Link Financial County Court Summons

[colin66]

i have received a summons from link re an mbna card i had. i stopped paying this earlier this year due to financial problems.

 

i did get a letter from link last month but as i was moving it went missing so i did not get a chance to send them a cca request and this turns up on my doorstep.

 

the particulars of the claim are.

 

the Claimant claims the whole balance due and payable under an agreement and or associated agreements made with the defendant in writing and dated 25/04/1996 and assigned to the claimant. the defendant has failed to make payment as required by the agreement and to comply with a default notice or notices served by the claimant and/or assigner.

 

 

any help would be appreciated

 

thanks

Colin

[Guest Jules_69]

Hi Colin

 

First things first you need to send a acknowledgement of service to make sure you have the full 28 days before entering a defence/offer to pay.

 

Do you have your statements on this account ? If not write to link/mbna and ask for a full breakdown on the account.

 

If there are charges included in the amount they are claiming - which there will be late payment charges from when you stopped paying - you can defend those amounts, make an admission on the rest, and submit a full financial statement with an Offer to pay to the court.

 

But firstly get it acknowldged with intent to defend (it doesnt matter if you then change this to an admission just buys you the time)

 

And get your statements and work out the charges amounts.

 

Hope that helps a bit...just yell if you need anything.

 

Jules

x

[pt2537]

right then, firstly, most important

 

send Link or who evers name is listed on the summons this

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with MBNA.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

 

 

 

this is a disclosure request,under the civil procedure rules you are entitled to copies of all the documents they are reliant upon to allow you to prepare your defence

 

you MUST acknowledge service and if you want to defend,personally i would defend all at this stage but this is ultimately your decision

 

we can help you with your defence so dont worry there but you need to get the disclosure request off asap and send it by Special Delivery, which guarantees next day delivery. DO NOT use any other means of postage

 

if you need any more info just shout

regards

paul

[colin66]

thanks for that pt that has helped me

 

i have submitted a AOS online.

 

i have also sent the letter specail delivery to link today.

 

do i now just wait for the reply?

[colin66]

do I need to put the account number on the letter to link?

[pt2537]

ok well they have 14 days to supply the info you have requested from tomorrow, when does your defence need to be submitted?

 

basically we need to give them some time to supply the info requested, if they havenot supplied this by the time you get near to the deadline for submitting the documents then we can file a holding defence based upon their failure to supply documents under the CPR so you have been unable to submit a full defence.

 

it wont look favorably on them from the judges point of view im sure so its a waiting game but we must keep one eye on the deadline for the defence

 

regards

paul

[pt2537]

yes it would be helpful to include all the info you can on the letter so the account number would be a help as well as the court number but clearly mark it as acc no

 

regards

paul

[colin66]

the issue date was 22 November so i make that i have 28 days from today is that correct?

 

i am unable to find the account number so i will have to leave that but i have put the claim number on it.

 

thanks for all your help so far paul

 

 

colin

[Curlyben]

Edit as Paul beat me to it.

The time limts are

service 28/11

Acknowledgement - 14 days after service - 12/12

Defence - 28 days after service - 26/12

[tomterm8]

Don't forget to take account of any of the odd holidays the court has. I normally suggest people ring the court and confirm the deadlines.

[colin66]

i have still not heard anything from link re the letter i sent them.

 

what is my next move?

 

cheers

colin

[colin66]

any advice folks.

 

cheers

colin

[pt2537]

Colin, just to recap you have received nothing in reply to the CPR letter?

 

have you at anytime requested a copy of your credit agreement under the CCA ?

 

do you have proof of delivery for the CPR letter i posted above?

 

as soon as i get an answer to this i can post a defence for you to use, the usual rules apply, i am not a qualified lawyer and anything i offer is advisory only, it is your decision if you use it or not

 

regards

paul

[colin66]

hi paul

 

i have received nothing in reply to that letter i sent.

 

i have not requested a copy of the credit agreement.

 

i have the specail delivery slip.

 

hope that helps.

 

thanks for all your help.

