Right I will crack on with it going off tomorrow then, nothing ventured nothing gained eh.....(recorded del both ways I take it?)

Hi IGNM had trojans today coming up on the pc when messaging this morning so had to wait for full scan before I could get back online again. With time against me & the school run this afternoon it was unfortunate I did not get chance to see your reply and ended up dashing to court in a right state with just the WS in the end Please dont think all your assistance has gone to waste at least I have it now ready for the next stage....and appreciate your work on this for me. I have also arranged for a PSU at the court next wk too to attend with me. Will I hear anything from the court before next Mondays hearing or is this it now till then?

Thanks IGNM all getting there now....however will this Skeleton & Amended Defence be acceptable at this stage as I thought an amended defence had to be done via an N244 and the WS sent Saturday (being dropped off today at court) says whats been submitted by them was codswallop. My WS also mentioned the relevant reasonings why there evidence also showed no compelling reason why it should not go to trial either. FACT With the WS finishing off with In addition to the points raised I would ask for the court to allow me to amend my orig defence as at the time I submitted the defence I did not have in my possession a full compliment of the documents which the claimant has now only part disclosed. Shall I keep this skeleton & amended defence ready now for when I have the permission from the DJ???

Thanks IGNM all getting there now....however will this Skeleton & Amended Defence be acceptable at this stage as I thought an amended defence had to be done via an N244 and the WS sent Saturday (being dropped off today at court) says whats been submitted by them was codswallop. My WS also mentioned the relevant reasonings why there evidence also showed no compelling reason why it should not go to trial either. FACT With the WS finishing off with In addition to the points raised I would ask for the court to allow me to amend my orig defence as at the time I submitted the defence I did not have in my possession a full compliment of the documents which the claimant has now only part disclosed. Shall I keep this skeleton & amended defence ready now for when I have the permission from the DJ???

Calendar days it is then...my misunderstanding thankfully that was sorted just in the nick of time then eh! What dates in your opionion should I change it back to then....? (My WS to restons saturday will be wrong then at point 13 I put Clearly defined is the fact that the default notice does not comply with the requirements as specified in Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) 3© above; as the notice only gave 10 days for compliance not 14 days as required) OOPS Also I understand now 40-46 in the skeleton is coming out altogether, and point 17-18 in the amended defence please confirm... Lastly the bits on the counterclaim querys I mentioned what do you think re these...point 20 mentions counterclaim in it (I also took it off the Header section on the amended defence bit too. am I right to delete these words. Also where it signs off "the defendant repeats her defence" does that mean all what I have said previous then will stand to I ask this as the orig defence contained all the valid case bits etc as to why all this was being defended. (ie reasons/caselaws on faulty DN agreement no T & C etc, no full statements supplied as per my CPR request?) Excuse my ignorance its only because I wondered if I had to pad it out like the orig defence was....thanks

please advise??

Re amended defence thanks - here goes what I have done, appreciate your advice again where needed..... I have taken out the counterclaim bit in the header on this or shouldnt I as you mentioned in the skeleton bit to prob do it??? Re point 11 I changed the dates to expires on either the 30th Jan or the 3rd February here (for the 14 days thing) you ok with this? Point 17 & 18 you underlined as with the skeleton bit above too on para 40-46?? I dont see any ref to this where would I see such info??? point 20 mentions counterclaim in it? and where it signs off the defendant repeats her defence does that mean all what I have said previous then will stand too in the valid points orig raised (ie faulty DN agreement no T & C etc, no full statements supplied as per my CPR request?) I hope to hear from you soon again on both the above skeleton & amended defence querys. Hopefully I will then be at the final stages in all of this???? (dont know where I would have been without your help - thanks)

I will go over the amended doc seperately....happy to keep have your input...

Ok here goes the skeleton IGNM. In relation to some unsurety on my part could you delete as you see fit whats needed to be kept in or not? My queries in relation to this skeleton are:- Do I have to print off these extracts from websites where point 14 - 19 inclusive and 38, 39, 41,48 refer to & inc these to the court? What do I put in point 35 at the first bit where its got the XXXX? Point 42 & 43 (interest got frozen when I went into Payplan) also is 44,45,46,50 & 51 applicable. Point 47 which statement should I be using for APR would it be the last one they printed off & sent me? Hope I am not putting you to too much work....thanks again MDAW Skeleton.rtf

Great, will you be able to have a look then today at the amended defence now you have my copy. I have looked over your skeleton and happy to amend some sections with figures (from 2004 statements etc), also point 10 mine was a "priority request form" etc...lots of other things etc will you again run your eye over it to see what can be kept & taken out in relation to my case. I will drop it off to court tomorrow with my WS then post a copy to the other side for Tues - thanks

The trouble is the other side wont be receiving it on the same day though will they...will this matter? After all they have the WS as stipulated

Great IGNM appreciated (would this be something I take into court on Monday when I drop the WS in or at what point do I send it?

