StayingCalm vs Abbey with no CCA**WON**

[citizenB]

Together with;- Interest pursuant to s69 County Courts Act 19 at the rate of 260.72 pence per day to the date of Judgment or sooner payment.

 

I understood they werent allowed to claim for this. I am sure I have seen a post by pt2537 that says not. I will go and have a look.

 

I knew I had seen it somewhere.

 

 

PT has mentioned this on quite a few threads. They are NOT allowed to add s69 interest to a claim based on a regulated agreement.

 

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) - Statute Law Database

 

Section 2 (3)

Edited September 11, 2008 by citizenB

[StayingCalm]

Hi citizenB

 

Yes I remember seeing that on pt2537 posts aswell. Not quite sure what the implications are though.

 

I think x20 is working on my statement now so will wait and see what he comes up with. Just remembered there is approx £500 of charges include in the default balance.

 

Getting nervous now wondering if Restons will Discontinue!!

 

sc

[citizenB]

 

Getting nervous now wondering if Restons will Discontinue!!

 

sc

 

Lets hope so

[The GodMother]

SC

 

good luck with all this let just hope a lovely lett lands on your mat tomorrow.

[StayingCalm]

Well our post often does not arrive until midday or even later sometimes, so I phoned the local sorting office at 6am and arranged for them to keep it there after sorting so that I could pick it up. Just got back now and Nothing from Restons!!

 

As they have now got my e.mail address I suppose they can still reply by e.mail and will probably keep me waiting until the midday deadline.

[bazaar]

Just a note

#Is it worth changing the details as 'My Account' to Alledged account, because after all, they dont have a CCA, maybe minor nit picking but I thought it worth mentioning.

Good luck

[surfaceagentx20]

A good job well done SC!

 

I've made a few tidy ups and adjustments, but essentially the statement has what it needs. Here's the versino after tidying etc:

 

 

I, (StayingCalm) OF (ADDRESS)

STATE AS FOLLOWS

 

1 I am the Defendant.

 

2 In the course of this witnessstatement I shall refer to the existence of documents, true copies of which are exhibited hereto at exhibit (witness initials 1)

 

3 On 25th April 2008 the Claimant commenced this case in which the Claimant seeks to enforce certain provisions of an agreement regulated by The Consumer Credit Act 1974 (The Act) for payment of the sum of £11,921.30, which sum includes interest at 8% per annum from 14/04/08, the day on which the Claimant terminated the agreement.

 

4 On 26th February 2008, during the currency of the agreement, I delivered to the Claimant a request made pursuant to the provisions of section 78(1) of The Act. A copy of my request is now shown and produced at page (page number) of my exhibit (witness initials 1).

 

5 On 26th February 2008 I also delivered to the Claimant a request for all the data relating to my account made pursuant to Section 7 of the Data Protection Act 1998. A copy of my request is now shown and produced at page (page number) of my exhibit (witness initials 1).

 

6 On 17th March 2008 I wrote to the Claimant setting out that they had failed to comply with my statutory request made pursuant to The Act (Exhibit xxx)

 

7 On 19th March 2008 the Claimant replied to my subject access request made under the Data Protection Act 1998 stating that they did not retain the signed credit agreement for my account, they did supply some information but not sufficient to be considered compliant with the S7 Data Subject Access Request. (Exhibit xxx)

 

8 On the 26th March 2008 I received a document purporting to be a default notice. The document is not compliant with the requirements of section 88 The Act or Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 and as a result has no effect in law. (Exhibit xxxx)

 

9 On or about 28 March 2008 I received a letter dated 26th March 2008 from the Claimant in reply to my complaint letter (referred to in point 6). A full response was promised by 15 April, but no mention was made of my request under section 78(1) of the Act. (Exhibit xxxx)

 

10 On the 15 April 2008 I received a letter from Reston’s Solicitors seeking to enforce the agreement by demanding money with a threat of court proceedings which I found rather bizarre and offensive since the Claimant had still not complied with my request under section 78(1) of The Act. (Exhibit xxxx)

 

11 I did not reply to the letter in point 10 because I had been informed earlier by the Claimant to expect a full response from the Claimant by around this time. I considered it better to await receipt of the full response which I anticipated would arrive very soon indeed.

