Northern Rock v Me - help please

[surfaceagentx20]

Today is 20 August and the hearing is on 27 August in one week's time.

 

CPR 24.5(1) says:

 

If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must

(a) file the written evidence; and

(b) serve copies on every other party to the application,

at least 7 days before the summary judgment hearing.

 

You don't even have time to get your evidence in opposition ready filed and served in accordance with the ruel.

 

I think the court staff were unhelpful. It was after all their cock up which resulted in you not receiving the amount of time to get ready which the rules provide. Try contacting the other side. Tell them the hearing has been listed without providing sufficient time in accordance with the rules. Tell them that if they do not agree to the hearing being adjourned you will attend the court on 27 August, seek an adjournment and ask the court to award the costs of the wasted hearing to you. Tell them you require an answer by 12 noon Monday latest.

 

In the meantime, start putting together a witness statement in opposition to the one served upon you and let us have a look at your draft when it's ready.

 

x20

[eddie303]

Thanks as always x20

 

I will phone the other side sols in the morning and tell them exactly that, and in the meantime start preparing a witness statement.

 

I'd like to have a look around the forum at other example witness statements but searching for "Summary Judgement" didn't turn up much. Can anyone suggest what keywords I should search for to find examples?

 

Eddie

[surfaceagentx20]

I don't think that a witness statement in opposition to an aplication for summary judgment with the very specific points made by the opposition is something that can be ripped from a template. Instead, address each sentence or point in the opposition's witness statement one by one and put that in your own draft statement.

 

x20

[eddie303]

Aaah OK, yes, that sounds the best way to go about it. Will do.

Eddie

[eddie303]

I just spoke to the Sols and without me asking they said they have written to the court yesterday asking for the hearing to be relisted due to it not giving me enough time to prepare!

 

So I phoned Gateshead County Court, they said I would need to write to the court stating I agree to the Adjournment also, also stating the dates I am away. So I'll get a letter to the court in the post today and send it Recorded.

 

Eddie

[eddie303]

URGENT, what shall I do now!?

 

Didn't get a letter from court, so rang them just now. They have received the sols letter and also my letter both asking for the hearing to be adjourned. But they haven't processed them yet!

 

She said there are no judges there to deal with it today anymore, so she will personally hand it to them first thing when the judges come in at 9:30AM tomorrow. But the hearing is at 11AM!

 

She said there is no guarantee that they won't just decide to look at the letters at the hearing itself.

 

She did say that looking at the sols letter it looks like they are not going to turn up.

 

But I take it this means I should go anyway just in case?

 

She also said if both me and the sols turn up they might decide to have the hearing anyway since we're both there!!

 

Does that mean I now have to prepare to argue my case in case they decide to have the actual hearing for the Summary Judgement?!

 

Help!

 

thanks,

Eddie

[eddie303]

Bumping as urgent :-|

[surfaceagentx20]

I wouldn't bother turning up. The solicitors have represented to you that they wil not go ahead with the hearing tomorrow. In reliance upon that representation you wil not have attended the court. That the hearing should not go ahead is self-evidently fair since you were not given the requisite period of time to prepare. Even if the Judge is unhappy that a hearing fixture will have been wasted, he can't criticise you and he can't go ahead in your absence and in the presence of the other side if your absence has been induced by that other side's representation. My bet is the other side will not turn up. He'll have your letter too so he won't proceed in the other side's absence any way. The justice is in adjourning the hearing and that is what I fully expect the Judge will do.

 

x20

[eddie303]

x20 thank you so much, I was getting ready for a nightmare of a day tomorrow, preparing to unexpectedly get up 5AM and drive 3 hrs there and back to Gateshead for nothing. I won't bother now having read your message. What a relief

 

I'm away next week for a week and when I get back I'll do a witness statement and post up here for comments.

 

thanks again,

Eddie

[Pipster2797]

*subbing*

 

Hi Eddie, whats the latest with your case? I'm pretty much in the same boat as you with NR for an unsecured loan so will be watching and hoping everything goes ok for you!!

[eddie303]

The latest is that the hearing did get adjourned, and they then decided to transfer it to my local County Court and for the hearing to take place there. Recently I got the notice from my local court giving the date for the Summary Judgement as beginning of January. So that gives me more than enough time to prepare a witness statement I'll be posting it here for comment once I have it done.

 

What stage are you at Pipster?

 

Eddie

[Pipster2797]

just got the claim form yesterday and sending off my Acknowledgement of Service Now. The DN on mine is also dodgy as the POC states

 

"DN Dated 18th June 2009 was sent to the defendant by first class post the next working day, which notice required the defendant to remedy the said breach by 5th July 2009."

 

18th June 2009 = Thursday

19th June DN issued = Friday

5th July = Sunday

 

So the DN was served on the Monday 22nd of June only giving me 13 days to remedy the breach.

