Robinson Way lifting a stay on a County Court claim made in July 2009 - Happy Christmas!!

[Bev250264]

If they're relying on a DN which they could of course [ahem] manufacture, there being no requirement to retain the original....... it would need to be effective on the account they plead in their POC.

 

Do the dates they quote [default, closure] relate to the originating account/s or the consol they refer to at point 19 of their w/s

 

i don't know Gez as I've never seen a default notice. This is all the POC says:

 

The Claimant claims outstanding monies due and payable by the defendant under a credit agreement whereby the defendant agreed to repay with interest the value of the credit obtained.

 

And the Claimant claims:

1. The sum on £13,424.84

2. Interet pursuant to S69 of the County Court Act 1984 at the rate of 8.00% from 8/11/07 to date hereof 600 days is the sum of £1765.44

3. Future interest accruing at the daily rate of 2.94 for costs

 

Also, just going through the Agreement of Sale again. There's nothing in the document to say it relates to us. It states "We hereby offer you an assignment on 6th July 2007 of the Accounts listed in the Schedule" but the Schedule is blank!!!! There's nothing at all through the whole document to say it relates to us Surely that's not right....

[citizenB]

If the DN was supposedly issued around 2009 then it is almost certain that it was defective. They had a real problem calculating the postal allowance and only gave 14 days from date of DN to remedy date. With no allowance for the Royal Mail - they were always sent by 2nd class mail as well in which case they should have allowed an extra 4 business days. HTH

 

This was mentioned in pipsters defence in the link I gave you earlier.

[Bev250264]

The original DN was supposed to have been issued in March 2004. There's not even a recon copy in their WS which leads me to believe that a) it doesn't exist or b) they haven't been able to get hold of it from HSBC. As I never received it I suspect a) is the answer.

[citizenB]

The original DN was supposed to have been issued in March 2004. There's not even a recon copy in their WS which leads me to believe that a) it doesn't exist or b) they haven't been able to get hold of it from HSBC. As I never received it I suspect a) is the answer.

 

In which case the remedy period would have been less - just 7 days, but they would still have been required to provide sufficient posting time.

 

Have you a copy of their communication log which should show an entry of when/ If a DN was sent ?

 

I dont know of anyone who has an HSBC DN from around that time.

 

So they claim you defaulted back in 2004 and are only now taking action ?

[Bev250264]

This has been going on for years. We defaulted in March 2004 and were paying a reduced payment to HSBC who passed it to RW in 2008 but they were incompetent from the start. there were all sorts of entries on our credit reports all for different amounts and dates and we tried and tried to get them to clarify exactly what we owed them. I've got copies of letters and faxes we sent them but they were never able to give us the information we required. In the end we notified them in writing that until they did give us the clarification we required - most importantly that an Assignment had taken place as we had never received one (just a really nasty phone call out of the blue one day) - we would withhold payment. They tried to take us to court in July 2009 but never followed it through. then they applied to lift the stay just before last Christmas and we have a summary judgement hearing on 22nd March.

[Bev250264]

Have you a copy of their communication log which should show an entry of when/ If a DN was sent ?

 

No. Nothing ever was forthcoming from HSBC.

[the_shadow]

Also, just going through the Agreement of Sale again. There's nothing in the document to say it relates to us. It states "We hereby offer you an assignment on 6th July 2007 of the Accounts listed in the Schedule" but the Schedule is blank!!!! There's nothing at all through the whole document to say it relates to us Surely that's not right....

 

The sale agreement would have been for a number of accounts listed in a spreadsheet normally, that being the schedule. The agreement will just refer to all accounts in that schedule. You could argue for disclosure of that schedule but it will in all likeliness just show the numbers on a sheet with all the other accounts redacted out.

 

Default notices are normally produced by mailshot, I know of no creditor that at that time used to retain copies... and of course it benefits them now with all the dates being wrong.

 

S.

[the_shadow]

No. Nothing ever was forthcoming from HSBC.

 

When I sar'd HSBC I got reams and reams of printouts from their account management system, loads of acronyms and appendixes explaining what each meant, you need to see sight of these documents as they state everything that has happened to the account.

 

S.

[Bev250264]

I haven't got time now have I? The WS has to be lodged with the court by this Thursday if I'm going to get it in 7 days before the hearing.

[the_shadow]

I haven't got time now have I? The WS has to be lodged with the court by this Thursday if I'm going to get it in 7 days before the hearing.

