mitzbag v restons burgh!

[sunflower99]

bump ! Hope someone answers your queries soon!

[supasnooper]

Obviously the Judge wishes to know about the transactions of the account.

 

You will now have to state which transactions are not recognised, as you have already disputed a random transaction under questioning by the Judge.

 

If you do not recognise the random transaction then you must dispute it as the Judge will no doubt pick on it again.

[mitzbag]

I genuinly can not remember the transactions in question. I have SAR my bank and MBNA to get information to help me but MBNA wont send it unless I send them my driving Licence? Is this normal? Its all getting confusing can anyone please help?????

[supasnooper]

I genuinly can not remember the transactions in question. I have SAR my bank and MBNA to get information to help me but MBNA wont send it unless I send them my driving Licence? Is this normal? Its all getting confusing can anyone please help?????

 

 

Typical MBNA behaviour I'm afraid.

 

I believe there is no legal reason for a signature on the SAR request.

 

After all, they have sent other correspondence to you at your address. Indeed, as claimants, they have authorised the service of legal papers to you.

 

To move things on you may wish to send them a copy of you Driving Licence but put a line through your signature so they cannot "lift" it.

 

Or you may wish to see out the 40 days and issue a court summons for SAR non compliance to MBNA and a complaint through the Information Commisioners Office about MBNA.

[citizenB]

They are only entitled to ask for further identification if they are not sure you are you !.

 

The fact they have sent sensitive documents already and have lodged a court claim against you supposes that they DO know who you are and are just stalling.

 

What makes them think you have a driving licence / passport in any case.. plenty of people dont

 

My thoughts would be to copy the claim form that the court has sent you and send them that..

[sunflower99]

Dear Sirs,

 

RE Accounts -

Thank you for your letter dated xxxxxxx xxx

Your letter requests “For security reasons we require you to provide a form of positive identification (an example of acceptable identification would be a copy of a driving licence or passport which includes your signature), before you comply.

 

To the present date you have easily sent statements and correspondence containing my sensitive and private statements and personal financial information to my address. I am asking myself now why all the concern regarding security regarding my information, and why you are doubting that I am not the right person? I request the reasoning behind the length of time for you suddenly to be worried about this.

 

I am confident an organisation the size of MBNA are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of data protection, listed in schedule 1 of the Data protection Act 1998:

 

7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

I would like to advise that clarification with Government bodies assured me that this is purely MBNA's own internal proceedures, and not really required.

 

I am concerned that I do not hold either a passport or drivers licence, and even if I did, in today's society about taking care of our personal information, I am not happy in sending in the post anyway.

 

I am sure that an alternative compromise can be sought, either you accept I am who I am, or you can offer me alternatives that I will find acceptable. If this cannot be resolved I will contact the Information Commissioners Office.

 

I look forward to hearing from you in writing within the next 7 days.

 

Yours faithfully

[sunflower99]

Hi Mitzbag!

I sent them the above letter! when they tried same tactics with me of not sending my SAR and requesting passport driving licence! I

[sunflower99]

if you send them that above letter.They normally write back to you inviting you to phone their compliance dept and do security checks over phone!and then send SAR request

[sunflower99]

When i did it all they asked me for was MBNA acount number mothers maiden name and date of birth.The lady who took call was very pleasent and polite and they did eventually send SAR .

[pudsters14]

Can some one please have a small look over this defence for me. It's being taken into court 2mrw and I could just do with opinions... have i left anythin major out etc.... it isn't quite finished tho.....

 

Thanks... Pudst x x x x

 

_______________________________________________________________

 

 

In the XXXX County Court

Claim number - XXXXXXXX

MBNA Ltd - Claimant

 

and

 

Mitzbag - Defendant

 

 

Defence

1. In this Defence, the Consumer Credit Act 1974 as amended is referred to as “the Act”. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 are referred to as the “Copies Regulations”. The Consumer Credit (Agreements) Regulations 1983 are referred to as the “Agreements Regulations”. The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 are referred to as the “Enforcement Regulations.”

