Help with Final Defence Please

[ekim777]

Hi All,

Summary so far:

 

Took out a credit card agreement with MBNA in 1996, Found I could not pay the full amount anymore (last year) due to disability.

 

Contacted MBNA and told them I was having problems, and would they consider smaller payments, they refused, and eventually said Credit card account number "1234" would be passed to a Debt Collection Agency.

 

Some weeks later received a demand from Arrow Global asking for full payment, under account number "4321".

 

Arrow said they had done land registry search and found that I owned the property and they would seek a Charging order.

 

I told them I was having difficulty paying and not long after that I started payments under a scheme ran by the CCCS.

 

Arrow then sent me a letter stating that the debt has now been assigned to them for account "4321" (I never noticed the wrong account number had been quoted), as they tend to use their internal reference number on correspondence.

 

I was then sent a default notice for account "4321"

 

 

I was then sent a termination notice for account "4321"

 

Eventually I was served with a Northampton County Court Claim Form. No mention of an account number on the form.

 

Said I would defend and filled a holding defence. While compiling my evidence I then spotted the wrong account numbers.

 

Wrote to Morbid Clowns Solicitors asking for all the documents listed in the P.O.C. They replied saying I must pay £10.00 for the information and it will take 33 days to get it together.

 

Wrote again under 31.4 and received nothing.

 

Yesterday I submitted my AQ with a disclosure request for the documnetation from Morbid Clowns solicitors.

 

Today received four items

 

1 A credit application form (sigend by me)

 

2, A barelylegible copy of the terms and conditions.

 

2 A copy of the Default notice account number "4321" owing £10k

 

3 A copy of the Termination notice, the first Termination notice they sent me has the wrong acc number "4321".

 

The copy they have provided today has the correct acc number "1234"!

 

In short they have sent me copies of two letters with conflicting account numbers and different amounts! And it's these that they are going to submit them with their AQ!

 

My questions are please!

 

1, Do I wait for the DJ to order directions or compile a defence from what they have sent?

 

2, They have obviously made some mega mistakes here, including forging the termination letter. Obviously hoping I never had the original.

[supasnooper]

Hi there,

 

From what you've written, as you've submitted your Allocation Questionnaire you will now be waiting for the DJ to order directions.

 

You should also receive a copy of MBNA\MC solicitors Allocation Questionnaire but don't hold your breathe on this.

 

It certainly won't harm you to start drafting your defence as it will save you time later.

 

Use the time wisely and research your case throughly.

[ekim777]

Many Thanks for your reply, I also received a letter saying I was misguided and wasting time, and as I was paying via CCCS I have admitted acknowledgment of the debt.

 

Ekim777

[supasnooper]

Since when did solicitors write Consumer Credit law?

 

Keep the letter anyway, as it will show that have offered to settle the debt but they have now decided on court action.

 

Move on to waiting for the judges directions and researching your case.

[Docman]

Hi ekim & welcome to CAG.

 

Arrow are a pain and make a mess of most cases. One thing they do is to send out their own DNs with different account numbers to the MBNA account and later claim that this is something MBNA do.

 

Can you post up the Particulars of Claim and your defence less all the personal identifying details?

[ekim777]

Hi Docman,

The claim is the standard Northampton spit out, as to my defence i am stil researching it, and expect to start compiling something in the coming days. Sorry it's a bit vague but thats where I am up to at the moment.

[creditcardmug]

Hi just by way of sorting out where we are up to here, in your first post, you say you have filed a defence?, then further you say you are preparing another defence?

 

 

There is no "standard northampton spit out", every claimant composes his own POC, we need to know what that says, in order to help.

 

You say you have filed a defence to the POC, can you post that up?

 

you have filed an AQ, what are your draft directions?, do you know what is in the othersides AQ?

[ekim777]

Hi,

 

Link for POC will follow shortly......currently doing a crach course on uploading the link:)

 

 

 

The defence I submitted was a holding defence,

 

The Allocation Questionnaire directions are:

In the Northampton County Court

Claim number

 

 

 

 

 

Between

 

- Claimant

 

and

 

- Defendant

 

 

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

• a) A schedule setting out each charge repayment of which is sought, showing the date, amount, and reason given (if any) for that charge being made;
  

 

• b) Copies of any statement or other document relied upon as showing that each and every charge has been made;
  

 

• c) A statement of evidence of all matters relied upon as tending to show that the charges are irrecoverable as penalties or otherwise;
  

 

• d) Copies of decided cases and other legal materials to be relied upon.
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

 

 

 

 

2. The Defendant shall within 14 days thereafter file and serve a response to the Claimant's schedule, stating in respect of each item claimed;

 

• a) Pursuant to what contractual provision such charge was made, producing a copy of the contractual document relied upon;
  

 

• b) Whether such charge is accepted to be a penalty, and if not why not;
  

 

• c) If such charge is alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions (whether or not such action is treated as a breach of contract between the parties), all facts and matters intended to be relied upon as showing that such was a proper estimate of such loss, and all evidence to be adduced at trial as to what the true cost of dealing with the matter was;
  

 

• d) If such charge is not alleged to be a pre-estimate of the Defendant's loss incurred by the Claimant's actions then facts and matters intended to be relied upon showing the basis upon which the charge was calculated and all evidence to be adduced at trial as to show that the charge was fair and reasonable.
  

