MBNA/Restons court claim form

[pol76]

Hello Folks

 

Well i have got home today to find that i have a court claim form from Northampton county court

 

I am very suprised about this and am at a loss of what to do now so if anybody could help it would be great

 

I have asked for a cca from mbna the copy they sent was very poor and in parts could not be read but by looking at other cca's

 

1/ it does not show interest

2/ t&c are new on seperate sheets

 

I had a phone call of an asian female saying she was from mbna she was very rude saying that if i did not make full payment of all the debt then and there bad things would happen to me (at this point i loss the plot and asked her like what will mbna come to my house and murder my family) she again said bad things would happen i then put the phoine down

 

20 seconds latter another call again saying from mbna i informed them that i could not pay full amount but offered £70 a month

then heard nothing till i got a letter from optima legal about wanting arrears

i called them and explained that i could not pay but made an offer i also sent them a letter saying that i wanted a true copy of my cca

 

nothing back from anybody till i got home and found the court form

 

ISSUE DATE 13Feb 09

 

The Claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about 30/03/1998 in the sum of

£9110.49 inclusive of interest to the date of this summons at 8% per annum from 02/02/09 to 12/02/09

 

02/02/09 default balance 9090.56

12/02/09 interest 19.93

total 9110.49

 

Together with

Interest pursuant to s69 County Court Act 19

at the rate of 199.25 pence per day to the date of judgment or sooner payment

 

I was shocked to get this form so the big question is what do i do now to defend this case

 

I made 2 offers both refused i admit i should have sent it in writing after being refused by phone but i was in the frame of mind sod them

 

I am waiting my SARS return from them because i will be claiming back charges made against this account

 

Any help would be great i am not yet in panic stage i know alot of folk around the world are worse off than me at least i have a secure job but like many families money is realy tight

 

all the best

pol76

[pol76]

The T&Cs are not from the original time they state £12 charge

show no interest and cannot be fully read looks like a microfiche copy

here is my reply to the bad cca

 

MBNA Credit Card

Chester

CH49FB

 

Account In Dispute

Ref:

Dear Sir/Madam

 

Thank you for your letter of , the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On 19/09/08 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on 24/10/08

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

And

 

(b) If the default continues for one month he commits an offence.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

 

 

Keep smiling

pol76

[pompeyfaith]

Im in court on the 3rd march with optima/mbna and in my case they say the tand c you mention i.e the latest ones are my agreement even though there is no signature boxes and no signatures.

 

the agreement they first sent to me with my signature i responded by saying as there was no clause 8 the DN is nonce.

 

So now they are saying the t and c which are not the historical ones is the agreement.

 

Sorry am i confusing you they did me lol

 

Have a look here from page 10 it may forewarn you on what is about to happen

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/151709-help-10.html

 

Regards

 

Pompeyfaith

[pompeyfaith]

Oh and another word of warning Optima Legal do not follow CPR RULES abuse of procidure is rife with them

 

I sent a CPR PART 18 in July 08 and they did not respond to it until 30 December 08

[pol76]

Optima passed everthing back to MBNA it is Restons that are involed with the court case but thanks for the link i will have a look asap

 

cheers

pol76

[pol76]

Ok so i need to defend this case at the moment regarding the court paperwork what do i but for my Defence and Counterclaim i do not at this stage know how much they owe me and if they will pay up or go to court over the charges this all takes time so what do i do

 

i had alook on the link and do i send this to restons now or wait till the court sends me some more paperwork

 

 

In the Northampton County Court

Claimant -v-

Claim Number:

 

 

Dear Sir/Madam

 

REQUEST FOR INFORMATION CPR 18

 

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. 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.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2 (1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8 (1) (b) of the Act, including but not limited to:

 

(a) A copy of the procedure(s) used for copying, storing and retrieving documents

(b) A copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© Copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) Copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process (es) comply with the appropriate quality standards

 

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 MBNA Europe Bank PLC.

 

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted.

d. 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.

e. 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.

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

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

h. 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.

 

Yours sincerely,

 

 

cheers

pol76

[e28bigalbexley]

Hi ya

Send now registered post so you can track when they recieved it.

 

AL

 

And dont forget to aknowledge the claim.

 

And re your letter to mnba the ' after 30 days he commits an offence ' no long stands, so remove it. But they are still in default and only a court can enforce the agreement, thats if they have the original of course, which they would have to show to the judge.

Edited February 20, 2009 by e28bigalbexley

[Docman]

Hi pol

 

You need to acknowledge service of the N1 claim form that you received from Northampton County Court. You have 14 days after service which is deemed to be 2 days after the date of the claim. I work that out to be around 2 March. You can acknowledge on line if you can.

 

You then have another 14 days to submit a defence. In order to do so, you will need further infomration from the claimant. The letter headed CPR 18 is OK but now that a legal claim has started you may be better to ask for a copy of the agreement and the default notice using a different rule, CPR 31.

 

Can you clarify one point though? You have referred to MBNA, Optima Legal and Restons. Who is actually named as the claimant on the N1 form from the Court?

