Post Office/Bank of Ireland. credit card - CCJ & Restriction sold to cabot - reduced settlement?

[citizenB]

foolishgirl posted some links for WS and format ..

 

 

 

Originally Posted by foolishgirl

I suggest you look here for ideas on how to compile it & do so asap:

http://www.consumeractiongroup.co.uk...=1#post2181270

 

This is guidance on the format:

http://www.consumeractiongroup.co.uk...=1#post2906948

 

[sequenci]

Thanks for the prompt reply!

 

Yes, we do own our home, albeit we're pretty sure to be in negative equity right now....

 

Have you any other debts, if so how much do you owe in total (approx?)

[bradfordlad]

What type of postal service did the company usually mail letters to you by ! Did they send other "required" documents by 2nd class or UK Mail ? If so, you could offer up the argument that other statutory documents, etc were sent by 2nd class, what proof do they offer that the DN was sent by 1st class. Unfortunately this was the first case I was dealing with, and wasn't aware of the importance of keeping envelopes back then - I'm pretty sure it was 2nd class though because I was annoyed that the clock was laready ticking and they'd been tight on postage. The only proof they're offering is that they're prepared to issue a Witness Statement saying it was sent First Class (maybe calling my bluff?)

 

What type of mediation are you going through.. is it on the telephone ? Telephone, although they've yet to get back to me about a phone appointment

 

You should continue to prepare as though the hearing proper will go ahead. Witness statement should be in your own words really.. there is no point in using "legalese" if you dont understand what you are saying. Fair enough - I guess I'm not sure of how to "structure" it. i.e. What do I say? Can I change my "plea" to accept the claim?

 

Cheers

 

BL

[citizenB]

I have put some links from foolish girl in a post 201.

 

I dont think telephone mediation is anything to be worried about. If you have spoken to the mediator, I am sure they will get back with an appointment for you as soon as they can.

 

TBH, I do not know how you would change your plea to accept the claim

[bradfordlad]

Have you any other debts, if so how much do you owe in total (approx?)

 

Hmmm...bearing in mind this debt is in my wifes name, she owes probably 35-40k to various creditors (although how much is enforceable i'm not sure!)

[AndyOrch]

TBH, I do not know how you would change your plea to accept the claim

 

 

Quite simple withdraw your defence by way of an application and with the consent of the CC and Claimant,but why the change of heart BL?

 

Regards

 

Andy

[bradfordlad]

Hi Andy,

 

TBH I've had enough. I feel like "the system" has beaten us. If BoI are prepared to issue a Witness Statement saying the DN was posted First Class then thats our defence out of the window. As I mentioned earlier, I'm convinced it was Second Class as I was annoyed that they'd been tight on postage when the clock had already started ticking. Of course I could put something like that in my WS but who's a judge going to believe?

 

If only there was a way to get BoI to PROVE it was sent First Class. Anyone know if thats possible?

 

I'm happy to get my WS statement together in the next couple of days as it'd be very short & to the point. "They say it was 1st class - I say it was 2nd Class"

 

Should I mention the lack of household income in the WS, or would this sound as though I was trying to find an excuse not to pay becuase we can't afford to, rather than the fact that I don't believe we should (if you know what I mean?)

 

Thanks for all the advice guys, it's really appreciated.

 

BL

[bradfordlad]

Just a thought, could I put them to proof of how they can be certani it was sent first class, and if they have such proof why was this not presented a year ago when I first questioned the postage method?.... If so, would it go in the WS and how should I word it?

 

Cheers

[AndyOrch]

As in line with my previous comments I would not feel too comfortable either defending only on that point alone,however as I have also stated the fact that that they are pushing this point gives rise that the postage point is also the only thing they wish to fight on also.It would be advisable to prepare that WS centered on the very fact short and sweet but obvious to any DJ that they may be clutching at straws also and that you would welcome all evidence to be introduced that in fact it was first class and did allow the required time to allow rectification of said breach.Call their bluff you may still get an amicable settlement out of this yet.

 

Regards

 

Andy

[bradfordlad]

Thanks Andy,

 

Your line of thinking is exactly the same as mine!

 

Yes, I agree it was a case of "grasping at straws", but then it only takes one straw to break the camels back - as it were!!

 

I thought about writing to the solicitors as follows:

 

The Court Mediation Service have been in touch and inform me you would like to take the case to mediation – I am writing to confirm that I too am prepared to mediate.

