Marlin / Arrow / MBNA Court Claim - Help Needed Please

[Mrsmancmonkey]

Merry Christmas and a Happy new year to all.

 

My mum has today (christmas eve) received court claims from the above disputed debt and this is the first DCA which has taken any of her debts any further.

 

The debt is a credit card opened in 1999.

 

MBNA has received a CCA requests over a year and a half ago and at the time all that was provided was an application form which didnt have any prescibed terms etc. And they basically said that they didnt need to provide a copy of this and that by law they are allowed to omit signatures etc.

 

She has had another DCA involved however they then passed this onto Marlin or Arrow (not sure who as they both kept sending letters). We replied with two letters throughout the course of the last few months with the normal template letters on this site about original creditor not providing a copy of a CCA and that they shouldnt have been passed a disputed debt, however they have chosen to ignore it

 

Here is the particulars of the claim

Image of Court Claim - Photobucket - Video and Image Hosting

 

What is the first step for her to do?

 

I've read a couple of threads, but I am not sure if I should follow them as some of the defence written makes no sense to me whatsoever unfortunately. This thread looks similar as there is no CCA however do I just follow this thread or is there some nice kind soul who could talk me through the steps as reading this Im worried as it looks complicated and I dont want to mess this up for my mum and make it even worse for her

 

(http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/145452-stayingcalm-abbey-no-cca.html)

 

Also there are some disputed charges which are now on hold with the Financial Ombudsman around £500 if I remember rightly.

 

Thank you

[Mrsmancmonkey]

Just to add.

 

She has also been defaulted but no default notice ever arrived, just a letter from MBNA saying she had.

 

And will this be dismissed before it goes to court as Im ok at following things spelt out to me but am panicking now as dont want her to be in an even worse situation.

 

Thanks

[reallymadwoman]

1. Have a look at the image you've posted - you've left in the amount being claimed in the Particulars of Claim. I would delete it and repost.

 

2. There's a template letter somewhere asking for copies of all the documents they are going to rely on. At the very least you will need to ask for the agreement (and I would ask them to confirm that the original will be available in court), the default notice and the notice of assignment. Get that letter off as soon as the Post Office is open again, by at least 'recorded - signed for'.

 

3. In the meantime acknowledge service of the claim and say you intend to defend all of it. There should be a password somewhere in the paperwork for you to do it online (I think, I've never actually done this) or failing that fill in the acknowledgement that came with the claim and send it back a.s.a.p. That will give you an extra 14 days to prepare your defence.

 

4. Your defence should be due in 28 days after service of the claim. If you're not sure of the exact date, phone the court and ask. The actual defence will depend on what, if anything, Mortimer Clarke send back so you can't actually do much else at the moment.

 

5. Do Mortimer Clarke/Arrow/Marlin know there's a claim with the FOS? If not, tell them when you ask for documents. If they do, I think it might be 'abuse of process' to issue a court claim whilst the FOS are still dealing with her complaint. Incidentally, if it's a credit card it shouldn't be on hold. I would write to the FOS and point out the claim is for credit card charges not current account charges, and tell them that a court claim has been issued.

[Mrsmancmonkey]

Hi

 

Thank you for your prompt answer.

 

Whereabouts on the claim please are you talking about for the amount as I've just checked again and cant see it.

 

I will get her to point this out again and mention that they have filed in court now - thank you for that. I hadnt pressed before this as didnt want her to acknowledge the debt by asking for the money back if that made sense. To begin with when I first started using this site it was just for her charges then realised she could CCA route, so ended up following that.

 

I've done this letter to them, just found it, is this the correct one?;-

 

Mortimer Clarke

2nd Floor

16-22 Graton Road

Worthing

West Sussex

BN11 1QP

 

In the Northampton County Court

Claimant -v-

Claim Number:

 

 

 

Dec 24, 2008

 

Dear Sir/Madam

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

 

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998.

 

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

 

Will log onto the court claim now and defend it

Thanks x

[postggj]

hi keeksta

 

no panic as you have 14 days to acknowledge the claim

[Mrsmancmonkey]

Ps

 

There is no password so will send this by fax and post after Boxing Day special delivery.

 

And she waits to put the defence in, just sends it off stating that she wishes to defend all the claim?

[reallymadwoman]

Hi

 

Thank you for your prompt answer.

 

Whereabouts on the claim please are you talking about for the amount as I've just checked again and cant see it. In the particulars of claim 'and the claimant claims £xxxx'

 

I will get her to point this out again and mention that they have filed in court now - thank you for that. I hadnt pressed before this as didnt want her to acknowledge the debt by asking for the money back if that made sense. To begin with when I first started using this site it was just for her charges then realised she could CCA route, so ended up following that.

 

I've done this letter to them, just found it, is this the correct one?;-

 

 

Mortimer Clarke

2nd Floor

16-22 Graton Road

Worthing

West Sussex

BN11 1QP

 

 

In the Northampton County Court

Claimant -v-

Claim Number:

 

 

 

Dec 24, 2008

 

Dear Sir/Madam

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the alleged account at the time of default and at the time the alleged account was opened.

