MBNA/Restons court claim form

[pol76]

Sorry for taking so long to reply but am working all the hours god sends to make money before wife is made redundant which is very likely

I but on the defence part of the form that i will be defending all the claim but also added that i was waiting information from claimant i think this is what caused the confusion

 

I had a letter from restons friday saying that if i call them that mbna are willing to cut the amount drastically i find this very hard to belive

Is this normal practice or are they not 100% sure that they have a case i still have not had a reply to my earlier request

 

Still waiting for reply to my SAR's request

 

All the best

pol76

[creditcardmug]

Dont bother speaking to restons, but do phone the court tomorrow to get a definite date for when you must file your defence by, let us know soon as

[pol76]

I will thanks for the advice

pol76

[Mydogsawestie]

Hi Pol76 your posting so mirrors mine.....I am in the same situation too, my claim tho was served to me on 13th Feb & I too have had a letter from Restons Friday offering me a special ex-gratia settlement discount figure & to get in touch. They have not complied to my CCA or CPR 31.14 requests from the Year 2000 either. The help & advice on this forum so far has really lifted my spirits in defending this and wish you every success too.

[pol76]

Mydog i think we are both in for a long battle it seems that restons/mnba never give up and will all ways go down the court road but i think this is to scare us most folk bailout before the court but i have nothing left to lose so am going all the way

 

Creditcardmug i have till the 18th of this month to but in a defence spoke with the court today. so i now need to put in a defence any help would be great i have looked at a number of threads but am not sure which to go for

 

all the best

pol76

[creditcardmug]

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

 

Is this the whole of the POC, or is there anything else?

 

 

Have you ever had a Default notice, if so can you post it up?

 

Who is the claimant on the claim form (its not restons)?

 

Have you received anything from restons since your CPR request?

 

Did you get a letter before action?

 

Can you post up the "agreement" they sent?

 

Answers to these questions are essential to prepare a defence....as this will be fast track, you will be liable to substantial costs should you lose

Edited March 9, 2009 by creditcardmug

[pol76]

Creditcardmug

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

 

Is this the whole of the POC, or is there anything else?

 

Yes this is all that is on the POC nothing else

 

Yes i have had a default notice

http://i458.photobucket.com/albums/qq308/max1969/defualt.jpg

 

 

The claim is from mbna not restons they are acting on behalf of mbna

 

The only think i have recived from restons is this

http://i458.photobucket.com/albums/qq308/max1969/restonssecondletter.jpg

 

No letter before ction recieved just court papers

 

The copy of the CCA is very very poor i cannot read parts of it and the T&C's are new stating £12

http://i458.photobucket.com/albums/qq308/max1969/ccambna.jpg

 

I have till the 18th of this month to put a defence in still no reply back from restons and still no reply to my SAR's request from mbna

 

hope this helps i am not very good with photobucket have never realy used it before

 

cheers

pol76

[creditcardmug]

Have a read of this, let me know what you think

 

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxxx- Claimant

 

and

xxxxxxxxxxxxxxxx- Defendant

 

 

Defence

 

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported 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.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

d) The claimant did not send a Letter Before Action as required under the Pre-Action Protocols.

 

5. It is denied that the claimant may claim interest under the County Courts Act 1984 S69 as the purported agreement is a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states this may not be claimed

 

 

 

6. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

 

7. Firstly I will address the issue of which Act is relevant in this case, in case it is 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

8. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

9. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

 

The build up to this action

 

10. In the build up to this action, I wrote to the claimant requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the DATE, the claimant replied to my request on the DATE supplying a barely legible document.(Attached to this defence marked Exhib1)

 

11. I wrote to the claimant setting out the facts that the document supplied did not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement and requested that they supply the required documents as they were in default as laid out in section 78(6) CCA 1974

 

12. The claimant ignored my dispute and issued a claim against me

 

 

 

The Request for Disclosure

 

13. Further to the case, on DATE I requested the disclosure of information pursuant to CPR 31.14, which is vital to this case from the claimant.

 

14. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person ( a copy of the request is attached to this Defence marked Exhib2)

 

 

The copy of the purported credit agreement

 

15. The copy sent in response to my section 78(1) request is extremely poor quality and it is illegible and not in compliance with the requirements of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

 

Regulation 2(1) states

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

Therefore the document sent in reply to the request made on xx/xx/2007 fails in its entirety to comply with the requirements of section 78(1) and the regulations as stated

 

16. In addition to the document not being complaint with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557). The purported credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

17. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

18. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

19. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating 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--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

 

20. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. in addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

 

21. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

22. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

23. Notwithstanding point 21, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

The courts power of enforcement

 

24. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

25. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

26. With regards to the Authority cited in point 25, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

 

 

And further more

 

27. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

28. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

29. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

30. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit Exhib1) unenforceable.