I understand we still need to issue the Witness Statements to Court as per the above Order, and I confirm I will do so and let you have a copy as instructed. I trust you will reciprocate?

I am in receipt of your letter dated 8th December, in which you state the Claimant is prepared to attest in a Witness Statement that First Class postage was used to issue the Default Notice.

I would request that they provide the proof that will allow them to make such a definitive statement – especially as I have been making the same point for over 12 months, and yet, conveniently, this is the first time that such a statement has been offered.

Not sure if it's a good idea to write to the solicitors though, or whether I ought to make the point in the WS.

 

Could I ask for a bit of help in wording the WS as per Andy's comment above? Obviously I'll post my attempt but could do with a bit of guidance!

[AndyOrch]

Dont write to them revealing your hand BL your WS will necessitate that. By all means write with reference to mediation and that it should be conducted in writing only.

Try to think out of the box on theses matters and put yourself in the Claimants shoes so to speak.Post up your WS and I will check it over.

 

Regards

 

Andy

[bradfordlad]

Cheers,

 

So do you mean I can still put requests in my WS? something along the lines of, "The Claimant claims the DN was sent 1st Class, although they have been unable to provide any firm evidence to substantiate this statement, despite several requests over the last 12 months to do so."

 

Also, does it matter if my WS is almost word for word the same as my original Defence? My story has been the same the whole way through!

[AndyOrch]

Not requests but contentions, you can lead a DJ down the route, that it would have to be necessary for him/her to make the request and order the Claimant to disclose.

That is the secret of drafting successful WS,s it should not be anything like a defence but in your own words your intentions anticipations and aims should this matter proceed to trial.

This is the last throw of the dice get this correct and they will throw the towel in.

[bradfordlad]

I see what you mean, although I'm struggling to come up with a subtle wording that'll make the Judge say, "go on then - lets see some PROOF" Any thoughts....?

[bradfordlad]

OK, here's the first draft of my Witness Statement:

 

Witness Statement of Mrs BradfordLad

22nd December 2010

In the xxxx County Court

Claim Number: xxxxxxx

 

 

 

Between:

Bank of Ireland Post Office Credit Card (Claimant)

-And-

Mrs Bradfordlad (Defendant)

_________________________

WITNESS STATEMENT OF

Mrs Bradfordlad

_________________________

 

1. I, Mrs Bradfordlad of xxxxx, being the Defendant, am a litigant in person in this case.

2. I make this Witness Statement in support of my Defence against the Claimants claim against me.

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

4. It is admitted that the Defendant entered into a contract with the Claimant which was regulated by The Consumer Credit Acts 1974 and 2006. No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith.

 

5. As I pointed out in my original defence, the main issue of my Defence is the method of postage used when the Claimant issued the Default Notice.

6. Despitemany requests over the last year, the Claimants solicitor has been unable to produce any firm evidence that the Default Notice was issued using First Class Post, other than to say “it was sent using first class post”.

7. In the Practice Direction regarding Service of Documents as detailed in my original Defence, it states that: “3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.“

8. The Affidavits of service did not state the method of postage and as such it must be taken that Second Class postage was used.

9. Given that the Default Notice did not then provide sufficient notice to remedy the arrears as required by the Consumer Credit Act, it is my contention that the Claimant has no right of action in this case, and I respectfully ask the Court to strike out the Claimant's statement of case.

Statement of Truth:

 

I, Mrs Bradfordlad, the Defendant, believe the facts stated within this Witness Statement to be true.

Signed:

Dated:

[AndyOrch]

Ok BL

 

Perhaps at 8.

 

The Affidavits of service did not state the method of postage and as such it must be taken that Second Class postage was used.This is a simple matter of the Claimants proving service and the crux of which my defence relies upon.It is obvious that no affidavit or sworn Witness Statement can support any contention that the DN was in fact served first class to enable the stipulated time allowed to rectify any said breach.

Only disclosure of any mailing records would confirm this and it is my contention that it was in fact second class and therefore not as the CCA1974 purports.Therefore termination was a rescission of the account which invalidates any enforcement the Claimant may attempt.

Regards

Andy

[bradfordlad]

Ah mate, you should have been a poet!

 

Sounds great, thanks.

 

Just thinking back to the badly reconstructed dn they sent to me and the court with the AQ earlier this year, should I mention that with both dn's as exhibits to try discredit them?

All they said in their recent letter was "our client confirms that the dn you sent us is correct" - I knew that! Perhaps I could point out that they tried to pass off a wrongly worded one to hoodwink the court?