 

I've just been scanning the claim form and the POC to start a thread off

[Pipster2797]

eddie here is a link to my story

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/226180-pipster-n-rock-unsec.html#post2505161

 

I'll be watching your thread at how everything goes and I hope you win.

[eddie303]

Well the Summary Judgement hearing date is 8th January 2009, so I *must* post my Witness Statement today in order to give the 7 days.

 

I am posting here my first draft in the hope that perhaps someone might be able to comment on it sometime before about 1:30PM today, after which I will need to print things out as have to leave by about 2PM.

 

 

In the XXXXXXXXXXXX County Court

Claim number XXXXXXXXXXXXX

 

Between

 

Northern Rock PLC - Claimant

 

and

 

XXXXXXXXXXXXXXX - Defendant

 

 

WITNESS STATEMENT OF XXXXXXXXX

 

I, XXXXXXXXXXX of XXXXXXXXXX will state as follows:

 

1. I am a defendant in these proceedings. I make this witness statement in opposition to the claimant's application for Summary Judgement.

 

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3. There is now produced and shown to me a bundle of documents marked "XX1". The exhibit XX1 contains copies of the Default Notices dated 7th March 2009 and 2nd April 2009, and a Formal Demand dated 16th April 2009, served by the Claimant.

 

4. There is now produced and shown to me a bundle of documents marked "XX2". The exhibit XX2 contains copies of the Judgment in Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

 

5. There is now produced and shown to me a bundle of documents marked "XX3". The exhibit XX3 contains copies of the sections 87 88 and 89 Consumer Credit Act, Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Regulation 2 of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

 

6. There is now produced and shown to me a bundle of documents marked "XX4". The exhibit XX4 contains copies of section 7 The Interpretation Act 1978.

 

7. The respondent does not accept that the applicant has established that there is no compelling reason why there should not be a trial. The applicant has failed to supply any evidence which supports that the claim should be disposed of without trial. The respondent would seek to draw to the courts attention the following matters.

 

8. The Claimant refers to Default Notices dated 8th May 2009 and 2 June 2009. I submit that these Default Notices are irrelevant due to the Claimant having already terminated the loan agreement on 16th April 2009. If the Claimant still maintains that these letters are relevant I put the Claimant to strict proof that a new loan agreement (upon which the Claimant would be able to issue notices) was entered into after the termination of the old loan agreement on the 16th April 2009.

 

9. I submit that the Default Notices dated 7th March 2009 and 2nd April 2009 are not compliant with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). The Court will note that both of these Default Notices are identical in wording apart from the date of the notice.

 

10. The Default Notices do not state an actual date by which actions required to remedy the breach must be taken and are both therefore invalid. This is a requirement of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) Regulation 2(2) schedule 2, 3©.

 

11. The Court will note that the Claimant's calculations of time allowed to remedy the breach, in paragraph 9 of the Claimant's statement accompanying the application for Summary Judgement, are incorrect. The Claimant's calculations do not take into account that under the Interpretation Act 1978 Section 7, date of service falls on the 2nd working day after posting if sent First Class, and on the 4th working day after posting if sent Second Class. The Claimant's calculations also do not take into account that the first Default Notice is dated Saturday 7th March 2009, and that under CPR 6.26 the earliest possible date that the Claimant is allowed to use as a date of posting is the next working day, Monday 9th March 2009. I put the Claimant to strict proof of the effective service dates of each Default Notice.

 

12. I maintain that both Default Notices did not allow me enough time to remedy the breach and are therefore invalid. Taking into account the facts in point 11 above, I again put the Claimant to strict proof that their Default Notice allowed me the sufficient time prescribed by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) to remedy the breach. To date the Claimant has failed to provide this proof.

 

13. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid.

 

14. As the Default Notice issued by the Claimant is invalid and can be shown to be invalid at a trial, I request that the court do dismiss the Claimant's application for Summary Judgement.

 

I, XXXXXXXXXXX, believe that the facts stated in this witness statement are true and factual.

 

 

Signed ________________________________

 

Dated this 30th December 2009

[eddie303]

Well after further tweaking below is the final version of the Witness Statement I settled on and sent, just posting for reference.

 

My Summary Judgement hearing was last Friday 8th, and the outcome was very good, although very interesting indeed. I will post about it shortly.

 

 

 

 

 

On behalf of: Defendant

Witness: XXXXXXXXX

Number: 1st

Exhibits: XX1, XX2, XX3, XX4

Date: XXXXXXXXXXXX

 

 

 

In the XXXXXXXXXXX County Court

Claim number XXXXXXXXXX

 

 

 

 

Between

 

Northern Rock PLC - Claimant

 

and

 

XXXXXXXXXXXX - Defendant

 

 

 

WITNESS STATEMENT OF XXXXXXXXXXXXXXXX

 

 

I, XXXXXXXXX of 10 XXXXXXXX Road, XXXXXXX, XXXXXX, XX11 8XX will state as follows:

 

 

1. I am a defendant in these proceedings. I make this witness statement in opposition to the Claimant's application for Summary Judgement.

