MBNA/Abbey-help please **WON**

[tiokim]

Hi all,

 

I have being reading this forum for some time now and have found this place to be very helpful and friendly. I am having similar problem with MBNA/Abbey/Restons as those faced by STAYINGCALM. I have followed his thread with great interest over the months and I was very encouraged with the positive outcome (fantastic help form PT2537 and X20, I learned so much with you guys)

 

I would be very grateful for help and advice with my defence as I am not very good with legal proceedings and I do not feel totally confident about how best to approach my case and I am not sure that what I have done so far is totally correct.

 

 

Brief details:

 

Abbey (MBNA) credit card issued 2002

 

 

January 2008- Sent letter with my Personal budget sheet and my pro rata offer of payments based in what I could afford.

 

February to August- the usual MBNA bombardment of letters and phone calls.

 

September- Mbna issued a default Notice (No 14 days allowed after serving) –will post DN later

 

 

I sent a CCA request and received within days, a poor copy of my credit Agreement, together with the present terms and conditions for the account and my latest statement.

 

 

The Agreement (application form)

 

No prescribed terms on the front where it was signed by me. The back of the agreement has a box with the term financial related conditions with apparently the prescribed terms present, however it looks to me as if that vital box were placed there at later date, but can’t be sure, considering that the copy looks like a re- construction of a microfiche or maybe a fax copy. The other strange feature about this box with the related conditions is that it is placed in the only blanked area on the back page of the application and it would be visible after the application was folded and glued together considering that it is just under Abbey self-addressed freepost mail envelop. (Maybe they feel the postman should check that those related conditions should be present before delivering it to them)

I will post the copy here later

 

October- sent a letter (commonly found in CAG) stating that copy of the agreement received does not comply with the provisions and has not been properly executed and does not have all the prescribed terms and format, etc etc and goes on to say… if you or you representatives try to legally enforce this debt or threaten action against me without a properly executed agreement etc, etc.

 

Sent a letter to Abbey with my latest budget sheet (sent to all my creditors) with an offer of token payment of £1 according to what I can afford at present.

 

Received a letter form Debt Clear Recoveries and Investigations ltd asking me call them (fat chance) to discuss arrangements for this debt (a secure loan was suggested)

 

Received another letter from the same lot above with a generous offer

 

Received a letter from Abbey confirming that the agreement that I have entered with them was valid and enforceable.

 

 

November Received a letter from Restons claiming immediate payment of the outstanding balance and a blank financial statement form to be filled by me. The letter demands the money by a certain date or legal action would be issue against me.

 

Sent a letter informing that I would not be in a position to pay the total amount and that my letter sent in October was a true statement of my financial situation and that it was not necessary to fill another financial statement form sent by them. I also informed them that I could not increase my offers of payment at present. I told them that if they decided to bring proceedings against me, I would draw to the courts attention the fact that the agreement which a copy was sent to me was in my opinion unenforceable and that I would require the courts opinion about its enforceability.

My letter also informed that I would welcome the chance for a judge to look at the copy of the agreement considering that I had doubts about the way it was reconstructed and the potential for interpretation of being misleading.

 

 

Received a letter from Restons stating that they received instructions to commence legal proceedings forthwith

 

 

---------------------------------------------------------------------------------------------------------------------------------------------------

 

Received claim form from Northampton Court:

 

Claimant: MBNA EUROPE BANK

 

Address for sending documents: Restons….

 

Defendant: Tiokim

 

Particulars of claim:

The claimant claims payment of the overdue balance due from the defendant under a contract dated on or about xx/xx/2002

In the sum of £16xxx.xx

 

Xx/xx/2008 interest £3x.xx

 

Total: 16xxx.xx

 

Together with:

 

Interest pursuant to s69 county court act 19

At the rate of xxx.00 pence per day

To the day of judgment or sooner payment

Signed: Restons

 

No particulars of the claim

------------------------------------------------------------------------------------------------------------------------------------------------=

 

Submitted acknowledgment of service form to court by internet (Money claim) = defence has to be filed before 17/12/2008 in court

 

 

 

Sent a letter with request for information under CPR to Restons.

