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[shakespeare62]

In fact, they would have to rope more and more people into this 'fraud'. The DBA (Database Administrator would have to give a witness statement that the record printout retrieved is accurate, then the Data Entry Clerk(s) who made the original entry would need to do the same). The more people involved the more potential points of 'failure' under cross examination.

 

I mean ultimately an audit of their IT system - could mean Game Over for MBNA and their DBA.

Edited April 16, 2009 by shakespeare62

[shakespeare62]

Also what are their procedures for creating a Default Notice ? I bet you it is computer program accessed via some sort of menu. Programs are consistent. They access a persons data, calculate a standard timescale on the calendar and produce consistent results time after time.

 

Operator intervention would be minimal. They wouldn't get the option to choose seven or 14 days once the Regs were in force. In practice the function would produce a standard output when selected. I don't buy MBNA's assertion at one point in the day it calculates the Default Notice Period one way, then a different way later in the day. This stinks.

 

What about all their other default notices issued for the same period - are they all different too ? I bet you they are not. Would they be williing to produce certified screen prints of their menu options for Default Notices ?

Edited April 16, 2009 by shakespeare62

[shakespeare62]

tidied up - removed duplicate post above

Edited April 16, 2009 by shakespeare62

[shakespeare62]

Remember we're not talking about some minion counting out 14 days on their fingers and selecting a value from a drop down calendar list - this would be a standard process - 'once click'

[underdog13]

Excellent points, S62:)

[pompeyfaith]

Shakespeare,

 

Thanks for your posts those points have been noted i have now sent letters to the court and optima legal and copied to mbna about getting my hearing vacated to a later date due to unforseen circumstances.

 

Soon as the case is back up and running again i will add those points in my next witness statement.

 

Right now all my time is with my dad and family.

 

Regards

 

PF

[shakespeare62]

Thanks guys. Pompey sorry to hear about your dad. You’re also recovering from hospital and can surely do without having to deal with a ‘bent organisation’ on top of everything.

 

I would like to outline a couple more things if I may (see my next 2 posts below)

Edited April 17, 2009 by shakespeare62

[shakespeare62]

Firstly A brief overview of how their IT System would handle Default Notice production :-

 

A large Bank / Financial institution would have a list of account numbers to be defaulted each day. A software process (likely to be menu driven), would allow the Data Entry Clerk to request a Default Notice to be issued for each account. Each selected account is ‘flagged’ on the database in some way to indicate the action required.

 

An overnight process is then run (because more computer resources are ‘free’ at the end of the day), to access the database and print out Default Notices for each selected account. The print outs are directed to a networked printer at some office / mail fulfilment branch. The next morning the branch employees stuff the default notices along with other mail in matching envelopes and place them in mailbags for collection at a given time in the day.

 

What the Data Entry Clerk doesn’t do - is to print out the Default Notice himself, run round to the printer, put the notice in an envelope and post it (A DCA might - but not a big institution).

Edited April 17, 2009 by shakespeare62
tidied line spacing

[shakespeare62]

With the above in mind, a good line of cross examination can be pursued e.g. Why would the Clerk issue a Default notice twice on the same day ? What made him aware that the first Default Notice was invalid – did he see a printout ? (you can cross check answers against their printing procedures and the audit trail etc.) Did he view the amended record on screen ? Does the Menu Application allow this ? If it does – why didn’t he cancel the first request before issuing a second ? Did the Application allow him to change the notice period ? (unlikely). When was he first aware that the notice period should allow time for postage ? Was this company policy ? If not did he inform anyone ? Did the company continue to send Default Notices which did not allow time for service ? Did he amend all further Default Notices he requested ? Was yours the only Default Notice he changed ? Could this be confirmed by an audit trail of all Default Notices he issued ?

 

I believe there is good scope for throwing doubt on the authenticity of their evidence. They also run a risk that outsiders e.g. IT contractors have worked at MBNA offices in Chester on projects and may be familiar with their systems. So discrepancies given in Court could quickly come to light.

 

The obvious conclusion is that following your Defence, they are attempting to redeem a defective Notice by issuing a 'fake one'. This is ‘fraudulent’.