 

12 On the 19 April 2008 I received a further letter regarding the matter from the Claimant. The letter informed me that I would recieve their full response by 14 May 2008. (Exhibit xxxx). Accordingly, I patiently awaited receipt of the full response by mid-May.

 

13 On the 25th April 2008 I received this claim, which was deeply upsetting as the claimant or its agents had totally ignored my correspondence and forged ahead with litigation when it was unnecessary and at a time when, according to their promise, they would provide a full response by 14 May. Additionally, the claimant was restrained from enforcing the agreement until my section 78(1) request had been fully complied with.

 

14 It must be noted that at the date of this statement, the Claimant has still not supplied a copy of the credit agreement as requested in point 8 or complied in any resepct with its obligations under section 78 of the Act.

 

15 Furthermore the claimant ignored my dispute and pursued an active campaign of harassment against me, they contacted or tried to contact me by telephone on a great number of occasions over a period of several months, usually several times a day and also continued to contact me in writing. I attach a sample of three of these letters (Exhibits: xxx,xxx,xxx) This is in direct contravention of the Office of Fair Trading's Guidelines on debt collection

 

16 At trial I will assert by reference to the documents and by submissions to the court as to fact and law, that the documents relied upon by the Claimant are inadequate for the purpose of demonstrating that at the date of the commencement of this case the Claimant was not entitled to any of the relief sought.

 

I BELIEVE THAT THE CONTENTS OF THIS STATEMENT ARE TRUE.

 

(dated)

(Signed)

 

x20

[citizenB]

**blush** thank you for the click:)

[StayingCalm]

x20 Thanks so much!!!

 

Please could you advise if I have to get a copy to the court as well by 4pm?

[surfaceagentx20]

I've checked the directions order you posted. It says 'serve' with nothing about filing. I would not have expected the order to require filing in any case.

 

x20

[The GodMother]

althought it might be a good idea to make sure the courts have a copy even if they get it tomorrow or monday

[StayingCalm]

Restons did not discontinue

 

we have exchanged

 

must go out now will post details later

[The GodMother]

kk have fun

[citizenB]

Restons did not discontinue

 

we have exchanged

 

must go out now will post details later

 

Oh.............. bother !

[The GodMother]

well they had ther only chance

[StayingCalm]

Hi all

 

GM what is kk??

 

 

Well this is the statement I received

 

 

 

 

WITNESS STATEMENT

I xxxxx xxxxx of MBNA Bank Ltd of address

Will say as follows

1. I am employed by the claimant as a litigation specialist and I am duly authorised to make this statement on behalf of the claimant which is made in accordance with the requirements of the Order dated 5ht August 2008.

2. The claim is for the sum of £11895.23 together with interest and arises from the outstanding balance due under an Abbey Rewards Card set up in March 1998. This card was acquired by MBNA. The account is in the name of the Defendant and he is solely liable although there is another authorised user on the card.

3. I have seen the defence filed by the defendant. It comprises numerous pages (and includes various exhibits). It quotes numerous sections from the CCAct legislation and regulations made under it. It also includes quotations from various law authorities. In my submission the document does not amount to a clear succinct defence to this claim. However, I cannot see any statement made by Mr SC in the defence in which he denies holding the credit card facility, denies using the card nor that there is an outstanding balance under it.

4. In view of the outstanding balance on this account and the fact that the claimants correspondence to the defendant had not resulted in a satisfactory agreed repayment schedule, on 25 March 2008 a Default Notice was issued which required a payment of £1475.80 representing the arrears on the account by 6 April 2008. The defendant failed to make this payment. A copy of the default notice is attached to this statement and marked xx1.

5. In line with the standard procedure of the claimant the default notice was placed in the first class post on the date it was issued ie 25 March 2008. I note from the defence that Mr SC accepts receiving the Default notice on the following day, ie 26 March 2008. I confirm that the defendant has failed to make the payment of the arrears of £1478.80.