 

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

 

Sent a “cards on the table approach to litigation letter” to Restons (suggested by X20 on Stayingcalm thread)

The letter in resume says:

Chance to withdraw from proceedings and save me costs since your client has no prospect of succeeding because:

a) DN notice is defective

b) The agreement leaves the impression that the prescribed terms have being added later (so should be unenforceable)

c) The need for them to present the original document in court

d) No particulars of claim or the method the claim was calculated. Substantial part of the claim could be made up of illegal charges

 

Gave them 14 days to discontinue proceeding and save me costs.

 

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

 

Received a letter from Restons informing that my CPR request was inappropriate and that the Client had already supplied a copy of the agreement.

 

 

That is it so far. Sorry to give you so much information at once. Hope someone can find the time to help me please.

[citizenB]

This does appear to be very must the same as Staying Calm's situation doesnt it.

 

You have some time in hand so hopefullly, those who were able to provide SC with excellent help will be able to assist you.

 

Your document seems to be similar to a lot of blue peter productions that are floating around the forums at the moment, however if you are able to scan in and post it hear, we will be able to see for sure. Remove any identifiable information and any barcodes that are present.

 

Photobox is free to register

 

Image hosting, free photo sharing & video sharing at Photobucket

[car2403]

These are also very similar circumstances to the claim against me from Reston's with HFC - suggest you read through that, aswell, as it shows how to make an application to have the claim struck out for not having sufficiently particularised details on the claim form.

 

I also had a faulty Default Notice, but be aware that many "copies" came to me, claiming to be originals - they weren't and that is what the claim turned on.

 

There are other similarities too, but I won't outline them here. My defence and counterclaim are definately things that you want to review

 

Reston's may never learn their lesson, but the fact you're fighting back means you are off to a flyer against this lot. Solicitors! I don't think so...

 

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

[noomill060]

Just checking in to say welcome to CAG

[tiokim]

Hi all, thanks for your good sugestions!!

[tiokim]

Have sent this letter to Restons today as they have considered my previus CPR request inappropriate (sugested by X20 in another thread and have adapted to my case)

 

CPR 31.14 Request

 

 

 

On **/**/2008 I received the Claim Form in this case issued by you out of the Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest your entire claim.

 

You are claiming for a balance due under a contract dated **/**/200*, which is regulated by Consumer Law and on which you rely.

 

I can confirm having received an alledged true copy of my credit agreement sent by your client and that your client has fulfilled their obligation in accordance with s.78 of the CCA 1974

 

Prior to the issue of proceedings by your firm I have written to you a letter (dated **/**/2008) in which I have expressed my personal concerns and doubts about the integrity of that copy, considering that it leaves the impression that information has been added to it at a later date.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the document mentioned in your Particulars of Claim.

 

You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

You should ensure compliance with your CPR 31 duties and ensure that the document I have requested is copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

 

Further, if the original of which is now in the possession of another person, you will have a right to possession of that document that is mentioned in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s), which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request

 

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

Edited November 24, 2008 by tiokim
to correct an error

[citizenB]

you might find the thread below to be of some use to you.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162535-documents-court-civil-evidence.html

[tiokim]

Thanks citizenB great Info!

[tiokim]

Does any one know if your case fails in court, can the payment of the sum due still be made by instalments according to what you can afford?

[surfaceagentx20]

Where a judgment for the payment of money has been made, the judgent debtor may apply to the court and invoke the court's discretion to vary the direction for the satisfaction of the judgment by imposing an instalment order. The procedure is set out at CCR 22 r10 and the aplication is made using Form N245.

 

x20

[tiokim]

thanks X20, Is good to know that

[tiokim]

Bump

[car2403]

Ok, so you've filed your acknowledge of service and now have to file a defence. You can't file a sufficient defence, based on those POC being insufficient, so you have two options - you either file a holding defence, putting them to proof of their claim and the basis it is brought on, or you make an application to have their claim struck out on the basis that the POC are insufficiently stated.