 

A default notice would normally only be re-issued by a creditor in circumstances where the arrears were settled within the original Default Notice period, and a debtor subsequently defaulted at a later date. Twice in one day is “Ball Hooks”.

Edited April 17, 2009 by shakespeare62

[WelshMam2009]

Firstly A brief overview of how their IT System would handle Default Notice production :-

 

Shakespeare...do you think it would be possible for a company to backdate a DN without it leaving some trace on their system??

[pompeyfaith]

Thanks shakespeare for this very good info.

 

When it goes to court again i will compose this into my next witness statement.

 

Regards

 

PF

[angel_1]

Thanks Shakespeare - you make very good points and i have noted for future defense too

 

and PF once you have a new amended date for court, you can then try and take the time out for your dad and family

 

keep the faith

 

laters angel x

[tiokim]

Optima Legal manages to be below Restons solicitors level of integraty.

[pompeyfaith]

Fred,

 

Thank You for the update, Nice name you have also is that of my beloved terminally ill dad.

 

Would be interesting to see if this clare rhodes would be interested in taking on my case im sure in light of her events she would like to get one over them and not to hard in my case just the fraudulent DN should do it.

 

Im sure it was they that put the second DN together

 

Regards

 

PF

[pompeyfaith]

hiya all i have today received an AQ and a further order from the court it is not from the DJ who reserved the case im now confused as to what is going on i also got a set of papers that state for staff use only ill post them up this evening for a kind sol to have a look PF

[I've got no money]

Sounds interesting - I am intrigued now

[underdog13]

Hi PF,

sounds odd - wonder what they are playing at?

[I've got no money]

Hi PF,

sounds odd - wonder what they are playing at?

 

 

That's what I thought - I can't take the suspense come on pf - post the stuff

[pompeyfaith]

Ok just finished scanning will post now sorry guys

[pompeyfaith]

Ok firstly these orders are dated 12th March hhmm it is now 21st April also they had an aldershot post mark on the envelope not sure if that has any relevance being as the court is in portsmouth.

 

Now bearing in mind my defence was sent in late as per an order by the DJ this order is a few pages back.

 

By late i mean it should of been in ages ago but i was denide my right to do so hence the DJ made on order giving me the oppotunity to do so.

 

ok this is the N152 AND N24 i got today along with a standard N150 ALLOCATION

 

 

 

I also got an allocation/directions tick box form which says (for use with F/T & M/T cases and assessment of damages cases only.

 

Their are 4 pages to this the first of which is below

 

 

As for the CPR it say parties must follow these are below

 

6.4

(1) When –

(a) a party to a claim which is outside the financial scope of the small claims track files an allocation questionnaire; or

 

(b) a party to a claim which is being dealt with on the fast track or the multi track, or under Part 8, files a pre-trial check list (listing questionnaire),

 

he must also file an estimate of costs and serve a copy of it on every other party, unless the court otherwise directs. Where a party is represented, the legal representative must in addition serve an estimate on the party he represents.

 

(2) Where a party is required to file and serve a new estimate of costs in accordance with Rule 44.15(3), if that party is represented the legal representative must in addition serve the new estimate on the party he represents.

 

(3) This paragraph does not apply to litigants in person.

 

6.5

 

An estimate of costs should be substantially in the form illustrated in Precedent H in the Schedule of Costs Precedents annexed to the Practice Direction.

 

Can anyone shed any light on this as im now totally confused as i was going by the last order i got given at the last hearing.

 

Regards

 

PF

Edited April 21, 2009 by pompeyfaith

[pompeyfaith]

This is the Defence the N152 refers to

 

IN THE PORTSMOUTH COUNTY COURT Claim No: …………

 

 

BETWEEN MBNA EUROPE BANK LTD Claimant

And

………………… Defendant

DEFENCE OF …. …… BY ORDER OF DJ ELIZABETH MANUAL

1. I, …. ……, am the defendant in this case and make the following statement as my defence to the claim made by MBNA Europe Bank Ltd.

2. I make this defence against the Claimants claim against me. 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.

3. I make this Defence from information and facts within my own knowledge and which I believe to be true

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

5. The claimants' particulars of claim 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 agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported 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) No account number is contained within the particulars to enable me to identify the account on which this claim is brought.