Hi IGNM (It went off to Restos this lunchtime will del to the court by hand the same on Monday) Heres attached is a copy of my defence from March the MCOL was slightly shorter tho due to the amount of words allowed but this full one did accompany the N150 AQ that had to be in with my Draft order for directions #115 /other info I included etc by the 11th May (when there docs in order I could defend myself still had not arrived to me at that time!!) The SJ application hearing applic notice arrived just after then co-incidentally My POC is in posting #14 where they tried it on with S69 interest at that time too. This was mentioned in the defence which creditcardmug helped me with at the time. tried to settle in Dec 08 with an offer to MBNA (this was copied to Restons on 5th Feb) I am also with Payplan who they did not act reasonably in accepting my payments offered. Altho still paid them see my post#33. I even still kept paying them payments (up until last mth) when I told Payplan (at my review) no more as its up to a judge to decide now. Here is a copy of the SJ http://i612.photobucket.com/albums/t...mJudgement.jpg This details a claim fee of £190 & fixed costs of £100 Re my witness statement in the end I took out that paragraph you told me too and I inserted in:- at point 10 at the end of that sentence..... This shows that this document has been altered from the original Default Notice 20. With regards to MBNA3 these are not the T & C applicable to the original Application. 21. Withregards to MBNA 4 attached to the Application Notice the claimanthas alsoonly disclosed statements from 2004. My statutory rights therefore in my CPR 31.14 request (exhibit mdaw3) has not been complied with. A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case will be required. I have requested a full portfolio of paperwork from MBNA (Subject Access Request letters (exhibit MDAW06 & MDAW07) - to date no paperwork has been provided IGNM (6th June I requested this SAR as I have 2 accts with MBNA so thought I would slot this one in at the same time on a 2 for 1) I have not had any order directions ever from the court yet (at what stage will I be allowed the amended defence do I get told?) Also next Monday in court am I allowed to take anybody in with me. CAG Defence version.doc

Thanks I am ready for the print off now (phew) MBNA3 were not the orig ones but the latest £12 ones by the way...

It states on the bottom of there letter heading Please note - Wed do NOT accept service of documents or proceedings by Fax or Email I'm pretty much almost there now with my WS & its only the T & C and covering letter bit I am knocking on the head? Last minute me eh!!

I'm may be struggling to get it in the post today IGMN as the post goes at 12pm. Appreciate your input & thoughts nevertheless.

Nicely worded IGNM your advice appreciated tomorrow when you have more time thanks

I am sure IGNM will knock it on the head for me in no time & hope to hear back soon fingers crossed. With the T & C though why do they they state they are under no obligation to provide a copy of the original so have complied with its obligations? Do I not need to refer to this part they put in there Application hearing also the other couple of questions I asked too still leaves me in a state of confusion. Do I need to accompany printing off the acts to inc as exhibits too? Also even an accompanying letter to the court. Wished I had more time, as I would hate to drive over to Warrington to hand deliver it personally, how nice that would be NOT!

Thanks for popping in, I have to post it tomorrow as it has to be with them 7 days for Mon 6th I believe as my the hearing date is the following Mon the 13th July is that right. If I'm wrong maybe I dont need to be in panic mode to get it in the post in the morning?

Bump

Hi Haggis I had MBNA do the Subj Access thing back to me see my posting which had some interesting info from supasnooper about this too http://www.consumeractiongroup.co.uk/forum/mbna/203137-subject-access-mbna-debt.html I submitted what they asked in the end only because I did not want any further stalling tactics they so like to continue with;) but posting #11 by supasnooper made interesting reading

