Help

[citizenB]

Noted. It's a good job its anon or you would have to learn how to deal with a libel action (tongue in cheek)!

 

I understand the points you are making. I am not 'that person' and have no wish to be worshipped, but understand the sites natural susp etc.

 

Truce??

 

Yeah... truce . It's much better when we all bat for the same side, so to speak and I know you're not "that" person, by the way... .

 

This is good news.

[citizenB]

Help

 

Due to my stroke and having a brain like a sieve ive cocked up big time i think having put my defence in and clicking the submit button i relised i did not included the part 20 have i now lost all chance of a counter claim ?

 

If i ring northampton tommoz and explain my mistake do you think they will be able to amend ( not holding out on that) or will i be able to add my part 20 later on ( even if it does make me look a Edit)

 

Really need some advice here.

 

Thank You

 

Regards

 

Leon

 

There is no harm in phoning and explaining that you hit the submit button in error.

[citizenB]

Leon, a STAY is where the court orders a suspension of proceedings for one reason or another.

[citizenB]

Hiya Guys,

 

I got this letter this morning from optima legal delaying tactics you think ? as its now past 14 days the letter was also not signed

 

Do you think i need to send a response to that letter?

 

Regards

 

Leon

 

http://i321.photobucket.com/albums/nn363/pompeyfaith/OptimaLetterreCPR18.jpg

 

 

Definitely delaying tactics .

[citizenB]

Just one thing I noticed Leon, is that you wont be able to produce that letter in court as they have marked it WITHOUT PREJUDICE. So they know exactly what they are doing

[citizenB]

well jusy an update still nothin recieved but just want to check my dates N1 was dated 11 july cpr 18 was sent on the 17th july they recieved it on the 18th july so there 14 days ran out on the 1st august.

 

33days from the 11th july is the 14th august ??

 

are these dates correct ?

 

 

Regards

 

Leon

 

I make it 13th August..

[citizenB]

To be honest leon, I am not sure. I think you can write to the court and say that they havent produced any documents for you to see. I am not sure whether you can sneak in the fact that they are corresponding with you but using a Without Prejudice heading which is going to make it very difficult for you to put in a proper defence.

 

I think you need someone with some legal knowledge on this one now.

[citizenB]

bumping again for you.

[citizenB]

Hiya All

 

 

 

 

 

When did they recieve them

06/09/08 ?

 

Do you intend to make any applications in the immediate future

 

Regards

 

Leon

 

 

Whilst the rest of the A&Q seems a bit odd, this bit in particular is bizarre.. the 6th is Saturday.... ??

[citizenB]

Just popping in to wish you good luck for tomorrow Pompey:)

[citizenB]

That looks fairly comprehensive to me Pompey.

 

Good luck for later on. I know it is easy said, but try to remain calm. They dont execute or deport anyone nowadays..

[citizenB]

you are more than welcome

[citizenB]

well what a total balls up turns out their was a printing error on the order the time should have been 14:00 and not 4pm so it is ajorned until the 29th the 2

 

Ooops..

 

Funy though once i was there i felt ok

 

 

and the judge was just a regular gizzer behind a desk

 

Pompey, what a farce. Still at least you now have some idea of what goes on and if it could be reduced to small claims then that will be much better as well. You also have a bit more time to read over your notes:)

 

Sounds like your DJ was ok.

[citizenB]

Sadly not so. The courts are inundated with cases.

 

But what is the outcome of these cases I have just come from this thread http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html and I think the more we all do, the more the courts, bodies, authorities, wbankers oops, will have to sit up and take note. Mass Action is required

 

aa, check out those threads that have **WON** in their titles. I think there are a good few on the forums

[citizenB]

The trouble is CB, that i have watched several cases to mine that have almost the same issues, most of them have failed, yet i am still fighting mine, but there is stiill one last chance for mine to fail too, but that is little consollation right know.

 

The fact remains there is no inforcement of any laws, guidlines or anything else, at the end of the day your faced with a court and a judge who may rule on the the law, or who may rule on moralaty, which may not be correct, but unless challenged that judgement will stand, the rankines is a perfect example at its extreme on that one.

 

The trouble is how many hoops do the the ordinary people we see on here, with a just case, need to jump through?

 

Most have not got the knowledge or the strength.

 

How much longer will the credit industry get away with what equates too a misscarage of justice just because the defendant does not have the strength or knowledge to fight it:-?

 

 

BAB, surfaceagentx20 and pt2537 have both offered their opinion on the Rankine Judgement and there were several errors I believe and there are counter arguments on the forums. Sorry at the moment, I dont have the links to hand. However, in this thread I have linked you to 2 posts that might just put your mind at rest.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1927305.html

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1927710.html

[citizenB]

Pompey, what news from the court ?

[citizenB]

Nothing citizen they said that they have nothing else on file so im wondering my next move i just asked if they have heard from optima at all .

 

Surely if the judge said on the 15th reset for first hearing after the 29th optima should have got back to the court by now with there proposals.

 

YOu would have thought so, however, who knows what goes through the minds of these people.

[citizenB]

a bit of abuse of process going on here, but that is nothing new to optima legal i sent the cpr part 18 in july and did not get a reply until 2 weeks before hearing

 

Doesnt seem fair really does it. If you had tried any of these tricks, the court would be down on you like a ton of bricks:(

[citizenB]

Hmmm, the order was drawn up on the 28th January. The claimant had until 4pm the following day (29th January) to provide any further evidence in support of it's claim.. 1 day ??.

 

I am not sure what you should do next.

[citizenB]

Does anyone have a credit card carrier around the yr 2005 if so can you scan both sides and post it on here so i can take a look. Mbna are relying on the rankie case in my case they also say the application had 3 copies and i know thats not true as the application was in a pompey f c magazine if i can produce a copy of the card carrier in court that would be a great help PF

 

 

Sorry PF, no I dont. I used to shred them because they never seemd to contain anything of importance !.

 

 

Ok after a bit of thought im gona fone a solicitor in the morning and see if i can get an hr and go through my bundle in light of what i noticed tonite i think a solicitor will be interested just hope i can get someone on board this late into case

 

However, it would appear that you dont really need a copy of the carrier in the light of what you have discovered. Well done for spotting it RIP, MBNA

 

Capital One have tripped up with a similar error in a default to OH.

[citizenB]

PF, Fairy blue has exactly the same issue regarding the Default Notices.

 

Any chance you can pop over and give her some advice if you have the time.

 

This link should take you directly to the post which is 211

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170484-mbna-restons-threat-court-22.html#post2028494

[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.

 

 

 

 

 

 

 

[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

[citizenB]

Just a few points

 

The bit in red doesnt read quite right to me... Have restructured in blue

 

 

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.

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.

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

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”

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

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.

The above paragraph, might read better....

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.

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.

Hmm, perhaps you should reword the above. I am not sure that acknowledging they can make even one error on an important document is a good idea ?

Nice one Pompey

[citizenB]

thank you atowzee