[AndyOrch]

Further I would seek calcification from the Claimant to which version of the two DNs disclosed they would be reliant upon should this matter proceed to trial.

 

Should suffice in raising any DJ eyebrow:-)

[bradfordlad]

You won't believe this - I've just got todays post, and they've sent over their WS (which is only half completed, see below) along with exhibits such as the original CCA (online application from 2008), copies of statements AND THE COPY OF THE ORIGINAL DEFAULT NOTICE THAT I SENT THEM!!! Cheeky b'stards!

 

I think I definitely need to enclose an exhibit of the 2 different DN's with your point above Andy.

 

They state in the covering letter that they enclose a Notice of Non-Attendance at the hearing under CPR 27.9, but I can't see it in the bundle (at first glimpse). Not sure if my wife can attend either (job interview!!), so I guess I ought to send something similar to court.

 

As for the WS, it's clearly a template the sols have sent the BoI representative, which they;ve then filled in the gaps (or most of them!). They do state: On October 28th we posted to the Defendant by First Class Post a statutory default notice...." - and the exhibit relating to that is the copy of the DN that I had to send them because their alleged copy was wrong - it's even got my writing on it!

 

In one point of their WS, they explain how the arrears accrued, with statements such as:

 

"The Defendant did not repay the balance and on (STATE DATE), we wrote to the Defendant giving her notice of our intention to litigate. (EXPLAIN HOW LONG THE LETTER BEFORE ACTION GAVE THE DEFENDANT TO PAY BEFORE YOU WOULD SUE THE ACCOUNT, AND SET OUT ANY INTERIM PAYMENT ARRANGEMENTS WHICH THE DEFENDANT OFFERED TO PAY). A copy of our letter dated (STATE DATE) is now produced and shown to me marked "(state initials).5"

 

The WS is full of these sections that haven't been amended - it looks rubbish and I'd like to rip it apart in my WS but I don't know if I'm allowed to mention their WS in my WS, and if I am what do I say?

 

All docs are to be withe the court tomorrow, so I'm going to have to email/fax or drop them off in person.

 

Any more advice Andy (or anyone else?!)?

 

Cheers pal,

 

BL

[AndyOrch]

There are two ways to compose a WS one where you state the facts and contentions another is where you simply break their points down point by point.Perhaps to encompass both styles BL would be advantageous on this occasion.A witness statement in opposition to say SJ would be style 2 but having benefit of hindsight and exposure to the Claimants intended WS I wouldn't see a problem of inclusion of both.

 

Points that i see above they stress that the DN was sent First Class this advocates and smacks of desperation that this is their only jewel.I must admit I have never seen this inclusion within a WS as it is a forgone conclusion that most thrifty Claimants would automatically choose the cheaper method and regard the DN as a non important document,hence most never retain a copy.Why would one state :- On October 28th we posted to the Defendant by First Class Post a statutory default notice...." quite !!!!!!! prove it.

 

Regards

 

Andy

[bradfordlad]

Ok - how does this sound?

 

Witness Statement of xxxxx

Exhibits xx.1 to xx.2

22nd December 2010

In the xxxxxx County Court

Claim Number: xxxx

 

 

 

Between:

Bank of Ireland t/as Post Office Credit Card (Claimant)

-And-

xxxxxxxx (Defendant)

_________________________

WITNESS STATEMENT OF

xxxxxxxx

_________________________

 

1. I, xxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx being the Defendant, am a litigant in person in this case.

 

2. I make this Witness Statement in support of my Defence against the Claimants claim against me.

 

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

 

4. It is admitted that the Defendant entered into a contract with the Claimant which was regulated by The Consumer Credit Acts 1974 and 2006. No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith.

5. As I pointed out in my original defence, the main issue of my Defence is the method of postage used when the Claimant issued the Default Notice.

6. Despitemany requests over the last year, the Claimants solicitor has been unable to produce any firm evidence that the Default Notice was issued using First Class Post, other than to say “it was sent using first class post”.

7. In the Practice Direction regarding Service of Documents as detailed in my original Defence, it states that: “3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.“

8. The Affidavits of service did not state the method of postage and as such it must be taken that Second Class postage was used. This is a simple matter of the Claimants proving service and the crux of which my defence relies upon. It is obvious that no affidavit or sworn Witness Statement can support any contention that the DN was in fact served first class to enable the stipulated time allowed to rectify any said breach.