6. The Defendant understands that with particulars of claim issued though Northampton county court bulk centre documents do not need to be attached, but they should still be forwarded to the defendant at the claimant’s earliest opportunity as this did not happen I put the claimant to strict proof thereof.

 

7. In all the circumstances the Defendant denies being indebted to the claimant as alleged or at all.

The build up to this action

8. In the build up to this action, I had raised a formal dispute with Optima Legal Services Ltd the Solicitors acting for MBNA Europe Bank Ltd. On the 16th July 2008 the defendant sent a request under the Consumer Credit Act and Civil Procedure Rules part 18 for a true copy of the executed Credit Agreement, and a statement of account detailing the principal, and all charges and fees made in respect of the debt, the claimant received the request on the 17th July 2008 by special delivery I have no receipt for this delivery but the claimant has stated in their witness statements that it was received on this date.

9. I did not receive a response to this request until 30th July 2008, when I received a letter headed "Without Prejudice" that they were waiting for their clients to advise how soon the information could be provided.

 

The requested information was not received until 30th December 2008, which was 6 weeks after Optima Legal had applied for Summary Judgement and only 2 weeks before the Summary Judgement hearing on the 15th January 2009.

10. The Summary Judgement on the 15th January 2009 was adjourned until the 21st April 2009. This was due to the defendant's unfamiliarity with court procedures and not having supplied the claimant with a copy of the Witness Statement prior to the hearing, although the court had been provided with a copy. A copy of the defendant's Witness statement was handed to DJ Wilson at the court on the 15th January 2009. Bearing in mind I am a Litigant in Person, I would ask the court to accept my apologies for this error of court procedures

11. To date the claimant has failed to provide a true copy of the credit agreement. All that has been provided to the defendant is a copy of a pre-contractual application form that was taken from a Portsmouth FC match day brochure. This you can clearly see as it shows a scissor symbol at the top left hand corner. Furthermore, I fail to understand the reference to the Rankine case in their Witness statement where it states that the Defendant was supplied with 3 copies of the agreement. If this had been so, there would have been no requirement for the form to be cut.

The pre-contractual Application does not contain the prescribed terms. It does however refer to fees of £25.00 and an APR of 15.9%. No other terms and conditions were included. Attached to this Defence is a copy of the Pre- Contractual Application Form marked exhibit “LFC 1”

12. The terms and conditions the claimants have produced in court are the terms and conditions from 2007 where the office of fair trading reduced the fees to £12 and the APR on these terms and conditions is 24.9% so they cannot be the terms and conditions the Defendant is alleged to of signed to. Attached to this Defence is a copy of the Terms and Conditions from 2007 marked “LFC 2”

13. Furthermore the 2007 terms and conditions cannot be the agreement as the claimant stated in their witness statement, as they do not contain the signatures of the defendant or the claimant.

14. The Defendant also wishes to point out that payment protection insurance was paid every month often as much as £60 when payment protection insurance was not requested this is born out on the Pre-Contractual Application form where you will see the box was not signed to accept this. Furthermore the reason I did not request this was due to a previous medical condition namely a stroke I had in 1990.

15. The proof this was paid is on the copies of statements in the court bundle submitted to court

16. The Consumer Credit Act 1974 s61 is explicit in that a regulated agreement is not executed unless the following is carried out

61 Signing of agreement

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the

creditor or owner, and

(b) the document embodies all the terms of the agreement, other than

implied terms, and

© the document is, when presented or sent to the debtor or hirer for

signature, in such a state that all its terms are readily legible.

The importance of a copy of the credit agreement and its production before the court

 

17. Firstly, I make reference to an excerpt of case law from the case of Wilson v Robertson’s (London) Ltd [2005] EWHC 1425 (Ch),

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the lender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

18. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

19. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

 

20. Despite criticism in the Crowther report I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

21. The message clearly from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the claimants failures to supply the information and their behavior in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence.

 

22. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and whether it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met.

 

23. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

24. I would again respectfully submit that the debt is unenforceable under the Consumer Credit Act 1974 until such time as the claimant provides a true executed copy and/or the original agreement.