 

colin

[pt2537]

ok colin in working on something for you, bear with me you may have to make a trip to the post office this afternoon

[pt2537]

In the xxxxxxxx County Court

 

Claim number

 

 

 

 

 

Between

 

 

xxxxxxxxxxx- Claimant

 

 

and

 

 

 

xxxxxxxxxxxxx - Defendant

 

 

 

 

Defence

 

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant’s claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

5. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

The Request for disclosure under CPR

 

6. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on xx/xx/2007 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

7. This request was sent via royal mail special deliever document number xx xxxxxxxxxx xx and was received by the claimant on the xx/xx/2007 and signed for by xxxxxxxxxxxxx

 

8. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested especially since I am a litigant in person with very limited resources.

 

The Credit Agreement

 

9. To be able to succeed in this action, I note the claimant must have in their possession a copy of the credit agreement between the original creditor and debtor, which is regulated by the consumer credit act 1974. If the claimant does not have such documents then this action cannot proceed as s127 (3) Consumer Credit Act 1974 would preclude the court from making an enforcement order without production of the document or a legible copy thereof

 

 

10. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

 

11. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 10 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

12. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

Default notice required by s87 CCA 1974

 

13. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

 

14. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

15. Notwithstanding point 13, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

16. 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 a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Notice of Assignment

 

17. In addition, I note that I have not received any Notice of Assignment required under the Law of Property Act 1925. For the claimant to have a right to the chose in action I must be served with a Notice of Assignment in writing as per s196 Law of Property Act 1925 if it is to comply with section 136(1) of the said act, this notice must be accurate and contain inter alia the accurate date of assignment as per W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169

 

18. The claimant is therefore put to strict proof that they have a legal right to this action in their own name as they are not the original creditor and further more the claimant is put to strict proof that a valid notice of assignment was served compliant with the Law of Property Act 1925

 

Conclusion

 

19. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

20. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, offers no reasonable prospect of success prima facie, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

21. Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

22. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

 

 

23. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I XXXXXXXX, believe the above statement to be true and factual

 

 

Signed …………………

 

Date

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

There you go, any questions or anything you are unsure of?

[pt2537]

and just to add, amend the parts which are xxxxxxxxx out and send it off to the court via special delivery ASAP

 

if you need anything else just shout

[colin66]

i just send that, do i need to send the specail deliver slip or the letter i sent to lin at this stage..

 

i am not quite with it today im afraid so this might sound a bit thick but under No 1 it says i my name of (should i put my address)

 

many thanks for this paul a great help.

 

colin

[pt2537]

HI Colin, No worries mate, this can seem a little daunting so dont worry,

 

 

you would put " i colin..... of 12 a street,a town,a city " if you get my drift,

 

you have got it right as you say

 

with regards the special delivery document, i would hold on to that for now, keep it safe, however you should type in the rec slip number on the bottom right hand corner, it should be something like ZX 3445 5555 4GB blahblahblah,this should be entered into point 7

 

basically anywhere there is a xxxxxxxxxx, this requires your personal info entering,

 

if you need any help let me know

 

regards

paul

[shadygiz]

fantastic letter and a great incitive read PT mate

 

i only hope you are around when/if my ruthbridge stuff comes to court

[pt2537]

Youre Welcome Shady

 

im not going anywhere for a while so im sure i will be about

 

you need to make sure that you have your own thread going for this, and if you get stuck then by all means send us a PM and ask me to look in and i will gladly look in on your thread and post a reply

 

 

Regards

paul

[colin66]

ok done all that and posted it special delivery.

 

many thanks paul.

 

colin

[pt2537]

good luck colin,

 

let us know when you hear anything from the court as things can start to get tighter with regards to time scales so let us know as soon as you hear

 

regards

paul

[colin66]

OK got a letter from link saying they would send off for the credit agreement etc,

 

also got a questionnaire from the court asking me to fill it in...need to do this by 21 February not sure what to put on this..

[pt2537]

Hi Colin

 

What form is it youve got

 

Is it a N150 or N149?