Help

[angel_1]

hey keep on trucking pf,,,,nearly there with the final article

 

keep happy

 

laters angel x

[GamekeeperToPoacher]

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 (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.

 

just my 2 pence worth.

 

I am so impressed I can't wait to hit MBNA myself. Judging from this I think MBNA should just roll over in future cases and perhaps employ PF as a trouble shooter.

 

Keep up the good work and I look forward to your future assistance

 

GK

[pompeyfaith]

Hehe thanks GK for your 2p worth any shipped that can be beefed up will be used. hey we all want to nail these suckers.

[pompeyfaith]

Ok here we are what you all think:-

 

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. 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

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 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 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 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.

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.

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 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

 

15. 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:

 

16. 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.

 

17. 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. . . .

 

18. 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. . . ."

19. 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.

 

21. 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.

 

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

23. 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.

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

The Default Notice

25. 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 “LFC 1”

26. 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 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 changed to the 1st May 2008 so as to make the court believe it was compliant.

27. 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.

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

29. 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.

30. 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.

31. 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.

32. 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.

33. 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

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

 

Strong enough ?

 

PF

[pompeyfaith]

Ill go and sort the costs out while someone checks the defence over for me

[AndyOrch]

Excellent Leon.you have come a long way in 12 months.keep it up

 

Regards

 

Andy;)

[pompeyfaith]

Thanks Andy Nice to see you back yes after finding the errors on the DN hopefully this will be the end of it.

[pompeyfaith]

As regards to costs am i right in referring to CPR 44 or is there another rule for defendants costs

[AndyOrch]

Yes you are on the right lines Leon see here - Practice Direction 43–48

 

Regards

 

Andy

[pompeyfaith]

What about this:-

 

34. The Defendant would like to draw the judges attention to CPR 44.14 and in light of the above deny the claimant their claim for costs.

[AndyOrch]

told you you were on the right lines.

 

 

Andy;)

[pompeyfaith]

Do you all think that me claiming damages of 50% of the claimants claim is a right sum as i dont want the court to think im greedy and jumping on the gravy train. 50% is £3196.84

[pompeyfaith]

There is also the matter of PPI that was taken every month and the box on the alleged pre-contractual application was not ticked or signed for this

 

Anyone know how i can word this into the defence.

 

PF

[pompeyfaith]

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.

[pompeyfaith]

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. 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

 

 

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 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 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.

 

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.

 

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 prove 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 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 “LFC 1”

 

27. 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 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 changed to the 1st May 2008 so as to make the court believe it was compliant.

 

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 true Default Notice is different to that on the copy produced in court and put in the court bundle by Optima Legal Services.

 

30. 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.

 

31. 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.

32. 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.

 

33.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.

 

34. 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 which is totally unacceptable.

 

35. The Defendant would like to draw the judges attention to CPR 44.14 and in light of the above deny the claimant their claim for costs.

 

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

[lexis200]

I know nothing about defences but it looks good to me anyway:)

[AndyOrch]

Do you all think that me claiming damages of 50% of the claimants claim is a right sum as i dont want the court to think im greedy and jumping on the gravy train. 50% is £3196.84

 

 

I would mot advocate stating a percentage leon far better to leave it to the DJ discretion

 

Regards

 

Andy

[pompeyfaith]

ok andy thanks thats what i wanted to know

[pompeyfaith]

Changed to this:-

 

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

[AndyOrch]

Changed to this:-

 

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

 

 

Plus interest;)

[pompeyfaith]

From when andy ? ............................ to judgment ?

[AndyOrch]

CAN I CLAIM INTEREST

ON DAMAGES?

You may be able to claim interest on any

damages awarded from the date the claim

arose to the date the damages are paid but

you will need to say clearly in the particulars

of claim if you want to include a claim for

interest.

[pompeyfaith]

defendant wishes he could see the look on optima legals faces on friday when they receive this defence a bad weekend for them poor sols.

[pompeyfaith]

CAN I CLAIM INTEREST

ON DAMAGES?

You may be able to claim interest on any

damages awarded from the date the claim

arose to the date the damages are paid but

you will need to say clearly in the particulars

of claim if you want to include a claim for

interest.

 

So where do i stand there as i did not issue the poc they did ?

[AndyOrch]

leon Im trying to watch the Man Utd match can we run through this tomorrow:D

 

Regards

 

Andy