25. To that end I put the claimant to strict proof.

The Default Notice

26. On 16th April 2008 I received a letter from MBNA Europe Bank LTD. The letter was headed Default Notice served under section 87(1) Consumer Credit act 1974. The letter cannot be a valid default notice as it fails to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) in particular schedule (2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with S87 (1) Consumer Credit Act 1974. (A copy of the Original default notice is attached to this defence marked Exhibit “LFC 3”

The defendant will produce in court at trail on the 12th may 2009 the original Default Notice.

27. The Default Notice the Defendant produced in court on the 3rd March 2009 is a copy that differs from the original Default notice which is dated the 14th April 2008 and gives a date to rectify the breach of the 28th April 2008 they have clearly got the document wrong by not allowing time for service as I received it on the 16th April 2008 so that only allows 12 days and not the 14 days from service to defendant it states under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1974.

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.

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

88. Contents and effect of default notice.

(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 14 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 14 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 14 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 and any other prescribed matters relating to the agreement

.

(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.

The Copy produced in court has had the date altered to the 1st of May 2008 in order to persuade the court it was compliant. Attached to this Defence is a copy of the copy Default Notice marked exhibit “LFC 4”

28. The Original Default notice dated 14th April refers to clause 3 as having been breached, whereas the 2nd amended copy produced in court refers to clause 8. The defendant is therefore unsure which clause he is supposed to have breached. It is therefore both confusing and misleading. At worst there may be an offence committed.

29. The wording layout on the original Default Notice is different to that on the copy produced in court and put in the court bundle by Optima Legal Services Ltd.

30. 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.

31. As there is not a compliant Default notice in force it also raises the question whether a default should have been placed on the defendant’s credit reference file which is the case furthermore there is a question of damages caused to the defendant because of this.

32. I fail to see how they can make mistakes on a legal document and if they where genuinely unsure about their data it should have been stated this is not something they can make a best guess at as it has serious consequences. Furthermore if they did not keep an accurate copy of the default notice and had to make a guess they would have contravened the DATA PROTECTION ACT 1998 in not keeping important documents relating to the account holder for the required amount of time.

33. I request to the court that an order be made that MBNA Europe Bank PLC have all references to defaults on the defendants reference file be removed.

34. This is clearly a contempt of court which is a very serious breach and as such I ask the court to strike out this case with costs awarded to the defendant.

35. The Defendant would like to point out that MBNA Europe Bank Ltd and Optima Legal Services Ltd have caused the Defendant Considerable stress and anxiety over the last 15 months due to their constant barrage of telephone calls and letters and then to try and railroad this claim though the courts abusing the courts processes and the consumer credit act 1974 and 1986 is totally unacceptable.

36. In light of the facts I have stated above I respectfully request that this case be struck out

37. The Defendant would like to draw the judge’s attention to CPR 44.14 and in light of the above facts deny the claimant their claim for costs.

38. In light of the above facts the claimant respectfully asks the judge to consider a damages award to the defendant.

I believe that the facts stated in this Defence are true and accurate to the best of my knowledge.

Signed …………………………………..

Dated ……………………………………

[I've got no money]

On the basis that your case has had directions...I think that this is a bit of a cock up - you need to give the court a call and ask them to explain exactly what's happening.

 

The tick box form is how the Orders get recorded - the DJ fills it in - sends it to the court office who prepare the Orders which are sealed and sent out.

 

The fact that the Order is made one day and dated another doesn't mean much either - lots of courts have a backlog - the Judge makes am order one day - sends it to typing and it takes them weeks to produce the actual order.

 

You'll find when you phone the court they'll be embarrassed and tell you to ignore it

[pompeyfaith]

This is the court order i was going on until that lot came in the post today.

 

[pompeyfaith]

Well this is not the first time they have cocked up last time they put the wrong date on the order for a summary judgment and because of it i was 2 hrs late getting there they put 4pm on the order and it should of been 14:00 hrs lol

 

No this is not funny this is winding me up no end.

 

Regards

 

PF

[I've got no money]

You really don't need the hassle at the moment - I think that you'll find that the valid order is that of DJ Manuel

 

It's a bit like fawlty towers...