zhanzhibar vs Amex/AIC/Newman/ Brachers Solicitors

[underdog13]

Some of us like your posts about Professors, MMM;)

[millymollymoo]

:lol:!

[zhanzhibar]

Hi all,

 

Update on what's been happening. Send via NDD the amended defense on the 7th April. Was expecting a reply from Brachers 14 days after the 8th as agreed at the hearing on the 25th March 09 but nothing happend. Then received this from the court on the 21st April 09

 

It clearly said "file and serve" by the 29th April. I take it meant that I as well as the court should be receiving a further witness statement ? I haven't received anything & rang the court yesterday & they didn't received anything either... so question is.. what shall I do now? Can I ask for the case to be struck off due to non-compliance? Is there a form to fill to ask for this?

 

Zhan

[banker_rhymes_with]

Hello Z!

 

Can I ask for the case to be struck off due to non-compliance? Is there a form to fill to ask for this?

 

I think you can use N244, but there will be a fee of around £70, but it could raise the game and bring things to a head.

 

It will also stop them from trying any games themselves.

 

Cheers,

BRW

[Docman]

I wouldn't be surprised to find Brachs rang the court office around 20 April with " The DJ said 21 days, didn't he?" and the court office, not having drawn the Order duly obliged, probably arguing about delays because of Easter etc.

 

I think a N244 applicaion for strike out now would be a waste of money. You wouldn't get a date before the end of May anyway. I suggest attending on 27 May prepared to defend. If they only respond with a witness statement the day before, ask for an adjounment to consider their witness statement. If they do not send in a statement, then ask for strike out at the hearing.

[Cunning Plan]

Hi Z

 

I agree with Docman. In my case with AMEX / Brachers they didn't hit some of the timescales which at the hearing, when they didn't turn up either, lead to a lot of 'tutting' from the judge.

You play by the court rules, get your paperwork to the court on time and in line with what has been requested. Let AMEX dig themselves a deeper hole.

 

CP

[Alphageek]

They were pretty much the same with me as well.

 

Keep to the deadlines and don't tell Brachers anything.

[bazaar]

Yes keep your cards close to your chest now,

They MUST deal with specifically what the Judge has ordered them to do, which is the Enforcability.

If they dont do anything or they send something in which doesnt do this, then they will look pretty stupid in court trying to explain it.

[zhanzhibar]

Hi All,

Surprise..surprise...today I got the long awaited letter from Bracher..2 days late & they knew they were late too because they aplogise!!

 

Anyway, here is the content of their reply to my amended defense..

 

 

 

 

 

 

 

 

 

 

Once you finished reading, let me know if you've come to the same conclusion as me that they didn't actually comply to the judge specific order (point 3 of the order) to deal with my allegation that the agreement is unenforceable. If I'm wrong, let me know please as I need to have all the ammumnition for the gearing on the 27th may. Question is what do I do now? I am nervous...am thinking perhaps better find a lawyer I can afford who can talk the "talk" for the 27th May considering the amount inquestion. Anybody know a good lawyer who is not expensive?

Edited May 1, 2009 by zhanzhibar
Edit reference

[the_shadow]

Wow what a load of hot air...

 

a) You are correct, they have not proved or provided anymore details re: prescribed terms, dont think the judge will just accept their statement, as they've not introduced any new evidence to show what the screens with prescribed terms .

 

b) Default Notice, what a load of piffle, it doesnt matter what date they terminate, the default notice means they are entitled to put the default on if you dont rememdy the breach.. When was the default put on your credit file? is it the day after the default notice went unanswered? As to putting it into the post system on a sunday allowable under service, You can blow that one out of the water with the CPR service details posted a lot earlier in this post.

 

In short I find Amex's remarks weak and a bit desperate

 

S.

[robcag]

Wow what a load of hot air...

 

a) You are correct, they have not proved or provided anymore details re: prescribed terms, dont think the judge will just accept their statement, as they've not introduced any new evidence to show what the screens with prescribed terms .