Heres my WS against the SJ application any feedback welcome, I need to see it arrives on Mon 7th July....but concerned it may be too long so any parts you think I should SHORTEN/TAKE OUT/AMEND appreciated. Also I have only made ref to DN & CCA NOT T & C unless you think I should insert something in here as per there MBNA3 (see http://i612.photobucket.com/albums/t...mJudgement.jpg there application relating to 2006 T & C) Why in the 7th paragraph down do they state they are under no obligation to provide a copy of the original so have complied with its obligations? This was the orig application http://i612.photobucket.com/albums/t...g?t=1242733254 & T & C http://i612.photobucket.com/albums/t...g?t=1242750486 To which you will see from the SJ Application "the original agreement would have been pristine & professionally printed. The version exh is a photocopy of such a document. RE MBNA4 They have also not provided me with my full statements going back to 2000 either only back to 2004. Surely they have not complied to CPR31.14 with regards to this? Any wordings I can slot in please? Also do I need to print off the necessary Acts to accompany some of this as mentioned in my mdaw09 etc. Please advise. WITNESS STATEMENT OF XXXXX (Defendant) CLAIM NO XXXXX Exhibits: MDAW01, MDAW02, MDAW03, MDAW04, MDAW05, MDAW06, MDAW 07 etc 3rd July 2009 Re Hearing XX July 2009 at XXXam In the XXXX County Court Claim Number: xxxxx Between: MBNA Europe Bank Limited (Claimant) -And- XXXXXXX (Defendant) I, XXXXX of XXXXXXXXX, being the Defendant, am a litigant in person in this case. 1.I make this Witness Statement in support of my defence against the Claimants claim for summary judgment against me. 2.I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. In this statement I will refer to facts relating to the claimant regarding their failure to follow recognised procedures, practices and protocols during their prosecution of this case and their failure to respond to my lawful requests. 3. There is now produced and shown to me a bundle of documents marked MBNA1. The exhibit MBNA1 contains a copy of the Default Notice served by the claimant. 4. There is now produced and shown to me a bundle of documents marked MBNA2. The exhibit MBNA2 contains a copy of the credit application from served by the claimant. 5. There is now produced and shown to me a bundle of documents marked MBNA3. The exhibit MBNA3 contains a copy of the most recent set of Terms and Conditions. 6. There is now produced and shown to me a bundle of documents marked MBNA4. The exhibit MBNA4 contains copies of statements of account from xxx 2004 to xxxx 2008. 7. There is now produced and shown to me a bundle of documents marked MBNA05 and MBNA6. These exhibits MBNA5/MBNA6 contains copies of letters supplied by the claimant. 8. The respondent does not accept that the applicant has established that there is no compelling reason why there should not be a trial. The applicant has failed to supply any evidence which supports that the claim should be disposed of without a trial. The respondent would seek to draw to the courts attention the following matters. THE CLAIMANTS RESPONSE TO SUMMARY JUDGMENT 9. The applicant/claimant failed to supply the respondent/defendant any documents which the applicant mentioned in their particulars of claim and which were central to the applicants’ case. The respondent asked for the documents, which were pleaded in the claim issued on xxth February 2009 both beforehand on xth February 2009 (exhibit MDAW01) and xxth February 2009 (exhibit MDAW02) respectively that may be used in court to support the claim. The applicant failed to fully supply these documents that are being relied upon, despite my CPR31.14 request dated xxth February 2009 (exhibit MDAW03), that is until xxth May 2009 posted to me from the Court. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence. Default Notice 10. The Default Notice that the claimant relies on and has submitted to the court (MBNA1) is NOT a copy of the original and is an attempt to mislead and confuse both myself and the court. The applicant had supplied a copy of the default notice (exhibit MDAW04), which is related to the claim. I wish to raise an issue, which I would expect to expand upon at trial. The default notice is materially defective, the notice that I have is dated Friday 9th January 2009 was served by post and received on Tuesday 13th January 2009. 11. The Consumer Credit Act 1974 s87 & 88 together with Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (exhibits MDAW05 & MDAW06) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. (2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain- (a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974; (b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and © statements in the form specified in paragraphs 4, 5, 7 [8A] and 9 to 11 of that Schedule 10. At schedule 2 Para 3 of the regulations it states the following: Details of breach of agreement and action required to remedy, or pay compensation for, the breach… 3 a specification of: - (a) the provision of the agreement alleged to have been breached; and (b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either © if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or (d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid. 12. The Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post (exhibit MDAW07) which states: 2. Practice Direction Service of Documents - First and Second Class Mail "With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore. 1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post. 2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:- (a) in the case of first class mail, on the second working day after posting; (b) in the case of second class mail, on the fourth working day after posting. "Working days" are Monday to Friday, excluding any bank holiday. 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. 13. Clearly defined is the fact that the default notice does not comply with the requirements as specified in Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) 3© above; as the notice only gave 10 days for compliance not 14 days as required. 14. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Notice, and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 (exhibit MDAW08) in the Court of Appeal, in this judgment Kennedy LJ states inter alia : This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'. 15. Therefore, it would be the respondents’ position that the applicant/claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective. This would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119) Consumer Credit Agreement 16. The Claimant in this application has produced a document MBNA2 which the Claimant alleges to be the credit card agreement entered into by the parties. It is denied that this document MBNA2 is the agreement entered into by the parties. The document clearly states “PRIORITY REQUEST FORM” and is evidently not an agreement. 