 

Not for a SAR no, that should have been done much earlier in the process I'm afraid

 

CPR18 is open for use to obtain information by questions but even thats pushing the timescales and it could only give you something for use at the actual hearing as I doubt you'll receive anything prior to Thurs... which the judge may not allow due to the lateness in any event

 

S.

[Bev250264]

But surely the fact that none of the information provided by RW ties up with the evidence I've got must go in my favour. The fact that they have statements of account saying I paid them money when in fact I was still paying HSBC, account numbers that don't tie up, letters requesting they provide us with a breakdown of exactly what we owed etc etc. A Contract of Sale with absolutely no reference to our accounts which therefore may or may not relate to our account or indeed any one of 1001 other people....

 

So I'm dead in the water then .......

[the_shadow]

No not at all, its not over till the fat man sings so to speak...

 

Its just with a little more prep you could have possibly had more information that might have helped you...

 

So it is what it is, put your arguments down in writing in a concise cohesive way and refute anything wrong with their statement.

 

S.

[sillygirl1]

You are not dead in the water, you have fallen into their trap in thinking that.

 

There is still a very very good chance this can be completely thrown out.

[the_shadow]

For what its worth just taken a quick look at the witness statement, looks good to me... and its not full of too much legal nous so to speak, it still looks like a litigant in person WS which is what you want.

 

I know the courts set the bar high on SJ apps that you need to show there is a trial-worthy argument, its just annoying you have to show so much of your hand to get over that bar

 

S.

[gezwee]

Bev

 

It's their w/s .19 that you should be hammering them with, they state there was a pre-assignment 'amalgamation' of 2 accounts [b/l & o/d] but....... they appear to seek to rely on the originating DN's and agreements. They can't have it both ways, either they have an amalgamation/consolidation of 2 x accounts, which would require a new regulated agreement with DN, NoA etc etc....... or they're pleading notices which have no bearing to the case.

 

Gez

[Bev250264]

It's their w/s .19 that you should be hammering them with, they state there was a pre-assignment 'amalgamation' of 2 accounts [b/l & o/d] but....... they appear to seek to rely on the originating DN's and agreements. They can't have it both ways, either they have an amalgamation/consolidation of 2 x accounts, which would require a new regulated agreement with DN, NoA etc etc....... or they're pleading notices which have no bearing to the case.

 

So what you're saying then is that because they have amalgamated the loan and the overdraft, the original agreement is null and void as it only relates to the loan and even if we had sight of the DN it would be irrelevant to the claim?

[gezwee]

In a nutshell, yes....

 

Where's the agreement for the consolidated account? The DN? The NoA? Statement of a/c?

 

They can plead whatever they like on the previously discharged accounts, the agreements and notices have no bearing on a 'thing' created 3 years later.

 

If what they state is accurate, the originating accounts will have a zero balance, do you have statements of account for both?

 

I'd be kicking lumps out of 'em if I ever saw that nonsense come up in a case against me

 

Gez

[Bev250264]

Here is the closing bank statement sent in their docs. It shows a zero balance

 

[ATTACH]34165[/ATTACH]

[gezwee]

So they are bringing an action with no cause but one of their own making.

 

They state the originating accounts were defaulted at 15.04.2004, this date being 5 days post zero balance..... they can't seriously believe you or the court will accept a DN on a fully discharged account can they?

 

They plead the original o/d and loan, they go on to plead the DN's and terminations, then go on to plead them combined as a consolidated account with no known agreement or term. Shocking w/s, the para that compiled it needs to seriously consider if they're in the right job.

 

Now 'if' they'd simply gone ahead and consigned each account a new number or reference that'd be a different matter, to admit they consolidated the 2 into one single account to bring 1 claim is inexcusable and effectively contracts out of the CCA.

 

Print the w/s out, go through the whole thing....... rebutt every point, and draft yourself a skel for the hearing...... I'd be looking to counter with a s/o and costs never mind their feeble attempt to gain s/j

 

Gez

[Bev250264]

oooh I could kiss you!!. I'm reworking my WS now and will post it up when I've done.

[gezwee]

You may want to have a squint at some Robbers way or Bryan Carter threads on here [search for 'won' in the title], they both have a habit of combining accounts - should give you an idea of what you want to say to the dj.

 

Popping out for a couple of hours now, if I get time this evening I'll see if I can find something suitable for you to read.