 

• e) Any witness statements.
  

 

• f) Copies of decided cases and other legal materials to be relied upon.
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order

 

The request for defence is in relation to the amended "proper" defence.

 

Hope I made myself clearer now

[creditcardmug]

Whats the clam for? bank acc/credit card loan?

[ekim777]

Link to POC (can you let me know if it won't work pse?

 

Pictures by ekim777 - Photobucket

 

 

I have not had a copy of the AQ from the other side yet.

[ekim777]

It's for an MBNA Credit card

[creditcardmug]

Just been reading the POC, the good news is that mbna are not good at having good agreements, depending on how old it is, how old is yours?

 

You have already taken a number of steps (defence/AQ), so theres not much anyone can help with until the judge issues the directions.

 

What i can tell you is that the purpose of the defence is to refute EVERYTHING in the claimants POC, i also see that this is an assigned debt, i.e. mbna are not the claimant...the POC also say that a default notice was issued, and that the claimant claims interest under s68 county courts act, this is not allowed.

 

All these points along with the fact that the agreement was not served with the claim pack, should have been in the defence.

 

As to the AQ, this should have contained directions, such that the claimant must provide original copies of all the above documents in order that the claim can proceed, i dont know what has been done so far, but i hope this gives you a clearer picture of the mechanics of all this

 

So really we wait for the courts response, before deciding on a course of action

[ekim777]

Many Thanks, I'll wait for directions, any idea on the time scale for them to arrive?

[ekim777]

My agreement is from 1996

[ekim777]

I've just checked my defence that was submitted with the AQ. I did request all the documents listed in the POC, also the directions in this thread (post 8) are the wrong ones! I changed my mind as this particular disclosure is more suited to a loan type default, i am looking for the one i did send, and will post asp, sorry if I have caused confusion.

[creditcardmug]

Many Thanks for your reply, I also received a letter saying I was misguided and wasting time, and as I was paying via CCCS I have admitted acknowledgment of the debt.

 

Ekim777

 

Nonsense, but they would say that wouldnt they

[creditcardmug]

The court should respond within a month, the chances of mbna having an enforceable agreement from 96 are zilch:D

[ekim777]

This is the Disclosure request i attached to the AQ not the one in an earlier post!

 

 

 

 

In the ************* County Court

Claim number **********

Between

 

************* - Claimant

 

and

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order file and serve the following:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

[ekim777]

Hi All, Just received a "Notice of Hearing Application" Quote " The hearing of the application for the Claim to be listed for Summary Judgement will take place on the xx July 2009"

 

Can anyone advise me waht to do next?

 

There do not appear to be any instructions for me to attend or submit any paperwork etc.

 

I do have a copy of the claiments statement.

[Docman]

Sometimes, creditors with weak cases try to short circuit by going for summary judgment in the hope you get scarred and don't turn up and/or the judge doen't know about consumer credit law. The creditor then wins by default.

 

Have you had a copy of the AQ from Arrow/MBNA? Did they respond to your defence? Have they filed a witness statement with their application for summary judgment? If so, can you post up so that we will know what they are seeking.

[ekim777]

Hi Docman, Sorry for the delay in replying, Yes I have received a copy of the AQ from them.

 

I submitted a holding defence so they had little to go on.

 

Here is the witness statement for the summary judgement:

 

Pictures by ekim777 - Photobucket

 

Many Thanks

[I've got no money]

Don't panic about the SJ - you've got loads of time

 

I'vre faced exactly the same application from the same Solrs for the same claimant.

 

We need to amend your defence and file a detailed skeleton in reply

[I've got no money]

Have a read of my skeleton - it explains most of the law

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/197867-arrow-mbna-ignm-pt.html#post2147612

[I've got no money]

http://www.consumeractiongroup.co.uk/forum/legal-issues/197867-arrow-mbna-ignm-pt.html#post2147014

 

Have a read at my amended defence

 

I filed and served my amended defence and skeleton - when I got to court they withdrew their application for SJ

[Docman]

I agree with IGNM. You have time to submit a response, although I believe it may be easier to file a witness statement in response to the application. Effectively, this would be an amended defence but in a different format. I think a skeleton argument will be needed if the case proceeds to a full trial.

 

The aim should be to get the court to agree that this is not suitable for summary action and order a full disclosure. However, it is difficult to deal with the points raised in the application form and witness statement. Can you post up the documents exhibited?

Edited May 21, 2009 by Docman