 

b) Default Notice, what a load of piffle, it doesnt matter what date they terminate, the default notice means they are entitled to put the default on if you dont rememdy the breach.. When was the default put on your credit file? is it the day after the default notice went unanswered? As to putting it into the post system on a sunday allowable under service, You can blow that one out of the water with the CPR service details posted a lot earlier in this post. Agreed. See Rule 6.2 for definitions of days which count as 'business days' and those that don't.

 

In short I find Amex's remarks weak and a bit desperate

 

S.

 

Hi Zhan

 

I agree with the_shadow that they are talking a load of bowlarks.

 

Was it definitely established on here that the DN was defective due to time allowed to remedy being insufficient?

 

Sorry, but I can't remember as I'm subscribed to too many threads and can't keep track of what's going on in all of them!

Would you mind pointing me to which post# in this thread you posted your DN up?

 

Cheers

Rob

[zhanzhibar]

Hi robcag,

It's in several posts in here in #131 & #199 but I thought I put it here to make it easier.

 

Hiya again

 

 

 

All the exhibit that they provide in their bundle of doc marked SLG1 I have seen & received except for number (iv) the default notice. This is the first time I see a copy of this since i asked for it when I file my defense back in june 2008.

 

Here is their exhibit SLG1 (iv) copy of default notice :

 

 

Having seen this now, I had a look again at the original letter they sent that I found

 

 

[nicklea]

Regardless of the actual date of the DN they're buggered anyway.

 

The actual regulations say not less than 14 days from the date of SERVICE not the date on the notice. Leaving aside the fact that it should be an actual date (although this is arguable either way) they should give you 14 days from the date of SERVICE not the date of the notice. If they had said 14 days from RECEIPT of this letter they would have been correct, but the fact that they said 14 days from the date of this letter means that it is not valid.

[robcag]

I agree with nicklea, they're snookered!

 

Even though they're trying to wriggle out of the dates on the first DN which you have the original of, the alleged copy is also defective.

 

So technically it should be game set and match to you, zhan!

 

Cheers

Rob

[zhanzhibar]

Hi

 

Having re-read their reply, I've got questions of anybody could answer it please:

 

1) In their letter cover letter, they say that an application has been file with the court to amend their Fully detailed POC. Can they do this? Considering that we are meeting on the 27th May & now suddenly they want to change their detailed POC? Will I not be allowed to defend against this amended detailed POC? All my defense are based on what they put in their detailed POC as you can see. I think this is taking a mockery of the justice legal system. Surely I have a right to say something on this application? From where I am standing, I think they realised they make errors ( & they called themselves solicitors:rolleyes:!!) & now tryinto correct them. I hope the court won't allow it!

 

2) Note 12 of their reply, "The internet screen dump to which the Defendant refers is not of course a copy of the application form and of course will not contain the defendant's signature as the credit agrement was electronically concluded".

I am actually quite bewildered by this point... if that screen dump didn't have my signature on it ...where exactly is my signature? The T&C sent was just a blank documents with no signature. I thought even if it is electronically concluded, under CCA 1974 it still need to show my signature e.g. a tick in the box. Are they confusing themselves here?

 

3) What do I do next? Is the hearing for summary judgement different than a normal civil trila? Reason I ask is because the judge didn't order for a witness statement & disclosure documents 14 days before 27th May. Although it was not ordered by the judge, I am thinking that i should submit my bundle to follow hthe protocol, it will give me the chance to tear them to pieces so to speak:rolleyes:. What do you all think?

[bazaar]

ok little tired, wheres the proof of service for point 8??

[bazaar]

ok zhanz, youve got time here. so lets look into there statemants further.

we can refute them.

but sleep on it one day

[1mansquest]

Brachers response in Paragraphs 14 and 15 regarding the IP address is ludicrous.

 

Exactly what is the point in having The Electronic Communications Act 2000 (ECA) and The Electronic Signatures Regulations 2002 (ESR) if the formal identification of a person applying electronically for a service is of no legal significance or value?

