Now received the clean copy of the re-amended PoC, along with all attachments..... lots of work to do. Cheers Michael

Ok, let's try that again..... Now received the following order from the court, along with copy of Mortimer Clarke's letter to the court that prompted it: I think they've got a bloody nerve to be honest - and the Court has by allowing them to get away with it So, I'm reckon I'm going to knock up a cracking Defence - anyone got any views on the enforceability (or otherwise) of the agreement I added in this post? Cheers Michael

Trying again with resized images

Subbing, as I have a very very very similar situation going on over here: http://www.consumeractiongroup.co.uk/forum/legal-issues/137898-mce-portfolio.html Cheers Michael

Excellent - thanks for that Nicklea, top stuff Cheers Michael

Hi Chris Thanks for the warning, my Advocate friend Both their Counsel and the DJ were convinced that the penalty charges/inaccurate default notice, s78 default and the executed by "signature" were the arguments that required the case to be Fast Track - the fact that the original Counsel at the Allocation Hearing had made an error in consenting to SCT didn't help. I'm not spectacularly over-worried about their costs - in the first instance, if I get to thinking I'll lose, I'll be fighting for a consent/Tomlin order on this rather than a CCJ since they shouldn't have brought the case due to their s78 default. Secondly, if I lose, this case may be the one that makes a decision to go bankrupt more of a reality than it currently is (fighting a few other issues too!)... Cheers Michael

Received the order from the court now: Also enclosed was the N170 pre-trial checklist for completion & return by 28th October... Hmmm, seems I've got a bit of work to do! Cheers Michael

It's Marcan Shipping (London) Ltd v Kefalas and another [2007] EWCA Civ 463. See paras 34-36 - I'm thinking that while it may be a good idea, there's always a defence to strike out under an unless order, if it's the first breach. Also, it's worth noting that it's apparently not appropriate for the party relying on the unless order to seek that it is activated (see 34A)..... Cheers Michael

Continued.... Here's the 2nd Deed of Assignment (no schedule attached, so no proof the account was included) - NB, the blankings out have been done by MCE/Mortimer Clarke: Here's the Notice of Assignment: Finally, here's their nastygram threat...: All interesting stuff - don't think I'll be amending my defence as yet, but would appreciate comments Cheers Michael

Received the following letter from Mortimer Clarke: ROTFLMFAO at the "deemed served" bit - they obviously haven't read the Law of Property Act! Anyhow, here's the agreement (only 1 page, no Ts&Cs, no cancellation notice): Here's the default notice (note, the "agreement date" is incorrect, and my postcode is also incorrect): Here's the "notice of balance outstanding": Here's the statement (2 pages), "referance" [sic] blanked out - isn't it strange how a payment is due on 01/02/08, well after the account has been "assigned"?: Here's the 1st Deed of Assignment (no schedule attached, so no proof the account was included) - NB, the blankings out have been done by MCE/Mortimer Clarke: Apparently I need to split my post at this point, due to the images included... Cheers Michael

Definitely interested Dave :) Cheers Michael

Aaaargh! /me stamps feet impatiently Cheers Michael

Ditto - I can't wait to see them in court Cheers Michael

Hi all I'm about to launch a claim against LBL for the return of letter charges. Whilst I'm doing so, I thought I would add a request for the Judge to make a ruling on whether the agreement is an "extortionate credit bargain" (CCA1974), or alternatively if there's an unfair relationship (CCA2006). I've also seen references to the agreement being unenforceable, and/or the Bill of Sale being incorrect. Has anyone got any pointers to help me draft my PoC please? TIA Cheers Michael

Went to court this lunchtime and filed the AQ, while I was there, I asked if the Claimant had filed theirs and was told that they hadn't as yet - deadline is today, so if nothing from them by the middle of the week, the file will be up with the DJ for review. Interesting.... Cheers Michael

Well, am submitting a "standard" N149 today, as I couldn't think of any directions that wouldn't impact on hearing the case - submitting draft directions will only lead to an allocation hearing and afford them the opportunity to produce docs, more time.... I'd rather have a hearing set and tear them apart in that Cheers Michael

