Arrow/copes claimform - MBNA card 'debt' **DISC'D**

[42man]

IMO they are stuffed Libra....

[42man]

And if they discontinue, you could hit them with a wasted costs order !!

[42man]

And if they discontinue, you could hit them with a wasted costs order !!

[libra007]

^ lets see what happens next.

[libra007]

its well over the date they need to serve the documents, will call the court now check out the status.

[Docman]

its well over the date they need to serve the documents, will call the court now check out the status.

 

Good idea but I suggest you ask the court manager to check for faxed documents as well. This mob were due to file by 4 pm or be struck out on my case. Two days after the deadline, I rang the court since I had not received anything. Nothing had been received at court and so the court guy told me he was arranging to have the action struck out. Two days later I received a package from AG with copy docs etc.

 

When I rang the court, I was told AG had faxed their statement at 3.30 pm on the day of the deadline so the court were accepting it even though the documents were not attached to the fax. The fax had been 'mis-filed' when I first called them but it was linked up with the file once the court received the same package I got.

 

Talk about one rule for the legal firms and one rule for the rest of us.

[libra007]

Just rang the court, they said i should expect some paper work from the claimant. So that means they have filed some documents to the court.

what would be my line of action now? will update about the documents once I see them.

[Docman]

Did the court actually confirm that AG have filed the required documents or have they just had a message that the docs are on the way?

[libra007]

Hi again, was away for 6 weeks from the country. in the mean time i received some documents from copes posted on the date required by cout to be with me,

 

1. statements are missing from may 05 - july 06 , jun 06 to july 04 present account started in

 

 

2. assignment is not the one i received, contents are different so as the default notice has wrong contents ie company and dates

copes stamp says its re produced copy of the original

 

3. agreement looked is tear off from the application form on pre printed form addressed to me.

 

then strangely i received court letter saying the claimant serving date is extended to 2 nd of april in stead of 12 march originally set.

 

court didnt mention the date of my revised defence which was set around 19 days after the copes serving me the required documents, i would assume i will get the submission date changed accordingly will find from the court tomorrow.

 

a) copy of original signed agreement and any documetns reffered

b) a copy of default notice.

c) a copy of notice of assignment

d) copy of any other ducementation

 

 

now in light of the above, could any of you please let me know how i go about this?

[Docman]

I suggest you should check with the court to check whether you need to file an amended defence or not.

[libra007]

tried ringing court last week wasnt that successful, today got through and they said there isnt a specific date mentioned in the last court order to file amended defence, if i want to file i should do it quickly as there is no hearing set for this at present.

 

what you guys suggest now, shall i file amended defence? if yes on what basis?

 

on basis of charges, CCA being application form, or assigment letter being not original but re produced with wrong info on it.? or all of these.

 

thanks

[Docman]

Hi Libra

 

I'm not sure whether you should send in an amended defence yet. Just to confirm, Arrow were not required to amend their Particulars of Claim? So you just have the original ones, is that correct? Can you type up what was in the original POC?

 

Can you post up what they have now files at court minus your personal identifying details?

[libra007]

Hi Libra

 

I'm not sure whether you should send in an amended defence yet. Just to confirm, Arrow were not required to amend their Particulars of Claim? So you just have the original ones, is that correct? Can you type up what was in the original POC?

 

Can you post up what they have now files at court minus your personal identifying details?

 

here are few details, in poc the claimed it was loan which isnt, the letter of assignment is not copy of the original but reproduced with wrong dates and other details. so please advise

 

 

 

 

 

 

 

 

 

 

 

[tiokim]

What about the default notice? I think you should amend your defence. That agreement looks totally unenforceable and I think is time to highlight it in your defence with all law cases that support you.

[Docman]

Libra

 

I agree with tiokim. What has happended to the Default Notice? There is a lot that can be done to defend this claim but Cope's haven't supplied what they were ordered to supply? Or have you got them but not posted?

[libra007]

hi, there is a default notice, its also reproduced with wrong info and date, and it doesnt have any stamp on it from copes. there also statments and some generated statements, all of them carry charges ie late and over limit etc

 

 

what should i base on amended defence? wrong CCA, default, letter for assignment or charges? or all

[Docman]

I suggest defending on ALL of (a) wrong agreement (b) ineffective DN and (c ) Notice of Assignment and COUNTERCLAIM for all the unlawful charges.

[libra007]

A year later,

court just remembered that this isnt going anywhere so they have set some deadlines now for both claimant and defendant.

 

i have to file a amended defence in 2 days time and if the claimant pays hearing fee, there will be hearing in may.

 

as suggested by docman i have started to write on the lines of the above, please input your suggestions so i have a solid one but not too complex.