 

When Brachers say that IP address verification is of no value, they are saying the law is of no value, and that it doesn’t matter who applied for the service, it only matters who used the service. But what if a fraudster with your personal details went online and applied for a credit card in your name, intercepted it, then went on a spending spree. Who would they hold responsible for the debt now? To Brachers, it doesn’t matter if that was really you or not. But the law says otherwise.

 

The usage of a credit card that arrived at your door does not constitute an agreement. If a service is applied for electronically, ‘YOU’ must have agreed to the terms and conditions of service, and ‘YOU’ must be identified as having agreed to that service, not Joe Blogs fraudster, Aunty May, or Gladys Night and The Pips.

 

Brachers cannot be allowed to casually circumvent the law in this way, or fraudsters will have an even bigger field day than they already have, and we’ll all pay the price.

 

1MansQuest

[creditcardmug]

If their application is to file a new POC, you must object to it, and if it is allowed then you must be allowed to file an amended defence to it

[zhanzhibar]

If their application is to file a new POC, you must object to it, and if it is allowed then you must be allowed to file an amended defence to it

 

I think their application is to file an amended fully detailed POC... so one could interprete it as application for a new POC couldn't one? Question is will I be allow to object this? & as you said if it is allowed, then surely I am allowed to defend whatever new detailed they came up with in the POC.....this could go on & on & on & on if the court give them the benefit of the doubt ...

 

I am now a cynic when it comes to the justice & legal system of this country (not to mention the government !!)

 

Since the meetings i had with these bunch of so & so in court, it seems that the judges are all on the Claimant side (my apology if this is a generalisation!) I assume that some of these judges are also lawyers in a company where the company could also be a claimant in another case... so there it goes....

[creditcardmug]

Hey im probably the biggest cynic of all, but they cant just come in with a new POC, and you have no opportunity to defend it!, where would the justice be in that?

[zhanzhibar]

Hi all,

 

the saga continue. I was planning to reply to their "reply" to my WS but life got in the way & today I received this from the court

 

 

That last bit about "any party affected by this order may apply to the court to have it set aside varied or stayed"....Anybody can tell me what this means? I want to tell the court might as well removed everything rather than just that bit:rolleyes:

 

Also I just need confirmation from alll knowleadgeable caggers because I think Brachers has managed to confused me. I've read again CCA 1974 e-comms order 2004 & E-agreement order 2004 (which I attached here). Am I right in thinking that there was no amendment in both orders regarding s 61(1) of the cca and therefore although both stated that the agreement can be concluded electronically, S61(1) of CCA 1974 is still valid? What do you all think?

[steven4064]

The last bit means that you (or they) have 3 options if you disgree with the order (to amend the POC):

 

1. Ask for the order to be set aside (ie overrulled - leave the POC alone)

2. Ask for the order to be amended (ie changed - ask for a different change to the POC)

3. Ask for the order to be stayed (ie put on hold)

 

The electronic comms order does not remove the requirement that s61(1) be complied with - the agreement still has to have all the requirements of schedule 1 of the Consumer Credit (Agreements) Regulations 1983 - except that the signature can be replaced with a tick in the box. THere is an additional requirment in that case that the bank should keep records that allow it toidentify you as the debtor (IP address, eg) - therein lies a whole new can of worms.

[bach]

subbing

Lynn

[Docman]

Zhan

 

I agree with steven above but surely all the Order is saying is that AMEX have withdrawn their claim for the 'referral fee'. If I'm correct, I suggest it might not be worth doing anything now but just go along to court.

 

Is the meeting on 27 May to consider an application for summary judgment? If so, I suggest you continue with your defence of 'no enforceable CCA' [ie S61/65 & 127 (3)] and a non-compliant DN. At the very least, the electronic signature argument makes the case comlicated and is therefore not suitable for summary action. But of course, the defective DN does mean the claimant cannot succeed and so if the court wants to deal with this case quickly, you could ask the court to give summary in your favour.