6. Proceedings were issued by the claimant’s solicitors in April 2008 claiming a balance of £11895.23. Attached to this statement and marked xx2 are statements of account from December 2004 to March 2008 which demonstrates how the outstanding balance of £11895.23 has been calculated.

7. I note that at paragraphs 2 & 3 of the defence Mr SC claims the POC did not disclose a cause of action and were vague. The proceedings were issued through the County Court Bulk Centre. This method only allows the claimant to insert brief details of the claim. It is a common procedure adopted by banks and other financial institutions. There can be no doubt that MR SC was fully aware of the banks claim in this action in view of the correspondence sent beforehand by the bank. Also the contents and length of his defence do not suggest that he has been in any way prejudiced by the fact that the proceedings were issued through the county court bulk centre.

8. I note that at various points in the defence Mr SC appears to suggest that the bank is under an obligation to provide an exact copy of the credit agreement and indeed at paragraph 44 requests the court for an order that the bank ‘produce the original signed agreement’. I am not able to provide a copy of the original signed agreement. I do not accept that under the terms of the CCA legislation or the regulations made under it the bank has to provide a copy of the original signed agreement ie a copy bearing the signatures of both parties. Attached to this Witness statement at xx3 is a ‘pro-forma’ of the credit agreement which would have been in the form signed by the defendant. The footer to the document ends with ‘Nov 97’. As explained earlier the particular facility agreed with Mr SC was set up in March 1998. The bank does not accept that it is in breach of any part of the CCA or regulations made under it and therefore the agreement contained at xx3 complies with all requisite terms.

9. At paragraph 20 of the defence Mr SC alleges that the claimant ‘pursued an active campaign of harassment against me…’. No specific details of the claimants conduct are given nor as a matter of law how they amount to harassment.

10. At paragraphs 22 to 29 of the defence Mr SC makes various comments about the maintenance of records by the claimant. I wish to confirm to the court that the claimant does comply with all its statutory/legal obligations. As I have explained earlier in this witness statement there is no legal obligation on the claimant to maintain an exact copy of the signed credit agreement. The nature of the copy agreement which the bank has to provide upon receipt of an appropriate request is specifically defined by the CCA 1974 and the regulations made under it.

I believe that the facts…………………………..

Doesn't seem a very strong case to me !!!!!

sc

[citizenB]

Me either. I am sure that x20 will be able to pull that apart. Especially the bit about not requiring to provide in court a copy of an agreement that bears YOUR signature

 

Did they also forget the Money laundering and Tax laws that say you must keep a statutory document (of which a contract/agreement is) for 5/6 years after an account is ended. ?

[FunkyFox]

Gosh, I cannot believe that they are actually intending to proceed with the claim on this basis. They are either a) chancing their luck that they will get a clueless DJ and a result or b) you lose your nerve. Either way I guess they won't be in a worse position than they are now with no agreement. I imagine MBNA's legal costs are met under an insurance policy of some description so they probably reckon they have nothing to lose.

 

On the basis that their own witness statement admits that they do not have an agreement of any kind then I'm not sure what else to do than sit back and enjoy the ride. I cannot see how they can possibly believe they will be succesful.

 

i await x20's comments with eager anticipation.

 

BTW - I wish in my case the claimants case was so weak!

[The GodMother]

kk means 2 things.

 

some times it meak ok or it means kool ok, it really does depend on where u are from

[The GodMother]

well it does not seem all that good. they obviously are not aware of the money laundering laws like CB has said.

 

If they want to issue court claims then maybe they should not use the Bulk centre as this does make the POC vague as they haave admitted it.

[StayingCalm]

Yes, I can't wait for x20 comments.

 

They admit there is no signed agreement, and use a defective Default Notice as an exhibit. Doesn't seem to me there's anything to strengthen their position.

 

I've got problems with a few cards, and this one is the weakest case against me, and yet the only one to get to court so far, (touch wood).

 

Thanks for everyones support.

 

sc

[The GodMother]

YW SC will be about just incase u have any questions

[Josie8]

subscribing

[surfaceagentx20]

I am astonished the bank is prepared to rely on one witness only in circumstances where they can not produce the agreement. Here are my thoughts at this time:

 

At para 4 the witness skirts around the contents of the bank's correspondence, viz, the bank's promise to provide a full response and the fact that by those promises the bank lured SC into believing his request would be answered when all along the bank were plotting to sue and not answer.