 

 

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

 

3. There is now produced and shown to me a bundle of documents marked "XX1". The exhibit XX1 contains copies of the Default Notices dated 7th March 2009 and 2nd April 2009, and a Formal Demand dated 16th April 2009, served by the Claimant.

 

 

4. There is now produced and shown to me a bundle of documents marked "XX2". The exhibit XX2 contains copies of the Judgment in Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

 

 

5. There is now produced and shown to me a bundle of documents marked "XX3". The exhibit XX3 contains copies of the sections 87 88 and 89 Consumer Credit Act 1974, the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561), andConsumer Credit (Enforcement, Default and Termination Notices (Amendment) Regulations 2004.

 

 

6. There is now produced and shown to me a bundle of documents marked "XX4". The exhibit XX4 contains a copy of section 7 The Interpretation Act 1978, J R BICKFORD SMITH's (Senior Master, Queen's Bench Division) Practice Direction 1985, and Section 6.26 of the Civil Procedure Rules.

 

 

7. The respondent does not accept that the Claimant has established that there is no compelling reason why there should not be a trial. The Claimant has failed to supply any evidence which supports that the claim should be disposed of without trial. The respondent would seek to draw to the Courts attention the following matters.

 

 

8. The Claimant refers to Default Notices dated 8th May 2009 and 2 June 2009. I submit that these Default Notices are irrelevant and should be disregarded due to the Claimant having already terminated the loan agreement on 16th April 2009 (Exhibit XX1). If the Claimant still maintains that these notices are relevant I put the Claimant to strict proof that a new loan agreement (upon which the Claimant would be able to issue notices) was entered into after the termination of the old loan agreement on the 16th April 2009.

 

 

9. I submit that the Default Notices dated 7th March 2009 and 2nd April 2009 in Exhibit XX1 are not compliant with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (copy in Exhibit XX3). The Court will note that both of these Default Notices are identical in wording and form apart from the dates of the notices.

 

 

10. The Default Notices (Exhibit XX1) do not state an actual date by which actions required to remedy the breach must be taken and are both therefore invalid. This is a requirement of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) Regulation 2(2) schedule 2, 3© (copy in Exhibit XX3).

 

 

11. The Court will note that the Claimant's calculations of time allowed to remedy the breach, in paragraph 9 of the Claimant's statement accompanying the application for Summary Judgement, are incorrect. The Claimant's calculations do not take into account the the documents in Exhibit XX4. According to these documents, date of service falls on the 2nd working day after posting if sent First Class, and on the 4th working day after posting if sent Second Class. The Claimant's calculations also do not take into account that the first Default Notice is dated Saturday 7th March 2009, and that under CPR 6.26 (Exhibit XX4) the earliest possible date that the Claimant is allowed to use as a date of posting is the next working day, Monday 9th March 2009. I put the Claimant to strict proof of the effective service dates of each Default Notice. To date the Claimant has failed to provide this proof.

 

 

12. I maintain that both Default Notices did not allow me enough time to remedy the breach and are therefore invalid. Taking into account the facts in point 11 above, I again put the Claimant to strict proof that their Default Notice allowed me the sufficient time prescribed by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (copy in Exhibit XX3) to remedy the breach. To date the Claimant has failed to provide this proof.

 

 

13. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 (copy in Exhibit XX2) in the Court of Appeal, the Court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (copy in Exhibit XX3) it would render the Default Notice invalid.

 

 

14. As the Default Notice issued by the Claimant is invalid and can be shown to be invalid at a trial, I request that the Court do dismiss the Claimant's application for Summary Judgement.

 

 

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

 

 

 

 

 

 

Signed ________________________________

 

 

Dated this XXXXXXXXXXXXX 2009

[eddie303]

Well what an interesting experience my Summary Judgement hearing was.

 

The Summary Judgement was dismissed!! :D:D:D:D:D

 

But NOT because of my defence argument that I was not given enough time by the DN to remedy the breach.

 

When I went through all the Northern Rock DNs the night before the hearing, I discovered that I had two DNs dated 8th of May, but with different amounts of arrears required to remedy! What is funny is Northern Rock were arguing that their DN of 8th of May superseded the earlier DNs (the 8th May one was the final one I received before they Terminated). But their solicitors obviously hadn't realised they had sent two out by mistake on that date.

 

When the hearing started the judge began to question me about the dates of the DN issue, and I began to lose my argument with him on this front. This is because although with the earlier DNs it was clear I was not given 14 days, the judge was arguing that the 8th of May DN *did* give me 14 days even taking into account the rules.

