eyeballgod v MBNA (Optima)

[eyeballgod]

Righty - the amount currently stands at £620.83.

 

How do I go about defending myself with the application for SJ? Do I just send a letter with my evidence or is there a form I need to fill in?

Edited June 28, 2012 by eyeballgod

[slick132]

Hi EBG,

 

Please see my email to you about the spreadsheet..

 

I'd like to check it over quickly.

 

[eyeballgod]

Sent!

[slick132]

OK, I thought the interest figures seemed a little low but it's because you are using a lower rate (15.9%) than I'm used to seeing with Barclaycard claims.

 

We'll come back to you about how to oppose the SJ Application.

 

[eyeballgod]

Is the 15.9% wrong? I think that was the original rate on the card and I don't recall it ever changing.

 

Many thanks for your help.

[slick132]

No that's fine.

 

I'm just used to a higher rate, which is what we recommend using with BC and they repay it.

 

[slick132]

Andyorch has provided this as an example you can use for layout and content but you MUST adapt everything to reflect YOUR OWN individual case.

 

Copy of a typical WS in objection to SJ

 

 

Witness Statement

 

 

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract.

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry XXXXXXXXX NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

7 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

8 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; 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 and 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.

 

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

10 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a letter before action on the 14th April 2008 demanding payment, being just XX days after the claimant claims the default notice was sent.

 

11 The delivery of the letter before action is good evidence that on or before XX XXXX, the Claimant terminated the agreement.

 

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

13 without prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the original claim is incorrect and They therefore request the claim value to be amended to £XX XXX XX. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations.

 

14 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

15 The claimant also claims £XX XX in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

17 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed .

 

Date: xx June 2012

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

signature

[eyeballgod]

Thanks Slick,

 

Is the witness statement the only thing I need to do at this point? Do I not need to put in my evidence?

 

Should I just send it to Northampton & Optima, or will Northampton be sending me notification of when the SJ hearing will take place and give me a opportunity to reply?

 

Any idea's how long this normally takes?

 

 

Apologies for the questions!

[slick132]

Hi EBG,

 

You should be sent a copy of any Order of the court that is made in response to the SJ Application.

 

The Order will specify what you must do and dates for doing it.

 

Get the WS knocked into shape first. By that time, you may have been told what to do with it !!

 

[eyeballgod]

I've had a letter from Northampton to say that the claim has been transferred to my local court.

I guess this means I need to get my arse into gear!

 

I've done a first draft of a witness statement as below.

I'm not sure if I will need to attach supportive evidence as Optima have done.

 

Could someone take a look and advise where I'm lacking?

 

Many thanks.

 

 

1. This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2. I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract.

 

3. The Claimant specifies a balance of £xx, inclusive of £xx which the Claimant is not entitled to claim from the Defendant. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

4. I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

5. At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

6. At trial I will contend that under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; 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 and 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.

7. The delivery of the letter before action is good evidence that on or before 03/10/2010, the Claimant terminated the agreement.

8. At trial I shall contend that the claimant has failed to act appropriately under pre-action protocols. I shall rely on evidence provided by the claimant that the claimant failed to respond to my attempts to resolve the dispute prior to proceedings. The claimant has provided different versions of the same documents each with incomplete data. The claimant has made no effort reach an agreement that would have prevented proceedings.

 

 

9 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

[citizenB]

Yes, you need to attach your evidence at this stage.

 

When do you need to submit this to the court ?

[citizenB]

Have you received an allocation questionairre yet ?

[eyeballgod]

Thanks CB,I don't know when yet - only just had a letter the other day that they were transferring to the local court.No sign of AQ yet.Plenty of time to improve my statement!

[eyeballgod]

And guess what is sat at home waiting for me! I have a notice of hearing from my local court.

It's got a date of the 4th September.

 

It's just a copy of what Optima already sent though. No allocation questionnaire.

 

Is this a hearing that I need to attend? I'll need to book the day off work if I do!

[slick132]

Hi EBG,

 

What Directions are given on the Hearing Notice, about Filing any documents beforehand.

 

Is anything said about attending.

 

[eyeballgod]

Hi Slick,

 

I've attached document that was sent. Doesn't really say anything!

mbnasjhearing1.pdf

[Andyorch]

Its an Allocation Hearing eyeball hence the lack of AQs...you must attend.

 

Regards

 

Andy

[eyeballgod]

An allocation hearing? So I shouldn't expect any more paperwork and I need to get my paperwork sent in a week before the hearing?

Should I be sending my witness statement with a form or some sort?

[Andyorch]

The SJ application is a separate entity to the claim process and runs independent, you should still submit your WS as specified in the time frame of that application.

[eyeballgod]

I'm confused - this is the only paperwork I've had through and it all relates to a summary judgement hearing. Are you saying this is something else as well?

[Andyorch]

No it runs parallel with the claim , once a defence is submitted it is allocated subject to the response of the Claimant.The Claimant also has the option of making application for SJ if its considered your defence has no merit, application for SJ must be made at the time of allocation or as close to.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

 

Overcome their application for SJ and the claim proceeds through to allocation.Have you been given a date for the SJ hearing or will both be done on the 4th Sept?

[eyeballgod]

Andy, not sure if you've read through the thread, but this case has been stayed since Jan 2011 when I put in a holding defence.

The recent action is to have the stay lifted and a summary judgement made against me.

At this moment in time, my only official defense submitted to court is the holding one.

 

The only notification I've had through from my local court is the one attached above.

 

Saying that I need to attend, do Optima also need to attend?

[Andyorch]

Ok so the claim has never been allocated therefore your upload refers to the SJ application and the hearing is for the 4th Sept.Disregard my post re Allocation Hearing.

Yes they must attend its their application.

[eyeballgod]

What would happen if they don't attend?

Am I to expect that this all might be dealt with on the 4th if it goes in their favour, but if it doesn't, it will go to trial?

There is no prospect that their case may be thrown out at this hearing?

 

I am somewhat concerned that my defence isn't very good. It hinges on the fact they are trying to claim for unfair charges and they failed to respond to my request for reduced payments before bringing the case to court.

[eyeballgod]

Remind me what happens with their expenses should they win the summary judgement? I've just had a list of their expenses through and it's roughly the same as the alleged debt! Their expenses would push the debt well above the small claims limit.