Only disclosure of any mailing records would confirm this and it is my contention and recollection that it was in fact second class and therefore not as the CCA1974 purports. Therefore termination was a rescission of the account which invalidates any enforcement the Claimant may attempt.

9. Further I would seek calcification from the Claimant to which version of the two DNs disclosed they would be reliant upon should this matter proceed to trial. It is clear that the Default Notice the Claimant submitted to the Court with the original Allocation Questionnaire (a copy of which is provided under Exhibit xx.1) is an attempt at a reconstruction, whilst the Notice enclosed with the Witness Statement is a copy of the document I had to send to the Claimant solicitor (a copy of which is provided under Exhibit xx.2).

10. Given that the Default Notice did not then provide sufficient notice to remedy the arrears as required by the Consumer Credit Act, it is my contention that the Claimant has no right of action in this case, and I respectfully ask the Court to strike out the Claimant's statement of case.

Statement of Truth:

 

I, xxxxxxxxxxxx, the Defendant, believe the facts stated within this Witness Statement to be true.

Signed:

 

Dated:

[AndyOrch]

Ok - how does this sound?

 

Witness Statement of xxxxx

Exhibits xx.1 to xx.2

22nd December 2010

In the xxxxxx County Court

Claim Number: xxxx

 

 

 

Between:

Bank of Ireland t/as Post Office Credit Card (Claimant)

-And-

xxxxxxxx (Defendant)

_________________________

WITNESS STATEMENT OF

xxxxxxxx

_________________________

 

1. I, xxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx being the Defendant, am a litigant in person in this case.

 

2. I make this Witness Statement in support of my Defence against the Claimants claim against me.

 

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

 

4. It is admitted that the Defendant entered into a contract with the Claimant which was regulated by The Consumer Credit Acts 1974 and 2006. No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith.

5. As stated in my defence, the main issue is the method of postage used when the Claimant issued the Default Notice (need to expand here that the the prescribed period was detrimental and insufficient due to the late receipt of the DN quote CCA1974 14days etc). Therefore not allowing the time to rectify said breach (this is weak but you need to emphasis)

6. Despite numerous requests over the last year, the Claimants solicitor has been unable to produce any firm evidence that the Default Notice was issued using First Class Post, other than to say “it was sent using first class post”.

7. In the Practice Direction regarding Service of Documents as detailed in my original Defence, it states that: “3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.“

8. The Affidavits of service did not state the method of postage and as such it must be taken that Second Class postage was used. This is a simple matter of the Claimants proving service and the crux of which my defence relies upon. It is obvious that no affidavit or sworn Witness Statement can support any contention that the DN was in fact served first class to enable the stipulated time allowed to rectify any said breach.

Only disclosure of any mailing records would confirm this and it is my contention and recollection (remove you dont recollect very weak) that it was in fact second class and therefore not as the CCA1974 purports. Therefore termination was a rescission of the account which invalidates any enforcement the Claimant may attempt.

9. Further I would seek calcification from the Claimant to which version of the two DNs disclosed they would be reliant upon should this matter proceed to trial. It is clear that the Default Notice the Claimant submitted to the Court with the original Allocation Questionnaire (a copy of which is provided under Exhibit xx.1) is an attempt at a reconstruction, whilst the Notice enclosed with the Witness Statement is a copy of the document I had to send to the Claimant solicitor (a copy of which is provided under Exhibit xx.2).

10. Given that the Default Notice did not then provide sufficient notice to remedy the arrears as required by the Consumer Credit Act, it is my contention that the Claimant has no right of action in this case, and I respectfully ask the Court to strike out the Claimant's statement of case.

Statement of Truth:

 

I, xxxxxxxxxxxx, the Defendant, believe the facts stated within this Witness Statement to be true.

Signed:

 

Dated:

 

 

Just a few additions and alterations BL8)

[citizenB]

Point 9.. I think you mean "clarification" ..

 

calcify = to harden by deposition of or conversion into calcium carbonate or some other insoluble calcium compound.

Calcification is the adverb

[AndyOrch]

Point 9.. I think you mean "clarification" ..

 

calcify = to harden by deposition of or conversion into calcium carbonate or some other insoluble calcium compound.

Calcification is the adverb

 

BL copied and pasted from my notes dam yanky spell check:lol:

[citizenB]

BL copied and pasted from my notes dam yanky spell check:lol:

 

It actually made another word, so I dont think it would have been picked up. It is very frustrating when wordcheck doesnt know "which" word you want to use