 

Thanks

 

Attaching defence for help of CAGers

 

In the xxx County Court

Claim number xxxxx

 

Between

 

Arrow Global LLC - Claimant

 

and

 

LIBRA- Defendant

 

Defence

 

 

1. I xxxxx, the defendant in this action and make the following statement as my defence to the claim made by Arrow Global LLC
   

 

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

 

1. In response to point 1 and 2 of POC, Defendant denies ever having “a loan” agreement with MBNA.
   
2. 
   The Request for Disclosure
   

 

1. Further to the case, on xx/xx//xx I requested 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 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 list of charges applied to the account.
   

 

1. I xxxxx, the defendant in this action and make the following statement as my defence to the claim made by Arrow Global LLC
   

 

1. The claimant ignored my initial request under the Civil Procedure Rules, and I did not receive any such documentation requested until as a complaince to Court Order made on xxxx , and time extensions orders on xx and xx to provide requested information.
   

 

1. The Credit Agreement document supplied does not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement.
   

 

1. The courts attention is drawn to the fact the documentation which the claimant claims to be relying upon to bring this action may not 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) 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.

 

1. The court’s attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 13 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.
   

 

1. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document
   
2. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299
   "[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated
   consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting
   the provisions of the two schedules the Judge said:
    
   "33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which
   are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."
   

 

1. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order
   

 

1. Notwithstanding points 4 and 5, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974
   

 

1. The claimant is therefore put to strict proof that such a compliant document exists.
   

 

1. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal
   at para 26
   "In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"
    
   The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default.
   

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.
   

 

1. The Reproduced copy of Default notice supplied by the Claimant is dated xxx 2007 along with Notice of Assignment.
   

 

1. I have also received a letter from a debt collection agency on behalf of Arrow Global dated 1xxx well before the supplied Default Noticed and Notice of assignment. (Exhibit A)
   

 

1. In light of the points 16, 17, It is also submitted that A demand or notice of debt collection cant not be made by any creditor before a debt is assigned to a creditor. This also make the supplied Default Notice and Notice of Assignment from the Claimant suspicious due to fact that clear conflict of date and time mentioned.
   

 

1. It is also denied that such default Notice has ever been served with details mentioned in the reproduced document and put claimant to strict proof thereof.
   

 

1. Default Notice also include Company called Transcom Worldwide LTD, Defendant deny any correspondence received or sent by this company on behalf of Defendant.
   

 

1. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].
   The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169
   
2. The 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.
   
3. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).
   
4. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:
    
   Section 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.
   
5. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:
    
   Section 88. Contents and effect of Default Notice
    
   (1) The Default Notice must be in the prescribed form…
   

 

1. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.
   

 

1. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.
   
2. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.
   
3. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.
   
4. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.
   
5. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.
   
6. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.)
    
   Conclusion
   
7. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.
   
8. The Claimant has failed to issue Notice of Assignment to comply with section 136(1) of the Law of Property Act 1925.
   

 

1. The claimant has failed to issue a valid Default Notice as required under s. 87 Consumer Credit Act 1974 thus making any termination of the agreement unlawful.
   
2. The Claimant demanded for payment on its behalf before any Notice of Assignment and Default notice served without first being the owner of the debt. Letter received on xxx. The claimant provided reproduced Default Notice and Notice of Assignment dated xxxx.
   

 

1. The claimant is laying claim to charges for which they have no valid legal claim.
   
2. The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons
    
   Statement of Truth
    
   I, believe the above statement to be true and factual
    
   Signed .....................
    
   DATE
   

Edited April 24, 2010 by libra007

[libra007]

court due date fall on good friday, so in haste i faxed amended defence to court and arrow solicitors on thursday but at 5 o clock, i also posted the defence to court and arrow.

 

now i got letter from copes saying cause they received 4 days later they will have considerable delay in making their obligation ie reply to amended defence. and asked me to explain what was the reason.

 

any help on this one appreciated. thanks

[Docman]

Sounds like they are fishing for an excuse to use in court.

 

I suggest you respond by saying that xx DATE , the court ordered that an amended defence be filed with the court by xx march 2010. You did so and sent them a copy by first class post. You should also file a Certificate of Service' [form N215] with the court. This is form is on the court service website at Her Majesty's Courts Service -Forms and Guidance

[libra007]

Thanks Docman, sent a letter to Copes. about this certificate of service am not sure as if i use this date of service will fall on next working day which would be 3 days after cause of the next business day thing. will it be ok. whats the rule regarding the if the due date fall on a bank holiday?

[libra007]

they didnt reply to my defence by the required date +5, received notice of discontinuance from Copes.

 

this is the 4th claim from different companies i got to this end.

what can be done after this towards these lunatic practice of copes, cohens and morgans.