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my alleged account formerly held with ORIGINAL CREDITOR.

 

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

 

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998.

 

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

 

Will log onto the court claim now and defend it

 

Thanks x

 

RMW

[Mrsmancmonkey]

I'll try get mum to email me another one as I scanned it in at work this morning and dont have a scanner at home.

 

And one more... sorry..... once the 14 days has been and gone I come back here let you guys know then we know which appropriate defence to do?

[postggj]

ive just noticed some thing, prob not relevent but for my own clarification.

 

the claiment on the n1 form is arrow globel

they give there address as illinois

 

usa

 

can a plaintiff outside the uk issue proceedings against a uk resident subject to uk law while arrow, a us company is not

 

answers on a post card

[reallymadwoman]

If you acknowledge service of the claim, that will give you a total of 28 days to enter a defence. When they're open again and they will have received your acknowledgement, phone the court and get a definite date.

 

When you get the documents from Mortimer Clarke, then come back for more advice. If you don't get anything at all (more likely!) then ask for help with the defence about a week before it's due.

 

No need to apologise for asking questions. Especially when you're trying to help someone else, it's important that you understand what you're talking about.

[Mrsmancmonkey]

Yes thats correct its a USA address which i also found very odd as well

[Mrsmancmonkey]

Super feel a little bit less panicky and am sure my mum will be thankful as well. Thank you everyone for your advice.

 

Have a really good Christmas and will speak again in the new year x

[Docman]

Hi

 

Just so you know, Arrow Global LLC are an American outfit, so they should put their US address down on th claim form which is what they have doen. They can sue in the English courts provided they provide an address for service. This they have done by using Mortimer Clark. Again, that is quite correct.

 

By starting the claim electronically, they do not have to serve the documents on which they rely with the claim form. That's why you need to send the letter in post #4 above. You may see it referred to as a CPR 18.1 letter after the section of the Civil Procedure Rules that state what the parties to an action should do.

 

Don't be surprised if MC just ignore it!

 

You should file an 'Acknowledgment of Service' electronically within the next 14 days by going onto the moneyclaim.gov.uk website. You need to quote the case number and the password which is shown to the left of the Particulars of Claim.

 

Then you will need to draft out a defence. This should be done within a further 14 days, hence the 28 days mentioned above. Leave it a couple of weeks until mid January to see if MC respond. And relax. The solicitors will now play some basic mind games but if you keep calm and follow the advice from this site (there are some fantastic people here, far more knowledable about the legal things than me) you will be OK.

[Mrsmancmonkey]

Afterrnoon folks.

 

Mum rang court up today and they have received her acknowledgement that she is going to defend. They have told her that MC now have 33 days to get back in touch and my mum doesnt need to do anything until the Courts get back in touch with her. Does that sound correct?

 

Cheers

[Docman]

Not quite. Your Mum has a total of 28 days plus service (hence the 33 days) to file her own defence.

 

Arrow Global should provide the documents to back up their claim, especially now that you have written to them. But watch out. They may not provide the documents in time and if you mum didn't put in a defence as well, once the 33 days are up, it wouldn't be unusual for a claimant to apply for summary judgment.

 

Wait a couple of weeks and then repost anything form MC so that your mum can file a defence.

[Mrsmancmonkey]

Thats what I had thought everyone meant in the earlier posts and thought odd. 'I'll be back' (week commencing the 19th then) as Arnie would say

[Mrsmancmonkey]

Hello all....

 

The court have rang my mum today to ask whereabouts her defence paperwork is The women she spoke is the same women as before who said she would get back in touch with my mum when she needed further info.

 

Just so that you know what she sent to the court;

The first part of the form ticking and signing that she was going to defend and the above letter (copied) to show that she was requesting the CCA paperwork from mortimer.

 

Also I was going to come back here on Monday and start the ball rolling with her defence I know its two working days early however Mortimer Clarke havent responded so if possible could someone let me know what she will need to write as her defence so that I can start on it for her please

 

Thanks Keeksta1976

[Docman]

Bit unusual for the court to ring a defendant to enquire about a defence, but I supposed it's possible.

 

The three documents that Arrow/MC will have to provide to the court are (a) an enforceable credit agreement.

(b) a valid Default Notice and

(c ) a Notice of Assignment of the debt.

 

Have you posted an agreement and a DN? it may be my system but the other docs attached to the N1 you posted in #1 appear to be from Halifax and Debenhams or am I getting confused?

 

Has your Mum had a Notice of Assignment saying that Arrow Global now own the debt? If so, can you post up what she has after taking out any personal details?

[Mrsmancmonkey]

Hi Docman

 

She has only had demands from Arrow for money and then the 7 day to pay otherwise taking you to court.

 

I think the court called as she didnt send all the correct paperwork??! am not sure exactly the conversation as it wasnt me she spoke to, but from what my mum could gather is she should have sent her defence in when she ticked the box??, obviously thats not in yet as we where waiting on Arrow to send back the appropriate documentation. Then mum said that the women said she needed to get it in ASAP. So now we're both panicking that Ive done it wrong already.