 

2. I, Mitzbag, am the defendant in this action and make the following statement as my defence to the claim made by MBNA Ltd.

Background Information

3. At the point where my previous defence was required I was not in possession of documents from the claimant (In the build up to this action, I had raised a formal dispute with MBNA Ltd and later on Restons Solicitors. On 16th November 2007 and 14th November 2008 I sent a request under section 78(1) of the Consumer Credit Act 1974 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. I requested the claimant supply this information within 14 days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents. MBNA received the first request on 17th November 2007 by recorded delivery and I hand-delivered the second request to Restons Solicitors. The claimant has so far failed to send me the full and required information and Restons Solicitors have refused to deal with my request. A copy of the request dated 16/11/07 is attached to this defence marked BAG01 along with proof of postage, marked BAG02. A copy of the request made to Restons Solicitors is also attached to this defence marked BAG03 and Restons' response is attached marked BAG04.).

 

These documents were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules.

 

 

4. The claimant failed to supply the requested information within the requested time frame so accordingly I could only file a minimal defence. The claimant was indeed very obstructive and each time I requested this information, the claimant failed to correspond with me. However, the claimant has now supplied some of the requested information, and now after consideration of the documents which have been supplied I can now make an amended defence to the claimants particulars which takes into account the information I have been sent.

 

5. On xx/xx/xxxx the claimant refused my request under the Civil Procedure Rules and has since still only provided me with very minimal documents. As a result it has still proven difficult to compose this defence without disclosure of the information requested, especially given that I am litigant in person.

 

6. After consideration of the documents referred to in point 4 I consequently question the allegations made in the Claimant’s Particulars of Claim and accordingly place the claimant to strict proof that I am indebted to them thereof.

The Transactions on the Account

8. The transactions on the account are not admitted nor denied. The defendant does not recall the specific transactions on the account, particularly the big transactions for example the £5000.00 credit. The defendant has written to both his current bank, his bank at the time and MBNA for further clarification on this matter. (Exhibit BAGXX is the subject access request to Halifax, BAGXX is the subject access request to Lloyds TSB, BAGXX is the subject access request to MBNA, BAGXX is MBNA’s response and BAGXX is the latest correspondence from the defendant to MBNA regarding this matter.)

 

9. As you can see from BAGXX (MBNA’s response to the defendant) trying to get any information from the Claimant has proven very difficult and therefore has hindered a lot of the court process for the defendant especially as they are litigant in person.

 

MBNA’s responses to s78 request defective

 

10. It is submitted the credit agreement supplied falls foul of the Agreements Regulations in so far that the document supplied as an executed Credit Agreement is actually some form of application form. This has a reference number on it that does not link up with any other of the documents, for example the statements that have been supplied. There is no apparent link between the documents at all.

 

9. If MBNA are to rely on their responses to the Defendant’s s78 requests, they were defective in the following ways:-

 

(a) The response on 20/12/2007 was defective because a statement of the account was provided as required by s78(1) but it did not include a statement of “the amounts and the due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor” [as required by s78 (1)© of the Act.]

 

(b) The response on 16/12/2008 was defective because

 

(i)Again a statement of the account was provided as required by s78(1) but it did not include a statement of “the amounts and the due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor” [as required by s78 (1)© of the Act.]

 

(ii) They sent a set of terms and conditions which looked to be the latest ones, however, there was no explanation as to whether they applied to the account and what dates.

 

(iii) This reply also failed to include any of the other financial particulars as required by s78 (1) (a), s78 (1) (b) and s78 (1) © of the Act.

 

10. Further more the defendant requires clarification on the status of the original agreement, the defendant requires the claimant provide a certified copy of the original agreement. If the document is no longer in existence the defendant requires certification of destruction and furthermore the defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document and also require written clarification that any copy document produced is authentic. The defendant notes that the Civil procedure rules also require the original documents to be made available under practice direction 32.

 

Default Notice Defective

10. In addition to the credit agreement being flawed, the default notice served under s87 (1) of the Act failed to comply with the Enforcement Regulations.