[tiokim]

Thanks Car, I think I will go for a holding defence. I have sent a cpr31.14 and the 7 days are up late this week, plus my letter. Can I give the court directions for more information at same time I file my holding defense?

[tiokim]

any sugestions for a holding defense?

[creditcardmug]

Hi, what date must your defence be filed by? can you post up the agreement and Default Notice?

 

On the agreement, you say the prescribed terms are not on the page you signed, does it say on this page where the terms are to be found i.e. overleaf?

 

I will have a bit of time thurs/fri to help with a defence.

 

You get to make your Draft Order for Directions at the next stage, Allocation Questionaire

 

They cant have s69 interest in any event, as this is under the CCA.

[tiokim]

Thanks Creditcardmug, defence should be in before the 17th. I am trying to find a scanner, but no luck so far. I will try to take a picture, but not sure that it will work.

My main concern is that I sent them a letter given them a chance to discontinue before the 5th due to the no chance for MBNA to win. I Notice in Car2403 thread that if they discontinue before i file a defence they can sue again without courts permission, so I may be taken a risk. would be nice If you can help me. I think just a very short holding defence that does not leave me open or give them a chance to use it against me would be fine.

[car2403]

Wait...

[tiokim]

The 7 days time for a response to my CPR 31.14 request was up yesterday. My original CPR request was considered inappropriate so no reply. No particularized details on the claim form or any documents attached. Is this real or what? Is this firm above the law?

[car2403]

Wait...

 

Sorry - I was reviewing the thread to give you some more advice, but got distracted with another thread and never made it back...

 

The 7 days time for a response to my CPR 31.14 request was up yesterday. My original CPR request was considered inappropriate so no reply. No particularized details on the claim form or any documents attached. Is this real or what? Is this firm above the law?

 

Well, no, but then you can't force them to comply with either request - what you can do, if you wanted, is to make an application to the Court to order their compliance with your request.

 

IMHO, that isn't justified at this stage and would likely stall proceedings as it would result in an application hearing to here the application (!) and the Judge would be unlikely to award that order. He would be more likely to issue further directions for how the claim is to progress. This is something that should happen automatically without the application, hence the reason I think it's a waste of time/money at this stage.

 

What I have thought of though, and I can't tell you what to do or not do, obviously, is that you need to enter a defence based on the information you've already posted in this thread. So, you've made a CCA request and haven't had a correctly executed credit agreement back, for the reasons you've stated above. This should be your defence to the claim. I was mistaken to suggest a holding defence, as they have complied with your request, it's just that they are still in default of that request as they haven't supplied a correctly executed agreement.

 

Does this make sense now and is this relevant to your defence? If so, i can have a look at constructing the defence, but we really, really need to leave this as long as possible to get it spot on - I'd suggest taking the defence to the Court yourself on the day it is due, to give maximum time to ensure it is a fully prepared and well thought out defence. If we get this wrong now, it will cost more time/money in the long run...

[tiokim]

Thanks Car. you are probably right. No point in doing things that cost money and don’t deliver results. OK lets go for a defense . I Can’t deliver it in person to Northampton, I live in surrey, so it would be a bit difficult but could send it by special delivery guaranty next day. My concern is also with the unlikely possibility that they discontinue this proceedings before I file my defense. Creiditcardmug is also willing to help with the defense so together we should be able to have something good.

[creditcardmug]

Theres no way they are going to discontinue without seeing your defence mate, why should they they dont have to pay anything more to see it and weigh up what they are up against.

 

You have until the 17th so just chill, what happens is they look at your defence, and then decide whether to continue, if they do they have to pay a allocation fee (more money) this is the point they usually give up if their case is weak, and yours is good.

 

We can have a go at the defence tomorrow im a bit knackered tonight, but not working tomorrow.