If it's any help to you, I have a claim ongoing with MCE Portfolio, who are using Marlins to collect and Mortimer Clarke as solicitors: http://www.consumeractiongroup.co.uk/forum/legal-issues/137898-mce-portfolio.html It seems they're playing the same game with your docs & proof as in my case (though I haven't done the CPR18 request). Anyway, my defence is on the thread if you want to use any of it Cheers Michael

Hmmm, *very* mysterious! I've reported your post to bring it to the attention of the site team matey... Hope it's good news Cheers Michael

Indeed Oh I dunno, it sort of takes the pressure off me a little - after all, I don't have a hearing to prepare for in 2 weeks now - though there will be several deadlines to meet throughout the next 6 months. Absolutely - I did keep on with that point in the hearing, but it didn't really get acknowledged (apart from counsel admitting that the Bank were in the wrong, etc.. etc..). I did manage to get a few comments in with counsel when we were outside though Cheers Michael

Good luck for tomorrow Chris - hope it goes well, can't wait to read your update. Cheers Michael

Well....... Firstly, thanks for the good luck wishes everyone Taken me a little while to typing this as it wasn't the best result today, but I think I gave it the best shot I could. The DJ was really pretty reasonable and was quite supportive - plus, he didn't just insist that it was money lent & had to be repaid! The upshot is that the case has been reinstated. Whilst the DJ was most scornful of the Bank's errors in agreeing to the "unless" order and SCT allocation, then not complying with the order and now requesting reallocation, there's no real prejudice been caused to me (they've not even claimed interest, which could've been used as a prejudice argument) and no prevention of a fair trial. He did say that the interests of justice provide that the case should be reinstated. TBH, I couldn't really argue against that too much. There's also case law that says that an "unless" order, without previous order breaches, is a disproportionate sanction (I'll dig out the case from my notes tomorrow) - I pointed out the Bank's failure to comply with my s78 request actually prevented them from commencing this enforecement action, but as that wasn't a breach of a court order, it couldn't be taken into account at the application hearing and was a matter for trial. The case has also been reallocated to Fast Track, entirely down to the arguments to be presented and the length of trial time it'll require (it took us well over an hour just to present arguments just for this application, and an hour was allocated to this hearing) - the DJ did point out that it could almost be a multi-track case! However, costs to date are to be ruled by the SCT, so that's a bit of a bonus....(and the DJ was quite happy to let counsel know that they weren't in a position to object due to their previous errors, etc...) The DJ was keen to get everything "compartmentalised" into major issues for the trial, so we went through those - he seemed to enjoy the penalty charges argument, and said that the argument about the penalty charges invalidating the default notice (which, I interjected, couldn't be produced!) was an interesting one. Counsel said that as it was only £75 involved, it was likely a "de minimis" (sp?) issue - can't wait to get my teeth into that. Anyhoo, the Draft Order submitted by the Bank has been amended somewhat (that went a little too quickly for my notetaking), the re-amended PoCs will be served again with their amendment for the default notice - my re-amended defence has to be served by the end of June. We agreed further timelines for various aspects, and the case will be listed for a November-ish date. I'll post all that up if I can read my notes, or the actual order when it comes. I think their counsel knows that this isn't going to be an easy ride for him, and was most impressed at the arguments & paperwork supplied so far At one point, the DJ noted to the Bank's counsel (who will most likely be their representative at trial) that I was a Litigant in Person (not sure why, I'd sort of lost track at that moment), and counsel replied with "A very able one too, sir" Oh, whilst we were outside the courtroom waiting for the DJ to consider his order, counsel did let it slip that he didn't think the original agreement would be able to be produced - we had a quick chat about CPR32 13.1 and he said that the Civil Evidence rules allowed a photocopy if the original couldn't be produced. Of course, I'll make a big fuss that with the Bank's errors to date, the original must be produced to determine that the correct Ts&Cs are referred to - a point I made several times during the hearing, just to emphasise it We also had quite an intersting chat about the consumer revolution and how the banks just aren't used to the consumers fighting back All in all, not too bad an experience - even if it wasn't the result I wanted and it went on for nearly 2hours in total. I think I've left a good impression on both the DJ and counsel Cheers Michael

