Help

[Von Greenbach]

It was Churchers Solicitors they are a big company that deal in various aspects of law including consumer credit act the guy i spoke to was a consumer lawyer

Nice one PF, I spoke to a consumer lawyer today, she asked who was the claimants solicitors in my case I said Evershi*s, Oooooooooooo no one messes with Evershi*s was the reply :mad:

[pompeyfaith]

ok i need guidance im trying to locate the CPR Rule relating to service of default notices can someone point me in the right direction

 

Thanks

 

PF

[Von Greenbach]

Does this help PF?

 

CPR - Rules & Practice Directions

[pompeyfaith]

Ok This is how far i have got so far i welcome comments on it and how i go about including damages.

 

IN THE PORTSMOUTH COUNTY COURT Claim No:

 

 

BETWEEN MBNA EUROPE BANK LTD Claimant

And

Defendant

 

 

DEFENCE OF BY ORDER OF

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.

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 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 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

7. 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.

8. I did not get a reply to this request until the 30th July 2008 which stated in a letter to me headed without prejudice that they where awaiting their clients instructions as to how quickly the information can be provided.

I did not get the requested information until the 30th December 2008 which was 6 weeks after Optima Legal applied for summary Judgment and only 2 weeks before the summary judgment of the 15th January 2009.

9. At the summary Judgment on the 15th January 2009 it got adjourned until the 21ST April 2009 because the defendant did not send a witness statement to the claimants although the defendant did send in a witness statement to the court and a copy was given to the claimants on the 15th January by DJ Wilson.

The Defendant wishes to apologize to the court for this innocent error and bear in mind that I am a litigant in person who is unfamiliar with court procedures.

10. To this date the claimant has failed to produce a true copy of the credit agreement as what they have produced is merely a pre-contractual application form that was taken from a Portsmouth F C match day brochure this you an clearly see as it has a scissor symbol at the top left hand corner furthermore I fail to see how they can refer to the rankie case in their witness statement where it states that the defendant was supplied with 3 copies of the agreement because if that was the case their would be no need for the application to be cut.

The Pre- contractual Application also did not have the full terms and conditions of the alleged agreement also the application referred to an APR of 15.9% and fees of £25.00

11. The terms and conditions the claimants have produced in court are the terms and conditions of 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.

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

13. The Consumer Credit Act 1974 s61 is explicit 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

 

14. 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:

 

"72. 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.

 

73. 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. . . .

 

74. 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. . . ."

15. 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.

 

16. 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.

 

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

18. 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.

The Default Notice

19. On 16thth 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(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 true default notice is attached to this defence marked Exhibit C).

20. The Default Notice the Defendant produced in court on the 3rd March 2009 is a fraudulent copy the true Default notice is dated the 14th April 2008 and gives a date to rectify the breach of the 28th April 2008 they have clearly made a mistake 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 1983.

The fraudulent Copy produced in court has had the date changed to the 1st May 2008 so as to make the court believe it was compliant.

21. The True Default also relates to clause 3 where as the copy produced in court relates to clause 8.

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

 

 

PF

[pompeyfaith]

I think i need to add a bit about the damage done to my credit file

[angel_1]

hiy pf - looks super to me but then not got to your stage yet but am learning pretty fast (im a bit of a fusspot re spelling - always looks good if correctly spelled,,,sorry, just trying to help you:cool:

 

just a spelling noted on

 

no 9 - the date 21ST

 

no 10 - apologise,,,i guess american apologize

no 10 - rankie,,,,(guessing you mean Rankine??))

no 10 - their,,,,,perhaps you mean there

no 19 - the date 16thth

 

brb in a minute,,,,,am back

 

 

*/*******************************************************

pinky69 - i took it from the thread i viewed

 

Pinky69 thread

© F A R Bennion Website: Francis Bennion -

 

Doc. No. 2003.061 JPN008L 167 JPN (2003) 773

 

Any footnotes are shown at the bottom of each page

 

Consumer Credit Act 1974 s 127(3)

 

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust

 

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.

 

167 Justice of the Peace (2003) 773.

************************************************

I have sent the above.Why are agreements unenforceable?

 

The man who wrote the Consumer Credit Act 1974 explains all;

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust

Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

not sure if the above will help your defence,,,see what the legal guys say to you about it,,,

 

off to bed just wanted you to have as much as possible tarrraaaaa for now

 

take care laters angel x

Edited March 10, 2009 by angel_1

[pompeyfaith]

thank you angel its not the finished article yet i have loads more to add in the morning but ty 4 your observations

[atwozee]

Hi PF – not so sure I would accuse them of fraud in your defence – its one thing to say the default notice you received differs from the one they produced as evidence – I wouldn’t want them hitting you with a libel case – I might be being over cautious but as I said earlier they could claim simple error on their system based on information they were able to retrieve.

Once you have nailed them to the wall at the trial then perhaps a letter to trading standards asking them to investigate further – TS might want to look into it further and view it as not an error but something more deliberate.