 

Gez

[Bev250264]

Here is the revised witness statement

[gezwee]

Bev

 

What date is the hearing?

 

These pointers may help you with your w/s and skel, you have to bear in mind that the claimant, having pleaded that the accounts were combined sometime between 2004 and 2007 cannot now replead that the original agreements persist.

 

They've produced nothing regarding the consolidated account and [as they plead it was a current account] won't have any documentation anyway with the exception perhaps of a facility letter....... this in itself contracts out of the Act due to S.82

 

IMHO...... I think they just shot their case to shreds

 

Gez

 

CCA 1974 S.82(2)

 

http://www.legislation.gov.uk/ukpga/1974/39/section/82

 

82 Variation of agreements.E+W+S+N.I.

(1)Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect before notice of it is given to the debtor or hirer in the prescribed manner.

[F1(1A)Subsection (1) does not apply to a variation in the rate of interest charged under an agreement not secured on land (see section 78A).

(1B)Subsection (1) does not apply to a variation in the rate of interest charged under an agreement secured on land if—

(a)the agreement falls within subsection (1D), and

(b)the variation is a reduction in the rate.

(1C)Subsection (1) does not apply to a variation in any other charge under an agreement if—

(a)the agreement falls within subsection (1D), and

(b)the variation is a reduction in the charge.

(1D)The agreements referred to in subsections (1B) and (1C) are—

(a)an authorised business overdraft agreement,

(b)an authorised non-business overdraft agreement, or

©an agreement which would be an authorised non-business overdraft agreement but for the fact that the credit is not repayable on demand or within three months.

(1E)Subsection (1) does not apply to a debtor-creditor agreement arising where the holder of a current account overdraws on the account without a pre-arranged overdraft or exceeds a pre-arranged overdraft limit.]

(2)Where an agreement (a “modifying agreement ”) varies or supplements an earlier agreement, the modifying agreement shall for the purposes of this Act be treated as—

(a)revoking the earlier agreement, and

(b)containing provisions reproducing the combined effect of the two agreements,

and obligations outstanding in relation to the earlier agreement shall accordingly be treated as outstanding instead in relation to the modifying agreement.

 

 

And logically [due to the termination/discharge date in April 2004]

 

CCA 1974 S.127 - The original as enacted [not the 2006 revised]

 

127Enforcement orders in cases of infringement

 

 

(1)In the case of an application for an enforcement order under—

 

(a)section 65(1) (improperly executed agreements), or

 

(b)section 105(7)(a) or (b) (improperly executed security instruments), or

 

©section 111(2) (failure to serve copy of notice on surety),

 

or

 

(d)section 124(1) or (2) (taking of negotiable instrument in contravention of section 123),

 

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—

 

(i)prejudice caused to any person by the contravention in question, and the degree of culpability for it; and

 

(ii)the powers conferred on the court by subsection (2) and sections 135 and 136.

 

(2)If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

 

(3)The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

(4)The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

 

(a)a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

 

(b)section 64(1) was not complied with.

 

(5)Where an enforcement order is made in a case to which subsection (3) applies, the order may direct that the regulated agreement is to have effect as if it did not include a term omitted from the document signed by the debtor or hirer.

 

 

CCA 1974 s.142

 

142Power to declare rights of parties

 

 

(1)Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—

 

(a)the court dismisses (except on technical grounds only) an application for an enforcement order, or

 

(b)where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection, the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained.

 

(2)Where—

 

(a)a regulated agreement or linked transaction is cancelled under section 69(1), or becomes subject to section 69(2), or

 

(b)a regulated agreement is terminated under section 91, and an interested party applies to the court for a declaration under this subsection, the court may make a declaration to that effect.

[gezwee]

Bev

 

Sorry, looks like we cross posted

 

Had a quick look through your w/s and........ too much detail really, let them make the case for the historical loans [they won't be able to], don't give them any ammunition. Their case is one of enforcing the terms of the consolidated account. The previously discharged accounts have little relevance beyond acknowledging that they both held a zero balance prior to assignment.

 

Gez

[Bev250264]

Thanks Gez. I just thought that if the DJ doesn't wear the consolidated account argument, there's a secondary argument (namely that RW are a bunch of ******* and couldn't organise a **** ** in a brewery ).

 

I'll re-draft and re-post. By the way, what's a skeleton and do I need one for the SJ?