17. The agreement is not headed correctly as required by Regulation 2(1) and Schedule I Consumer Credit (Agreements) Regulations 1983 (MBNA2) states: (1) Subject to paragraph (2) below, a heading in one of the following forms of words- (a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974"; (b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974"; © "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or (d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require. (2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words -"Credit Agreement regulated by the Consumer Credit Act 1974". (3) Where the document and a pawn-receipt are combined, the words “and Pawn Receipt," shall be inserted in the heading after the word "Agreement". (4) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word "partly" shall be inserted before "regulated" unless the regulated and unregulated parts of the agreement are clearly separate. (5) Where the credit is being secured on land the words "secured on" followed by the address of the land shall be inserted at the end of the heading. This credit agreement is therefore materially defective. If the agreement and Financial Terms and Conditions are photocopies of the original credit card agreement as the claimant states, they should be displayed as a duplex printed document or on a one face side document. The supplied Financial & Related Conditions, the Prescribed Terms under the Consumer Credit Act 1974 s127(3) (MBNA2), are clearly not related to the credit agreement supplied and do not meet the criteria of being within the four corners of the document. 18. The applicant has served a copy of the agreement (exhibit MBNA2), which its claim is based upon. The claimant clearly states that the agreement relied upon is a photocopy of the signed application form (for simplicity, now further referred to in this document as "the credit agreement" or "the agreement"). The Civil Evidence Act 1995[C38 (s13)] (exhibit MDAW09) states: 13 Interpretation In this Act "civil proceedings" has the meaning given by section 11 and "court" and "rules of court" shall be construed in accordance with that section; "document" means anything in which information of any description is recorded, and "copy", in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly; "hearsay" shall be construed in accordance with section 1(2); "oral evidence" includes evidence which, by reason of a defect of speech or hearing, a person called as a witness gives in writing or by signs; "the original statement", in relation to hearsay evidence, means the underlying statement (if any) by - (a) in the case of evidence of fact, a person having personal knowledge of that fact, or (b) in the case of evidence of opinion, the person whose opinion it is; and "statement" means any representation of fact or opinion, however made. By virtue of the Civil Evidence Act 1995, the credit agreement supplied by the claimant, here onward should be treated as hearsay evidence. 19. The statement made by F A R Bennion, the Draftsman of the Consumer Credit Act 1974 relating to s127 (3) states: Consumer Credit Act 1974 s 127(3) As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed. 167 Justice of the Peace (2003) 773. The courts power of enforcement 20. I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3 which states: Where a claim is based upon a written Agreement: (1) a copy of the contract or documents constituting the Agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing If the court is not minded to strike out the claimant’s statement of case, the defendant respectfully requests that the court orders the claimant to produce documentation in support of it case that complies with the Consumer Credit Act 1974, the Consumer Credit (Agreements) Regulations 1983, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, the Civil Evidence Act 1995 and CPR Practice Direction 16. I have yet to view the original credit agreement or any other original documents that the claimant seeks to rely upon, I am aware that the civil procedure rules makes provision for the original documentation to be made available under practice direction 32. It is clear to me that since it is disputed that the documents which the Claimant seeks to rely upon as the alleged “Credit Agreement” the only way to establish truly if they are indeed part of the same document is to produce the original document before the court. In addition, I am aware that there are many regulations and statutory acts which place a duty upon the Claimant to retain original documentation inter alia- the Money Laundering Regulations, the Companies Act 1985 sections 221 and 222 etc. so it stands to reason that they should be able to bring before the court a copy of the original document Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable. 21. In addition to the points raised I would ask for the court to allow me to amend my original defence as at the time I submitted the defence I did not have in my possession a full compliment of the documents which the claimant has now disclosed. This despite my requests for further information and given that I am a litigant in person there are a number of other issues which have now come to light in view of the claimants disclosure and therefore respectfully request that I be given the opportunity to defend this action. I make this request with the overriding objective in mind as set out with CPR 1. 22. I therefore request that the court do dismiss the applicant's application for summary judgment. I believe that the facts stated in this witness statement are true. Signed My dogs a westie Dated 3rd July 2009

I had a run in with the council tax wanting to spread my payments over 12mths instead of 10mths to help spread the outgoings, they were as hard as nails in not agreeing to this despite sending in my SOA & hubbys redundancy letter as proof. I went to local MP (email yours even) to assist you with your problem. Mine cont the council on my behalf who then have now wrote to me to telephone some bigwig now in order I can have my situation now addressed. It wasnt that I was after c tax benefit or anything. I Hope you get something sorted with a reduction perhaps or the house sold soon.

Hi supasnooper thats brilliant thanks just the sort of examples I was looking for in order I can fine tune them as I got confused with the WS I had started previous stating what the defence was rather than app to SJ as Car2403 had quite rightly said. I can get cracking now & pleased that you have assisted me with this in the absence of Car2403. I hope you both will stay tuned with me if I'm not too much bother so you can check my posting on it when its done...Hope you shed your workload soon Car2403

How are things going for my response needed to the SJ application ....any help greatfully required thanks:oops: