Hi guys

Just need a quick bit of input from Andyorch, when you have time Andy.

It's been a couple of months since I've been on here - just been too busy to look in.

Anyway, unfortunately one of my old post-2007 credit card debts has raised its ugly head in the meantime. I knew it was looming as PRA had resumed activity a few months ago, then their mates J&P sent an LBA a month back. I was hoping to intervene before they could issue the claim but I'd been away and they didn't hang about. Claim form duly received!

I've done the acknowledgement and now just need to enter a defence. I haven't sent off the usual CPR or CCA requests as PRA had already sent the online agreement and I have no intention of going to court on this. I just want to buy some time and eventually try to negotiate something.

I'd be very grateful if you could run your eye over the defence below.

Particulars of claim:

The claimant claims the sum of £8xxx.xx for debt and interest.

1. On xx/xx/2008 the defendant entered into an agreement with MBNA Europe Ltd for a credit card under reference 1234567890123456.

2. On xx/xx/2013 the defendant defaulted on the agreement with an outstanding balance of £6,xxx.xx.

3. On xx/xx/2013 the debt of £6,xxx.xx was assigned to Aktiv Kapital Portfolio AS Zug Branch, who itself, assigned the debt to PRA Group (UK) Ltd on xx/xx/2014.Notices of assignment were sent to the defendant in accordance with s136 Law of Property Act 1925.

And the claimant claims:

1. The sum of £6,xxx.xx

2. Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8.00% per annum from xx/xx/13 to xx/xx/16 £1,xxx.xx, and thereafter at a daily rate of £1.xx until judgement or sooner payment.

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PROPOSED DEFENCE

1 The Defendant contends that the particulars of claim are vague and generic in nature.

The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

2. Paragraph 1 is noted. I have, in the past, had an agreement with MBNA Europe Bank Ltd but I do not recognise this specific account number.

4. Paragraph 2 is denied. I have not been served with a valid Default Notice pursuant to the Consumer Credit Act 1974.

3. Paragraph 3 is denied. I am not aware of any legal assignment or Notice of Assignment pursuant to the Law and Property Act 1925 Section 136(1)

4. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

a) show how the Defendant has entered into an agreement and;

b) show how the Defendant has reached the amount claimed for and;

c) show the nature of the breach and evidence by way of a Default Notice pursuant to sec 88 CCA1974

d) show how the Claimant has the legal right, either under statute or equity to issue a claim

5. As per Civil Procedure 16.5 it is expected that the claimants prove the allegation that the money is owed

6. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of section 136 of the Law of Property Act and section 82A of the Consumer Credit Act 1974

7. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Is the above ok to submit? Do you have any further comments to add.

Many thanks!

Sham

That will suffice Shammy....I would send a CPR 31.14 though and include it in your point 2. as an addon to seeking clarification....it will bolster your point 4 also.

Regards

Andy

Thanks Andy. I will add that.

Just one thing Sham...those figures are not stacking up....6k - 8K ? Section 69 is at the discretion of the court...cant be included in the debt claim.

Its inflating the debt and also the claimants book figures?

It's £6.6k plus interest - takes it to just over £8k. The figures are correct, but thanks for bringing it to my attention Andy.

Seen a few of these this week...hope the courts are picking up on it...they can ask for it and they write it in the Particulars along with their calculation...but they cant add it.

Sorry Andy - I just re-read your post. So, they can't just add it off their own accord? Do I need to respond to it in the defence or leave it until later?

Well unless MCOL have changed their system..which I am not aware of...you input section 69 interest separately after the debt entered figure.

As it stands you owe £6,xxx.xx...not £8xxx.xx...so its inflated.

Look at how they drafted their first line.....

Particulars of claim:

The claimant claims the sum of £8xxx.xx for debt and interest.

Then look at the last part.......

And the claimant claims:

1. The sum of £6,xxx.xx

2. Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8.00% per annum from xx/xx/13 to xx/xx/16 £1,xxx.xx, and thereafter at a daily rate of £1.xx until judgement or sooner payment

Very sneaky...but run with it for now then you bring it to the courts attention in your Witness Statement that the claimants are falsifying their claims by inflating the base debt with 8% interest.

Therefore their pleadings are untrue.

Ok, thanks Andy. I'll run with it for now as you suggest but will look into it.

Besides the POC box, the front page finishes with figures for: 'Amount claimed' - 'Court fee' - 'Legal representative's costs' - 'Total amount'.

Any claim forms I've received previously have always included statutory interest in the total.

