR letter, a copy of their Template! Am I right in supposing that this is ridiculous as surely, I could 'say' they sent me a letter telling me to forget it but I lost it... surely they need to 'prove' they have sent me a DN? I would be grateful for someone's advice on this? Thank you

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Can anyone give me some advice please? My 28 days runs out on Monday and I presume the court will contact me? IN the meantime should I write back to the bank and point out that what they have sent me is NOT a Credit Agreement and also that although they claim they sent me a Default Notice, sending me their template doesn't actually prove anything? Thanks