 

11. On 13th October 2008 I received a letter from MBNA Limited. The letter was headed Default Notice served under section 87(1) Consumer Credit Act 1974. The notice clearly states that the breach is of ‘clause 8’, however on the application form/alleged agreement there is no ‘clause 8’. Thus this goes against the provisions of the Enforcement Regulations, Regulation 2(2) schedule 2:-

 

(i)Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

 

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

11. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Enforcement Regulations it would render the default notice invalid. I quote the comment of KENNEDY LJ:

‘This statute was plainly enacted to protect consumers, most of whom are likely to be individuals‘;

The judgment appears confirm the consumer credit legislation made under the Act as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Enforcement Regulations could unduly prejudice me as it failed to properly identify both the part of the alleged agreement breached (section XX doesn’t appear on the alleged agreement provided).

41. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

14. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received.

 

15. The defendant also requests that the court order the claimant to disclose a list of all charges made to the account and a list of the costs associated with each charge for the last six years to prove that the alleged debt amounts to the amount claimed. The defendant also respectfully asks for documents related to any insurance added to the alleged debt.

 

16. Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. The defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974.

 

Conclusion

42. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

13. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to show the exact link between documents and explain why they are quoting a section of the alleged agreement that does not exist in the paperwork provided. Without this information the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

44. As laid out in point 24 the defendant requires that the claimant provide the requested information and proofs and authenticities. The defendant requests that the court order that the claimant supply the information requested.

 

17. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

18. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in 20/02/2006 the Consumer Credit Act 1974 is the relevant act in this case.

 

19. The defendant respectfully asks the permission of the court to further amend this defence when the above documents are provided by the claimant.

 

Statement of Truth

 

 

I, Mitzbag, believe the above statement to be true and factual.

 

 

Signed - ..............................................

 

Date ....................

 

 

 

 

[pudsters14]

Oh and i know all the nums are wrong... lol

 

Plese give me your opinions... thanx

 

Pudst

x x x

[supasnooper]

You'll need to oppose the claiming of s69 interest as claimed in their POC -

 

In opposition, I point the Judge to the County Courts (Interest on Judgment Debts) Order 1991 which clearly states at Page 2, paragraph 2(3)(a) -

Interest shall not be payable under this Order where the relevant judgment is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974.

Edited April 26, 2009 by supasnooper
added detail

[pudsters14]

Brill thanx SSnooper... i also need to appose their costs as well because it wouldnt have got this far if they had complied with the requests etc.

 

Does it look okay other than that? Does it need beefing up anywhere?

 

Pudst

x x x x

[pudsters14]

Defence has been submitted to court... Restons next....

[pol76]

subbing

[supasnooper]

Hi Puds,

 

Defence looks ok. As long as you have defended against their point you'll be okay.

 

Would be well worth taking a copy of the relevant Laws with you to court to show the judge.

[pudsters14]

Thanx SSnooper, this is mitzbag's case... i am just helping out this time... makes a change lol!

 

We will take the relevant cases with us. The judge at the summary judgement hearing said that once the amended defence is received, he will then give further direction to restons/mbna about them providing the information queried such as the link between docs etc so not sure when the actual hearing will be (restons person also said that they may decide not to pursue it)

 

Thanx for all your help!!

 

Pudst

x x x x

[underdog13]

(restons person also said that they may decide not to pursue it)

 

Pudst

x x x x

 

Here's hoping they don't pursue it - a nice wasted costs order:D

[mitzbag]

Update

 

Restons Received Defence They Are Quiet At Moment, And The Court Got Defence It Is Waiting For Judge To Look At It And Decide Next Steps.....

[pudsters14]

sorry not been on for a while, Restons got a ccj and charging order against me. Can they charge me interest on the debt now?

[underdog13]

Pudsters, I'm so sorry to hear this - sincere commiserations. I didn't think they could pursue s69 interest; hopefully someone with more definite knowledge will be along soon.

[supasnooper]

They can charge interest if the original agreement contains such a condition.

 

s69 interest should not be payable but if a judge has awarded it, then it is too late to get it rescinded.