Application to lift stay - what next?

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  • omega3dave
    omega3dave Posts: 127 Forumite
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    hi fatbelly

    thanks for reply

    was definitely a loan.

    one cannot count ones chickens I know, but I feel fairly strong at minute

    can I upload the basis of my witness statement for your perusal ?

    will not be until next weekend until I get this drafted out
  • fatbelly
    fatbelly Posts: 20,504 Forumite
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    yes, take reference numbers out before posting.
  • omega3dave
    omega3dave Posts: 127 Forumite
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    hi FB

    I am ready to upload my first draft witness statement

    https://btcloud.bt.com/web/app/share/invite/vt5Y4Soky3

    please can you take a look.

    all guidance welcome, thanks in advance

    thanks
  • fatbelly
    fatbelly Posts: 20,504 Forumite
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    OK -
    point 1 - put the date of claim in here

    point 2. Say what it is alleged that this is, e.g.:

    'The claimant alleges that I entered into a credit card agreement on xx month 1997.

    point 10 - put Limitation Act 1980 section 5 in there:

    An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.

    then quote 29(7) - well done.

    Also put Limitation Act 1980 section 5 in your point 11

    'and the claim is unenforceable under Limitation Act 1980 s5 and s29(7)'

    I think there's another section you could throw in there as well - will post again later
  • fatbelly
    fatbelly Posts: 20,504 Forumite
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    Yes, maybe point 12 as this is pre April 2007:

    12. As the allegation is that this is a regulated agreement dated xx xx 1997, s127(3) of the Consumer Credit Act 1974 applies. Under s127(3) CCA1974 the court shall not make an enforcement order under s65(1) if s61(1)(a)(signing of agreements) was not complied with, unless a document (whether or not in the prescribed form and complying with the regulations under s60(1) itself containing all the prescribed terms of the agreement) was signed by the debtor or hirer (whether or not in the prescribed manner). I have no written agreement or document of any kind. As the claimant has failed to comply with the requirements of s61 CCA1974, any agreement would be improperly executed under s127(3) CCA1974 and cannot be enforced by the court.
  • omega3dave
    omega3dave Posts: 127 Forumite
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    thanks FB

    I will amend and re-upload, will be around mid-week when I get
    chance to do this
  • omega3dave
    omega3dave Posts: 127 Forumite
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    hi FB

    I have now hopefully included your extra points correctly

    here is my amended statement

    https://btcloud.bt.com/web/app/share/invite/OMTi95cEQa

    please can you re-check for me ?

    is just over a week to go now, should I send my witness statement to the court tomorrow, ahead of the hearing ?

    should I send a copy to Restons their solicitors ?

    cannot thank you enough :j

    that point 12 you added seems to carry a lot of weight to my defence, thanks
  • fatbelly
    fatbelly Posts: 20,504 Forumite
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    edited 11 March 2018 at 9:43PM
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    Point 1 should include the date of their court claim. You said it was 18 months ago but your document says 20th March 2018

    You could spell out 'over six years' in point 11 rather than writing '6plus'

    The rest of it sounds fine.

    Your statute barred argument is the strongest one, given that even on their statements there appears to be a ten-year gap in payments. The s78 argument is a temporary one - they can comply with that with a bit of effort. The s127 argument could be overruled by a judge being convinced that HSBC always got a signed agreement. However, a good judge would want everything evidenced, and it sounds like HSBC have nothing

    Edit: yes, send to court and solicitors as soon as you can now.

    Edit2. You said it was a loan. Your point 2 says it was a credit card
  • fatbelly
    fatbelly Posts: 20,504 Forumite
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    If this was a loan s77 applies to CCA requests

    If it's a credit card it's s78. They are mirror images of each other. s77 says
    77 Duty to give information to debtor under fixed-sum credit agreement.
    .
    (1)The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
    .
    (a)the total sum paid under the agreement by the debtor;
    .
    (b)the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and
    .
    (c)the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.
    .
    (2)If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.
    .
    (3)Subsection (1) does not apply to—
    .
    (a)an agreement under which no sum is, or will or may become, payable by the debtor, or
    .
    (b)a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.
    .
    (4)If the creditor under an agreement fails to comply with subsection (1)—
    .
    (a)he is not entitled, while the default continues, to enforce the agreement
  • omega3dave
    omega3dave Posts: 127 Forumite
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    Point 1 should include the date of their court claim. You said it was 18 months ago but your document says 20th March 2018

    sorry, my mistake. 20th is when hearing is, I will correct

    this was a loan, not credit card

    many thanks FB, I will post off tomorrow to court and their solicitors
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