Good luck – can’t wait to see the title amended to Help *WON*

[pompeyfaith]

Point taken atwozee although i know it was fraud and will amend the defence and let the judge decide that

 

PF

[fairbyblue]

what about,

Its is both misleading and confusing at worst there may be an offence commited

[pompeyfaith]

Thank You angel just noticed my son has changed my spell checker to U.S from UK

[pompeyfaith]

Thank You Fairbyblue i grateful for the help with this as it has to be in by tuesday at court and copied to optima legal so need to get this off today

[pompeyfaith]

Should i put an amount for damages on this defence say 50% of what they where claiming ? bearing in mind not only have they committed an offence in court but also damaged my credit rating and caused untold stress and anxiety over the last 12 mths and denying me my right to a fair trial my abusing the process in an attempt to railroad this claim though the courts

 

also bearing in mind the judges last take on this im sure she will be all for clearing this up in the next stab

Edited March 11, 2009 by pompeyfaith

[pompeyfaith]

Ok Ive amended a few bits this is how its looking so far is there anymore case law i can hrow at them ?

 

IN THE PORTSMOUTH COUNTY COURT Claim No:

 

 

BETWEEN MBNA EUROPE BANK LTD Claimant

And

Defendant

 

 

DEFENCE OF BY ORDER OF

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.

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 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 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

7. 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.

8. I did not get a reply to this request until the 30th July 2008 which stated in a letter to me headed without prejudice that they where awaiting their clients instructions as to how quickly the information can be provided.

I did not get the requested information until the 30th December 2008 which was 6 weeks after Optima Legal applied for summary Judgment and only 2 weeks before the summary judgment of the 15th January 2009.

9. At the summary Judgment on the 15th January 2009 it got adjourned until the 21st April 2009 because the defendant did not send a witness statement to the claimants although the defendant did send in a witness statement to the court and a copy was given to the claimants on the 15th January by DJ Wilson.

The Defendant wishes to apologise to the court for this innocent error and bear in mind that I am a litigant in person who is unfamiliar with court procedures.

10. To this date the claimant has failed to produce a true copy of the credit agreement as what they have produced is merely a pre-contractual application form that was taken from a Portsmouth F C match day brochure this you can clearly see as it has a scissor symbol at the top left hand corner furthermore I fail to see how they can refer to the rankine case in their witness statement where it states that the defendant was supplied with 3 copies of the agreement because if that was the case there would be no need for the application to be cut.

The Pre- contractual Application also did not have the full terms and conditions of the alleged agreement also the application referred to an APR of 15.9% and fees of £25.00

11. The terms and conditions the claimants have produced in court are the terms and conditions of 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.

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

13. The Consumer Credit Act 1974 s61 is explicit 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

 

14. 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:

 

"72. 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.

 

73. 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. . . .

 

74. 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. . . ."

15. 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.

 

16. 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.

 

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

18. 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.

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

The Default Notice

20. On 16thth 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(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 true default notice is attached to this defence marked Exhibit C).

21. The Default Notice the Defendant produced in court on the 3rd March 2009 is a copy that differs from the true 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 1983.

The Copy produced in court has had the date changed to the 1st May 2008 so as to make the court believe it was compliant.

22. The True Default also relates to clause 3 where as the copy produced in court relates to clause 8 so the claimant is unsure what clause he was alleged to have breached. Its is both misleading and confusing at worst there may be an offence committed.

23. 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.

24. 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.

25. 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.

26. 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 there 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.

27. In light of the above the claimant seeks damages at the rate of 50% of the claimants claim and costs as attached.

[lexis200]

Hi PF – not so sure I would accuse them of fraud in your defence – its one thing to say the default notice you received differs from the one they produced as evidence – I wouldn’t want them hitting you with a libel case – I might be being over cautious but as I said earlier they could claim simple error on their system based on information they were able to retrieve.

 

Once you have nailed them to the wall at the trial then perhaps a letter to trading standards asking them to investigate further – TS might want to look into it further and view it as not an error but something more deliberate.

 

Good luck – can’t wait to see the title amended to Help *WON*

 

 

While I'm with you on being cautious with accusations, I'm stilll a little confused as to how they could possibly manage two such fundamental errors. As I mentioned before, one or the other, possibly, but both? If they were genuinely that unsure about their data it should have been stated - this is not something they can make a 'best guess' at as it has massive ramifications if it is wrong.

 

As I see it there are two ways it has happened -

1) They noticed they cocked up royally and decided to have a bit of fun with a new notice

2) They didn't keep a copy of the original and had to guess, meaning they have contravened the Data Protection Act in not keeping important documents relating to the account holder for the required amount of time.

 

Either way, error is not something I can see them claiming for this - whatever happened, they must have made a decision to go one way or another.

 

Not that I'd advocate putting that down on your defence either though PF, I'm just thinking out loud on how they could hope to claim error:)

[pompeyfaith]

While I'm with you on being cautious with accusations, I'm stilll a little confused as to how they could possibly manage two such fundamental errors. As I mentioned before, one or the other, possibly, but both? If they were genuinely that unsure about their data it should have been stated - this is not something they can make a 'best guess' at as it has massive ramifications if it is wrong.