Cool, thanks Nick Cheers Michael

Thanks CB - will post an update tonight when I'm home.... Cheers Michael

Thanks for pointing that one out - it's actually CPR32 13.1 that I was meaning: PRACTICE DIRECTION – type="start" timestamp="1122646426703" EVIDENCEtype="end" timestamp="1122646426703" - This Practice Direction supplements CPR Part 32 That doesn't seem to imply it being at disclosure stage though? Cheers Michael

Ok, so I've put together some "key points" notes for my ref in the Application Hearing this afternoon @ 2pm. Know it's short notice, but would be grateful of any comments on them & suggestions... Key Points: 1. Claimant’s counsel agreed to the “unless” order – this was requested due to Claimant’s failure to deal with s78 request since 6th February 2007, not simply because it was included in the Draft Order attached to the AQ as alleged in para 2 of the Claimant’s original witness statement 2. para 7g - The Defendant has been prejudiced by the whole claim as the Claimant was not at liberty to enforce the alleged agreement under s78(6) Consumer Credit Act (1974), which states: (6) 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; and (b) if the default continues for one month he commits an offence. 3. The request under s78(1) was made on 6th February 2007, and the Defendant objects to para 7c of the original witness statement –implication of “avoiding paying debts” and referring to compliance under s78(1) “in a rapid manner” 4. s78(1) states: (1) The creditor under a regulated agreement for running-account 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 state of the account, and (b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and © the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor. 5. The Claimant has still not fulfilled this request as no details of cancellation rights have been supplied and it is presumed that therefore the Claimant has not complied with s64 Consumer Credit Act (1974). The agreement is therefore unenforceable s127(4) Consumer Credit Act (1974) states: (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. 6. Claimant’s counsel agreed to SCT – para 11 – not Defendant’s problem if Claimant cannot instruct counsel properly. 7. The issues to be dealt with are not complex as alleged by the Claimant – the issues are simple and thus: 7.1 Has the Claimant complied with the law? 7.2 Is there an executed enforceable agreement containing all the prescribed terms? 7.3 Can the original agreement be produced in accordance with CPR13.1? 7.4 Is the default notice valid? 7.5 Were cancellation rights served properly? 7.6 Does the amount outstanding & defaulted contain penalty charges? 8. Penalty charges – the Claimant’s argument at paras 11c/d is moot - Office of Fair Trading’s statement of 5th April 2006 concerning default charges in credit card contracts and avers that these charges represent a penalty and are therefore unrecoverable at Common Law. 9. No default notice – only a “reproduction” – Claimant seems to infer from their supplementary witness statement of 16th May 2008, that as they are a “major high street bank”, they could not possibly make inaccurate submissions or make a mistake. This isn’t true, as we have seen from their admissions regarding the terms & conditions, allocation, etc… 10. s87 states: 87 Need for default notice (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,— (a) to terminate the agreement, or (b) to demand earlier payment of any sum, or © to recover possession of any goods or land, or (d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or (e) to enforce any security. 11. s88 Consumer Credit Act (1974) states: (1) The default notice must be in the prescribed form and specify— (a) the nature of the alleged breach; (b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken; © if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid. (2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed. (3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it. (4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it. (5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid. 12. Settled law regarding failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but allow the Defendant to submit a counterclaim for damages (Kpohraror v Woolwich Building Society [1996] 4 All ER 119) 13. In lieu of submitting a counterclaim for damages, the Defendant would respectfully request the Court to consider awarding substantial damages to the Defendant as the Claimant has issued an inaccurate Default Notice. In kpohraror v woolwich building society [1996] C.L.C. 510 it was decided that the amount of the damages should be the amount of the cheque that was dishonoured (the amount of the default) plus substantial damage to reputation of £1,000. 14. The Claimant can’t even substantiate the default notice as it is only a reproduction Cheers Michael