 

There has never been a true copy of the agreement just an application form and I'm pretty sure she has never given me paperwork for a default notice from MBNA either although there is one on her credit file.

 

(I dont know if Ive set Photobucket thing up properly as it shows you 8 pages when its just the court paperwork to do with MBNA and Arrow sorry.)

[Docman]

You might like to consider this as a defence

IN THE NORTHAMPTON COUNTY COURTCLAIM NUMBER XXXXXXXX

 

BETWEEN

 

ARROW GLOBAL LLC

 

 

Claimant

 

 

And

 

 

 

[Keeksta’s Mum]

 

 

Defendant

 

 

………………………………………………..

 

 

DEFENCE

 

 

………………………………………………..

 

 

1. I, Keeksta’s Mumof [A LONG WAY EAST OF ILLONIS], am the defendant in this action and make the following statement as my defence to the claim made by Arrow Global LLC

2. Except where otherwise mentioned in this defence, the defendant neither admits nor denies any allegation made in the claimant’s Particulars of Claim and put the claimant to strict proof thereof.

3. 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 written agreement referred to, the method used by the claimant to calculate any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

4. A copy of the purported written 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. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present.

5. It is averred that the claimant has no right of action until such time as the default is remedied and the claimant supplies the documents referred to in point 4 above.

6. Further to the case, in an attempt to ascertain what grounds the claimant is bringing this action and to allow the defendant to prepare a defence, the defendant wrote to the Claimant’s solicitors on [xx December 2008] requested the disclosure of information from the claimant pursuant to the Civil procedure rules [CPR] 18.

7. The information requested amounted to copies of

 

(1) the Agreement referred to in the Particulars of Claim

 

 

(2) the default notice referred to in the Particulars of Claim

 

 

(3) the deed of assignment, or proof that the claimants have a legal right to claim, as referred to in the Particulars of Claim

 

 

(4) any other documents the Claimants seek to rely on in Court.

 

8. To date the claimants have failed to accede to the request under the CPR and the defendant has not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

9. The CPR clearly set out that original agreements must be made available for inspection as set out in Practice Direction 32 which states that

“13.1 Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing.”

 

10. The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The defendant requests that the claimant makes available the original agreement between parties for inspection and all other documents that are referred to within the agreement.

11. Without disclosure of the relevant requested documentation the defendant is not able to assess if he is indeed liable to the claimant, nor able to assess if the alleged agreement is properly executed.

12. Under S61 of the Act, any agreement regulated by the Consumer Credit Act 1974Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These prescribed terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating

(a) the credit limit or the manner in which it will be determined or that there is no credit limit

(b) the rate of any interest on the credit to be provided under the agreement; and

© how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-- number of repayments; amount of repayments; frequency and timing of repayments; dates of repayments; and the manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

13. The prescribed terms must be within the agreement. They cannot be in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299].

14. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order.[Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) ]

15. The claimant has not supplied the defendant with a copy of the agreement which the claimant bases this claim upon.

16. The claimants also state in their Particulars of Claim that a default notice has been served in accordance with s87 of the Act. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received.

17. S 87 of the Act clearly sets out that a default notice is a prerequisite before a creditor can become entitled to take any action in respect of a regulated credit agreement.

18. Furthermore s 88 of the Act requires that a default notice must be in the prescribed form. The prescribed format for a default notice is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

19. The Defendant puts the Claimant to strict proof that any default notice said document in the prescribed format was delivered to the defendant and that any.allegedly sent default notice was valid.

20. Further, the Defendant neither admits nor denies the Claimant’s statement that the Agreement was assigned to the Claimant but puts the Claimant to strict proof thereof.

 

AND the defendant

21. seeks an order that the claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot be enforced following the claimant’s default in failing to supply a true copy of the executed credit agreement

22. Alternatively if the court decides not to strike out the claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

23. The defendant respectfully asks the permission of the court to amend this defence if or when the claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

 

 

 

 

 

Statement of Truth

 

I, Keeksta’s Mum, believe the above statement to be true and factual.

 

 

Signed

 

 

 

 

Date

Edited January 15, 2009 by Docman
typo

[Mrsmancmonkey]

Thats perfect, thank you.

 

Will she have to go to court do you know if so do we need to ask for the court to be changed or is that later on down the line?

[Docman]

She just has to file the defnce at Northampton. The Court will then transfer the claim to your mum's local county court.

 

Regretably, Arrow will continue, even though they do not have all the docs in the hope that defendants don't turn up or they get a judge who is not familiar with the Consumer Credit Act.

 

Keep us all informed as to progress.

[Mrsmancmonkey]

Oh no ............panick stations already!! OK well I'll make sure she turns up. I'll be asking questions nearer the time about what type of questions to expect from the judge.

 

Thanks

[Docman]

Don't panic yet. That's just what they want you to do.

 

If there ends up with a court hearing, it will be weeks if not months away. And there will be plenty of help here on CAG.

[Mrsmancmonkey]

Hi well we've still heard nothing from their side and they should have responded by now as they have had the 33 days.... what happens do we just wait for the court to get back in touch?

 

Thanks