 

As I see it there are two ways it has happened -

1) They noticed they cocked up royally and decided to have a bit of fun with a new notice

2) They didn't keep a copy of the original and had to guess, meaning they have contravened the Data Protection Act in not keeping important documents relating to the account holder for the required amount of time.

 

Either way, error is not something I can see them claiming for this - whatever happened, they must have made a decision to go one way or another.

 

Not that I'd advocate putting that down on your defence either though PF, I'm just thinking out loud on how they could hope to claim error:-)

 

Ill put that bit in lexis about the data protection act in my own words of course.

 

Thanks

[lexis200]

Please don't assume I know what I'm talking about, or that I'm saying anything with any base in legal knowledge pf! Although I stand by what I wrote, I'm only airing my thoughts - I'd hate for you to get caught in any libel problems just because I've ranted about how they're such gits!

[pompeyfaith]

There ou go lexis hows this

 

24. While I can see them making an error one or the other I fail to see how they can make two 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.

 

Thanks for that snippet its apt

[pompeyfaith]

Yes lexis but it was a valid point and besides it was not accusing any one of anything

[citizenB]

Quote:

IN THE PORTSMOUTH COUNTY COURT Claim No:

 

 

 

 

 

BETWEEN MBNA EUROPE BANK LTD Claimant

And

 

Defendant

 

 

 

 

DEFENCE OF BY ORDER OF

 

 

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.

 

2. 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 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 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

 

Your numbering is out here,the next one should be 8 and following numbering amended

 

 

7. 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.

 

 

8. I did not get a reply to this request until the 30th July 2008 which stated in a letter to me headed without prejudice that they where awaiting their clients instructions as to how quickly the information can be provided.

I did not get the requested information until the 30th December 2008 which was 6 weeks after Optima Legal applied for summary Judgment and only 2 weeks before the summary judgment of the 15th January 2009.

 

Perhaps restructure the above to read

 

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.

 

 

9. At the summary Judgment on the 15th January 2009 it got adjourned until the 21st April 2009 because the defendant did not send a witness statement to the claimants although the defendant did send in a witness statement to the court and a copy was given to the claimants on the 15th January by DJ Wilson.

The Defendant wishes to apologise to the court for this innocent error and bear in mind that I am a litigant in person who is unfamiliar with court procedures.

 

Perhaps restructure above to read:

 

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 I would ask the court to accept my apologies for this error of court procedures

 

 

10. To this date the claimant has failed to produce a true copy of the credit agreement as what they have produced is merely a pre-contractual application form that was taken from a Portsmouth F C match day brochure this you can clearly see as it has a scissor symbol at the top left hand corner furthermore I fail to see how they can refer to the rankine case in their witness statement where it states that the defendant was supplied with 3 copies of the agreement because if that was the case there would be no need for the application to be cut.

The Pre- contractual Application also did not have the full terms and conditions of the alleged agreement also the application referred to an APR of 15.9% and fees of £25.00

 

Perhaps restructure the above to read:

 

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 precontractural 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 see how 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 precontractural 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.

 

 

11. 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 also 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.

 

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

 

13.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

 

 

14. 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:

 

"72. 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.

 

73. 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. . . .

 

74. 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. . . ."

 

15. 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.

 

16. 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.

 

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

 

18. 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.

 

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

 

The Default Notice

 

 

20. 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(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 true default notice is attached to this defence marked Exhibit C).

 

 

21. The Default Notice the Defendant produced in court on the 3rd March 2009 is a copy that differs from the true 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 1983.

 

It might be a good idea to include the regs for the post here . Also did they terminate the agreement between issuing the 1st and 2nd Default Notice. If so, they couldnt possibly issue a 2nd anyway. Also I am a little confused at the ate 3rd of March in court ?. I thought the hearing had been adjourned to April.

 

The Copy produced in court has had the date changed to the 1st May 2008 so as to make the court believe it was compliant.

 

22. The True Default also relates to clause 3 where as the copy produced in court relates to clause 8 so the claimant (defendant) is unsure what clause he was alleged to have breached. It is both misleading and confusing at worst there may be an offence committed.

 

 

I wonder if it would be an idea to say the "Original Default" rather than True.

 

Restructuring as :

 

 

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.

 

 

23. 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 if is the case furthermore there is a question of damages caused to the defendant because of this.

 

24. 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.

 

25. 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.

 

26. 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 there 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.

 

27. In light of the above the claimant seeks damages at the rate of 50% of the claimants claim and costs as attached.

 

 

Just my thoughts.

 

 

 

 

 

 

 

[pompeyfaith]

right ill post the final version of my defence this evening 4 error checking while i compile my costs as i cant get to my pc now but thats ok as i can send it SD TOMORROW

[pompeyfaith]

thanks 4 that citizen ill amend this evening the summary of the 21st april was cancelled as there was a trial window set 4 march

[pompeyfaith]

Im not sure though if the court cancelled it or Optima Legal did

[citizenB]

thanks 4 that citizen ill amend this evening the summary of the 21st april was cancelled as there was a trial window set 4 march

 

 

aha, sorry I didnt take the time to read backwards. I didnt know how pushed for time you were and I am an extremely slow reader

[pompeyfaith]

no appologises needed citizen but thanks 4 your valuable help PF