 

At para 5 the witness does not meet the fact that prior to the service of the default notice there was an outstanding s78(1) request dating back to 25 February 2008. As we all know, 78(6) prohibits enforcement of the agreement in circumstances where the section 78(1) request has not been complied with. A default notice is 'enforcement'. The default notice says it is. Schedule 2 Regulation 4 compels the use of the following statement and its words indicate that what would follow would also be 'enforcement':

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

If section 78(6) prevents the service of the default notice, the bank can not rely on service of it to give rise to the entitlement at section 87(1).

 

In any case, the witness deals with the default notice but appears oblivious to the fact his/her evidence demonstrates the default notice did not comply with section 88.

 

Para 8 is the interesting one. It is right to say the Act does not compel a Claimant to produce the agreement. It is simply a rule of evidence that a party who seeks to rely on the provisions of an agreement will be required to prove it. If the agreement is unavailable to the court the Claimant will be in difficulties where faced with a denial from the Defendant. The Claimant will have to prove by some other way and that other way invariably involves obstacles.

 

In this case the bank seek to prove by producing the pro-forma together with the witnesses evidence that the pro forma 'would have been in the form signed by the Defendant'. A number of challenges arise out of this statement:

 

What qualification does this witness have to say that the pro forma would have been the one signed? As I understand it, this agreement is an Abbey one. Was he employed by Abbey in March 1998 and in the department that dealt with the processing of this type of agreeent at this time?

 

He is unable to say that it was signed. Only that it would have been. How is he so certain? Did he see the agreement bearing SC's signature? If not what records by way of internal audit or check-list has he examined to be able to verify it would have been signed? Who authored / initialed the check-list? Where is this person in court? Where are those records? They have not been disclosed.

 

Moreover, the witness only says the bank's can't produce it. He doesn't say that it has been destroyed. He doesn't say what searches have been made to locate it. He doesn't produce a record demonstrating that a direction was issued to destroy it and that direction was carried out, when and by whom. He does not explain why, if a direction for destruction was issued, why it was policy to destroy it (remembering of course that it is only in recent months that the agreement was current) and why it was policy that a a good quality copy of it was not taken.

 

In short, the bare statement that SC would have signed the agreement matching the pro forma is open to serious investigation by cross examination of this witness.

 

At para 9 the witness says there are no details of harrassment. The details are plain for all to see. The bank issued a default notice when it was restrained from doing so. It issued promises to provide a full response thereby procuring SC's inactivity pending receipt of that full response. So keen to sue were they, they didin't even allow the requisite 14 days on the default notice. It sued before providing its full response.

 

It is very tempting to rush in with a reply 'on the record', to the evidence. I'm the same. When I first read this statement I was chomping at the bit.

 

However, one has to be wary. An early disclosure intended to signal the weaknesses in the evidence is very likely to cause the opponent to seek a get around. Far better to resist the temptation and to release this signal at a time when it will be too late for the opponent to achieve the get around. That would be about 15 minutes prior to the case being called on.

 

What would I do?

I would await the response to the previous letter. That letter was an open letter and called for a cards on the table approach. If it is not answered within a week of delivery, send a reminder and ask for a response within the week following.

 

If there is still no response, there is very little you can do to prevent the case running if the bank is intent that it should, short of an application to the court for summary judgment. You have already pointed out the weaknesses in the bank's case. The bank seem to appreciate there are weaknesses given the internal messages you have mentioned to me.

 

If you would feel more comfortable being pro-active, a carefully crafted Notice to Admit Facts, springs to mind.

 

I don't think there is anything useful I can further add at this stage.

 

x20

[tinkerbell20]

If the creditor serves you with a notice to admit facts that

 

1. You signed an agreement

2. You had money from agreement

3. You've made payments

 

The creditors agreement doesn't contain prescribed terms. How would you carefully word the response to make it clear to the court that the agreement itself is unenforceable? Are you allowed to do that?