Example

Claim Form_Lowell.pdf

I mean that the 'Amount claimed' had the interest included. I'll see if I can get my hands on one of the previous forms tomorrow to check, but it's not overly important at the moment anyway, as my negotiation won't be starting any higher than the defaulted figure.

I mean that the 'Amount claimed' had the interest included. I'll see if I can get my hands on one of the previous forms tomorrow to check, but it's not overly important at the moment anyway, as my negotiation won't be starting any higher than the defaulted figure.

True...but as you can see from the above...that's the correct way....and even worse if your debt was 9K and they got you into Fast Track:-)

Thanks Andy. My new thread has somehow become merged with my old thread?

Just noting on the attached example, the POC does not state a defaulted figure, but states that the claim includes interest. We can only conclude that the Amount Claimed includes the interest. Am I getting that correct?

Furthermore, looking back at page 1 of this thread where I have given an overview of my POC on that claim, the format seems pretty similar to this more recent one...except that it does not state a figure for interest added. I guess I'll have to dig the actual form out.

Anyway, I'll bear all this in mind and will address it at the correct time. Maybe it will have actually sunk in my then! ;-)

ignore sorted.

dx

http://www.consumeractiongroup.co.uk/forum/showthread.php?462633-MBNA-court-Activ-Kapital

old thread for ref

dx

Cheers DX. The thread titles seem to have been swapped though, and I can't see an option to edit them.

Thread title amended....Section 69 interest should not be added to any figures (in the total boxes) it can be wrote in the particulars at the end of the PoC and show the calculation (days etc) and can show the figure they would like to claim if they get judgment ...but it cant be added to the debt at any time.

Andy

Thanks Andy. I very much appreciate you taking the time to go through this with me.

At which point should they formally ask for interest to be applied on top - after judgement? Or is this at the judges discretion, and based solely on the request made within the POC?

Once they have judgment ....section 69 may be allowed on the judgment..at the courts discretion...maybe not the full 8%..some only 4 %..depends how the claimant has behaved during the process ...(pre action protocol etc)

Check MCOL...i bet its down as a £8xxx.xx and not £6,xxx.xx ...also your CRAs....and then we get in to the realms of incorrect data reporting with the ICO.

Cheers Andy! I'll follow those points up in due course. Defence is due over next couple of days so I'm going to get the CPR request off today and then submit the defence.

I'm not expecting too much from this due to being post-2007 online application, but it will be interesting to find out if any cracks show up.

Sham

Once they have judgment ....section 69 may be allowed on the judgment..at the courts discretion...maybe not the full 8%..some only 4 %..depends how the claimant has behaved during the process ...(pre action protocol etc)

Andy the act uses the wording of "simple interest, at such rate as the court thinks fit or as may be prescribed,"

The Judgment Debts (Rate of Interest) Order 1993 is where the 8% comes from the base rate was about 6% then (so heaven knows why it hasn't been changed) the base rate is now 0.5 and has been since 2008 so is the rate for the entire term in any likely money claim.

So the equivalent rate of interest would be 0.66% (a third more than 0.5 same as 8 is a third more of 6).

Surely this would be a valid argument to put to a judge based on the wording of the act and that 8% represents a punitive rate and that an 8% rate merely encourages the claimant to wait longer close to the sb limit in order to basically obtain a windfall - assuming that they win of course.

I've often wondered why a claimant wouldn't wait for as long as possible to issue a claim and accrue 8% interest rate. Some people are happy to get that return on their property rentals. I know Andy has already answered one aspect of this - i.e. it can be requested, but not guaranteed.

Andy the act uses the wording of "simple interest, at such rate as the court thinks fit or as may be prescribed,"

The Judgment Debts (Rate of Interest) Order 1993 is where the 8% comes from the base rate was about 6% then (so heaven knows why it hasn't been changed) the base rate is now 0.5 and has been since 2008 so is the rate for the entire term in any likely money claim.

 

So the equivalent rate of interest would be 0.66% (a third more than 0.5 same as 8 is a third more of 6).

Surely this would be a valid argument to put to a judge based on the wording of the act and that 8% represents a punitive rate and that an 8% rate merely encourages the claimant to wait longer close to the sb limit in order to basically obtain a windfall - assuming that they win of course.

Very true MB...this has been subject for review over numerous years and yet it still trundles along.Rather than hijack Shamy's thread I will start a thread in the future on this very subject.

Regards

Andy

Brill Andy will look forward to it

Hi guys

Just a quick update. I've negotiated a F&F settlement on this by way of a Tomlin Order. The Order looks straight forward, but do you advise having it checked over by a professional, or can you suggest any common pitfalls that may be built in and I can check for?

Regards,

Shamrocker