 

 

 

 

The Need for a Default notice

 

31. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

32. Notwithstanding point 31, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document 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)

 

33. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

34. The claimant's case cannot succeed as matters stand.

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.

 

35. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, the is confirmed by case law as well. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial

 

36. 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, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

Edited March 10, 2009 by creditcardmug

[pol76]

Just having a read but so far looks great

 

cheers

pol76

[pol76]

Creditcardmug

 

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxxxxxxx

 

In the of xxxxxxxx part do i but in my address or is this if you are part of a company

 

Do i have to mention the SAR's request in the defence or is that nothing to do with this yet?

 

All the best thanks for the help

Pol76

[creditcardmug]

Yes your address, no i wouldnt put anything about the SAR

[pompeyfaith]

Pol what was the date sent on the DN as i cat see it

 

PF

[pol76]

The date on the DN is 5th Jan 09 i dont think anything was/is wrong with the DN

 

Cheers

Pol76

[pol76]

Well I have got a responce from Restons dated 17th March they have sent me the last set of T&C that mbna sent me not the originals from when I took the card out

They have also sent me a copy of the Default Notice

No CCA sent

 

So what do i do now I have but in an embarrsed defence already how can i make restons supply me with a copy of my CCA

 

Letter Just landed whilst typing

The Court have acknowledge my defence and a copy is being served on the claimant they have 28days to contact the court if not then the claim will be stayed the court letter is dated 16th March

 

So whats the next cunning step then folks

 

All the best

Pol76

[creditcardmug]

Just a waiting game for now, if they decide to contunue, the case will be transferred to your local court, and the will send both sides an allocation questionaire (assuming restons dont file an AN in the meantime).

 

In the AQ you will insist they provide all of the documents they will be relying on

[pol76]

cheers Creditcardmug

 

So it is now awaiting game then should they have sent me a cca with my 31 request

 

all the best

pol76

[pol76]

Just an update

MBNA have sent me my sar but not complete so now going through it trying to claim back charges

[sunflower99]

Subbing to this thread as i may be in same boat as you soon.MBNA set Restons on me too! so will be watching your thread and keeping my fingers crosed that all goes well with you.You are getting a lot of excellant help and suppport on this thread which is also giving me some hope,I just got a letter from Resons saying they will take action with me if i dont pay them or come to some arrangement with them.If it was not for this forum i think on receiving that letter i would have jumped under the next passing lorry:eek:This forum is brilliant and we will beat these **** together!

[pol76]

Just spoke to the Court and the 28days for restons to reply was up on Saturday so what do i do now

The very helpful chap at the Court call center said i should but in a for to get the case struck off but said to leave it another week or so

 

I want to get in now so not to allow them more time any advice would be great

 

I went for a new morgage the other day they said due to the mbna default i could not have one at this time

 

all the best

pol76

[pol76]

If the case is struck out would i get the default removed or is that a different issue

 

Cheers

pol76

[sunflower99]

Just spoke to the Court and the 28days for restons to reply was up on Saturday so what do i do now

The very helpful chap at the Court call center said i should but in a for to get the case struck off but said to leave it another week or so

 

I want to get in now so not to allow them more time any advice would be great

 

I went for a new morgage the other day they said due to the mbna default i could not have one at this time

 

all the best

pol76

Hi pol76!

That will be great if it gets struck out! Sounds like there are some quite nice helpful people in courts !

[sunflower99]

Your thread gives me encouragement!

[pol76]

The folks at the courts were very nice and helpful offering advice

I just need to know my next move asap so that i can try and stop them now

Hope your case is going well

all the best

pol76

[supasnooper]

Unfortunately, the court will have a backlog of post to deal with and will usually allow solicitors some latitude on their replies (the sols pay the fees remember ).

 

You'll probably find an Allocation Questionnaire in the post shortly.

[pompeyfaith]

Indeed restons and optima legal are very good at being late and/or very close to deadlines.

 

As the court says id hold fire for a week and if it is late that will go in your defense/witness statements as the courts need to know how far spread this abuse of process is

 

Regards

 

PF