[creditcardmug]

Make sure when you acknowledge that you will be defending ALL of the claim

[tiokim]

subscribing

[pol76]

Cheers so far boys and girls

 

The claimant Restons that is the name on the court form

 

What do i have to do to acknowledge the claim and what do i but in the Defence part of the claim form

 

All the best

Pol76

[pompeyfaith]

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

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

 

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 each of the following documents mentioned in your Particulars of Claim:

 

1. the agreement. 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.

 

2 the default notice

 

Your client should ensure compliance with its CPR 31 duties and ensure that the documents I have requested are 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, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and 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.

 

Ok once you have acknowledged the claim use the above CPR 31.14 as opposed to the CPR 18 as it adds more weight to getting the requested information.

[pompeyfaith]

Forgot to add if you wish to find out more about CPR 31 and its various parts of it or indeed any of the CPR RULES here is the link

 

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS

 

Regards

 

Pompeyfaith

[creditcardmug]

The claimant is not restons, they are the solicitors acting, who is the claimant on the front of the claim form?

 

You can acknowledge service on line, using the password on the front of the claim form, make sure you tick that you will be defending all of the claim, you dont need to file a defence yet, this will give you an extra 14 days

[pol76]

Pompey cheers for the section31 info i have a bit of reading to do

 

the claimant is MBNA sorry i thought it was restons but the are only acting for MBNA

 

In regards the space on the court claim form thats says defence what do i but in that section

 

Perhaps i should copy it on here some how

 

cheers for keeping me smiling

 

pol76

[pol76]

Sorry Creditcardmug i will try the online system and just tick the box

 

cheers

pol76

[DocH]

In regards the space on the court claim form thats says defence what do i but in that section

 

Perhaps i should copy it on here some how

 

cheers for keeping me smiling

 

pol76

 

There is no need to worry about the defence just yet. If you are using the CPR 31.14 to request documents from Restons, then you are going to be restricted to just asking for a copy of the agreement, because that is all that is mentioned in the POC. This thread explains the ins and outs of a CPR 31.14:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

Surfaceagentx20 has written this post within the above thread when the defendant is up against a POC which only mentions one document and the use of CPR 18:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-6.html#post1833360

 

If you get no response from the solicitors or they refuse to respond to your CPR request then you'll be filing an embarrassed defence. As you are fully defending the claim you have a total of 33 days from the date of the claim in which to file your defence.

[pol76]

Well i have read the section on sec31 and surfacex20 post very well put together and i think i understand

 

1/So i have to acknowledge the claim ASAP

 

2/Then CPR 31.14 Restons ASAP and then just wait their reply because at this time i cannot but a defence in due to the copy i have of my CCA sent by MBNA is not readable and the T&C's are new not from the time i tookout the card

 

I have sent SAR off to MBNA so waiting responce from that

 

Thank you all for the advice, support and information

pol76

[pol76]

I have sent off the 31.14 request to Restons and have sent the court papers back all by registered post so now just waiting

 

cheers

pol76

[creditcardmug]

Hi again, what court papers have you sent back? you dont need to send anything if you acknowledge online

[pol76]

Hello Creditmug

 

I could not do it online for sum reason so just sent back the part that said i was going to defend the whole claim ticked the box

 

cheers

pol76

[pol76]

Well i have had court papers back they want to know if i am defending this claim this is due to not putting in a defence

 

They have processed my Acknowledgement of Service and are now 28 days rather than 14 days from the date of service (18 feb 09)

 

I take it this means i have 28 days to but in a defence?

 

Still no reply from Restons so how will i but in a defence without knowing what Restons have got

 

all the best

pol76

[Docman]

Hi pol76,

 

Yes, you have another couple of weeks to file a defence. In theory, Restons should provide you with the documents to back up MBNA's claim in time so that you can file within 28 days. In reality, they won't.

 

Restons should have filed a copy of the agreement with the claim but a let out in the rules means that when they file electronically through Northampton, they don't have to supply documents to the court. Firms then extend that exemption and don't supply anything until pushed to do so.

 

You will have to draft a holding or 'embrassed' defence (as it is referred to by some CAGgers, because you state you are 'embrassed' to plead to nothing). Have a look at other threads to see if there is anything that fits your circumstances and come back for any more advice.

[pol76]

I'm still looking for a defence how do i have to put one in straight away or can i wait a bit longer and see if restons reply

 

cheers

pol76

[creditcardmug]

Well i have had court papers back they want to know if i am defending this claim this is due to not putting in a defence

 

They have processed my Acknowledgement of Service and are now 28 days rather than 14 days from the date of service (18 feb 09)

 

I take it this means i have 28 days to but in a defence?

 

Still no reply from Restons so how will i but in a defence without knowing what Restons have got

 

all the best

pol76

 

I dont quite understand "they want to know if i am defending the claim", can you post up that letter?

When you acknowledge, you do so saying you are defending all or part of the claim, so theres no need for them to ask this!, most unusual.

Can you elaborate?