 

But then I pulled out of the hat the fact that I had 2 DNs with different amounts, and the judge was then *very* interested and asked to see them both. After Northern Rock's solicitor having looked at them and admitting she didn't know what to say, and after he examined them for a couple of minutes, he said I should have declared this before but as I was an LIP he was going to allow it.

 

So he told the Northern Rock sols he was NOT going to award the SJ and he then ORDERED me to change my defence to reflect the new development. He hinted to the Northern Rock sols that they had really cocked up here

 

So I have now received a General Form of Judgement or Order from the court confirming the Claimant's application for SJ is dismissed, and it says:

 

"The Defendant must file and serve an amended defence (to include reference to there being purported default notices with differing amounts of arrears specified there on both dated 8 May 2009) by 4:00pm on 22 January 2010."

 

So, in summary, I made a big mistake missing the "two DNs with different amounts" thing, I should have realised that was a huge thing and based my defence on it. But luckily the judge helped me out and the end result is great. Hopefully now Wallers will withdraw, but if they don't I can't see them possibly succeeding having made such a big cockup.

 

But without this I think he might have awarded them the SJ. Let me finish this post and make a new post telling a bit more about what happened.

[MandM]

Well done Eddie. Some DJs are certainly better than others. You found a good one there. Let's hope you can go on to win. Fingers crossed for you.

 

M

[eddie303]

So continuing on from my last post.....

 

A couple of interesting things that came up in my hearing.

 

I had argued that Northern Rock served two defective DNs before then terminating on the 16th April 2009.

 

Now the two DNs before the termination were dated 8th March and 2nd April 2009. The judge seemed to accept that these did not allow me enough time BUT he argued that

 

a) If the 8th March and 2nd April DNs were defective, then also the Termination on 16th April was invalid.

b) The 8th May DN *did* give me enough time.

 

Now I had read the discussions on the "A Tale of a Dodgy DN" sticky thread about the question of whether if the DN is defective this then means the termination is invalid. I tried to persuade the judge that if they send a letter terminating then it is plain a clear, and that in my mind as a consumer it left me in no doubt that the contract was terminated. He said he understood where I was coming from but as far as he was concerned they could not terminate on the back of defective DNs and therefore the contract remained. So I think this is an issue that needs careful thought for others planning a similar defence, about how to persuade a judge who comes up with this argument that once they terminate they cannot then just repair things by issuing a valid DN.

 

The other interesting thing was I and others who posted on this thread thought that the 8th May date did not give enough time to remedy. However this judge was quite convinced that it did. His argument went like this:

 

DN was dated Friday 8th May. According to CPR 2.6, add two days which takes you to Sunday 10th, but as it is a Sunday, the "next business day" referred to in 2.6 means date of service is Monday 11th. As 8th of May + 17 days stated in the DN = 25th May, I had been given the required 14 days.

 

Now I had read CPR 2.6 differently. I thought you add 2 *business* days, so DN dated Friday 8th May had a date of service of Tuesday 12th May.

 

I explained my understanding to the judge, but he disagreed with it.

 

So was the judge right about this point?

[MandM]

May be worth posting this up in a couple of the DN threads Eddie. I think it's very relevant. Particularly the termination bit.

 

With regards to "dates" for service I thought that this was quite clear too>>>>

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

 

 

M

Edited January 18, 2010 by MandM
Added a bit

[eddie303]

Hmm, yes I guess that does settle it about the dates

 

But the issue about termination is important, I'll post to the main sticky DN thread.

 

I have to come up with an amended defence now in the next couple of days, so I am wondering if I should scrap the arguments about dates and just argue about the two default notices with different amounts? Or shall I keep my arguments about dates in there and add the new argument? (question for anyone, not asking you directly M)

[MandM]

Did you ever write accepting their unlawful recission of contract?

 

Perhaps now that it is an issue as the judge has brought it to your attention you'll look back through your paperwork and find that letter.

 

M

[eddie303]

No I definitely didn't do that, I still tried to negotiate instalments . Knowing what I know now, wish I had.

[eddie303]

OK so I posted here

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/208663-tale-dodgy-dn-further-102.html#post2708212

 

and have had fruitful discussions there.

 

So basically I'm not changing my defence much other than adding arguments about why the 8th of May DN is defective. I'll keep arguing that all the DNs are defective but particularly the very latest one where they sent duplicate DNs with differing amounts.

 

I was worried they might try and send me a new DN while at court, correcting the earlier one, but diddydicky on the other thread said they can't pull that now its at court.

 

I'll post my amended defence when I have it ready.

[MandM]

Perhaps now that it is an issue as the judge has brought it to your attention you'll look back through your paperwork and find that letter.

 

M

 

Have you REALLY looked

 

M

[eddie303]

Have you REALLY looked

 

M

 

lol - no need to look i know for absolute certain i never wrote to them mentioning anything about them having terminated a contract