 

You can send it by Sd 2 days before

[tiokim]

Hi Creditcardmug, thanks for your interest and help.

The reason I am considering the vague possibility that they could discontinue is because of the letter I have sent them below(Adapted to my case but was originally sugested by X20 in another thread)

 

 

I preempt all their arguments, based on letters sent to Stayingcalm by them

 

 

 

I am in the process of preparing my defense and I am now considering legal professional advice. Before incurring into further costs, I would like to give you an opportunity to consider withdrawing from these proceedings. I am giving you this option since it is very obvious to me that your client has no prospect of succeeding at trial.

 

 

I am sure that Restons solicitors is aware that your client has some basic legal obstacles that prevents the enforcement of this agreement, I will list the ones that are apparent to me after my preliminary researches:

 

A) The default notice that MBNA has served me is ineffective considering that it did not allow 14 clear days after service to remedy the alleged breach of contract (considered servedsecond working day after posting). The wording of that default notice is also not in accordance with the prescribed form as laid out in schedule 2 of the consumer credit regulations (enforcement, Default and termination notices Regulations 1983 SI 1983/1561)

Subsequently your client has terminated our agreement and has made demand for earlier payment of the full balance, however an ineffective default notice prevents your client to any entitlement, contained in section 87(1) of the consumer credit Act 1974.

I am aware that it may be theoretically possible for you client to serve a fresh default notice but it is my understanding that it would not be effective for these current proceedings considering that it is based on the present default notice.

 

B) The credit agreement of which MBNA has sent me a copy, looks like a re-construction exercise of a microfiche copy and as already explained to you before your commencement of these proceedings, it leaves the impression that the important prescribed terms (schedule 6 column 2of the CCA regulations 1983) are not contained within the agreement and that it may have in my opinion been placed on it at a later date, probably during this apparent montage.

I am aware that MBNA is not under any obligation to present in court the original agreement, as there is no provision in the consumer credit legislation for that, however your client will find obvious problems to convince the court that the copy sent to me is true to the original that has been signed by me. I believe that this would also fall short of the rules of evidence in court and I believe that the court would also have powers to demand your client present the original document, considering that it would be a crux point of my defense.

 

C) Your particulars of claim do not demonstrate the method the claim was calculated for the outstanding sums due. I now understand that the regime of fees which both Abbey and MBNA have being applying to my account in the past in relation to late payments, credit limits and so forth are unlawful at common law (OFT reported 5th April 2006) and contrary to consumer regulations. I believe that a substantial part of your claim is made up of these charges with added interest over the years.

 

I am sure that your client holds enough evidence that an account in my name exists and that money has been spent from it and it would be unnecessary and irrelevant to deny or to admit this. However, the fatal errors and mistakes that your client has committed during the execution of that account agreement and subsequently the issue of an invalid default notice not only has prejudiced my rights as a consumer but now prevents your client to exercise any rights or benefits to enforce in court an early settlement of the full amount.

 

If your intentions are to continue these proceedings in court only as a way to pressure me to offer a more advantageous settlement proposal to your client, it would be to no avail as my present financial circumstances make this impossible.

 

Considering all the above and that I have now very limited time to file my defense in court I would like invite you to file and serve a Notice of Discontinuance of the proceedings not later than xth December 2008.

 

This letter has been delivered to you on an open basis and in pursuance of a 'cards on the table' approach to litigation. If you should contend that my reasoning is flawed and there are good grounds to suppose your client will succeed at the trial of this case, you are required to outline those grounds in order that I might further consider my position.

 

I am thinking about basing my defense in one made by PT2537, My case is very similar to Stayingcalm but in his case they never sent the CCA. I have IM Peter about using his work adapted to my case, but I think he is not around at moment.

 

I will post that defense soon so you could have a look?

Edited December 4, 2008 by tiokim

[creditcardmug]

Hmm... i haven't seen this approach tried before, its basically telling them in advance what's going to be in your defence. how long did you give them to reply?

[car2403]

You can fax your defence to the Court the day it is due.