mbna/optima legal court papers- help

[citizenB]

Thanks for everyones help- I am posting a copy of the application form MBNA sent in a SAR as the "credit agreement " if any body would be so kind to have a look at... it looks micro fiched to me- and I can't spot on the signed front any mention of credit limit,interest rates etc and the the supposed back copy is there anything that would suggest it's part of the same document ?

 

I think that you are right

 

I also can't find where MBNA have signed it...

 

Have you got any statements - just check the intrest rates and charges against the terms and conditions they've sent - you may find that they're totally different to the T & C

 

I have just been looking at your documents again and see on the left hand side, at the bottom of the front page.. very faint is a signature and date stamp.

 

I still believe the document contains no prescribed terms.

[supasnooper]

Just to add my view.

 

If you look at the document date identifiers at the bottom right corners of the documents - they don't match.

 

And, as others have pointed out, the prescribed terms are not embodied within the four corners of the document.

 

In court, if this one ever gets that far, your first question must be - Under CPR 16.7(3), have you brought the original document ?

 

 

 

Good Luck.

[I've got no money]

I have just been looking at your documents again and see on the left hand side, at the bottom of the front page.. very faint is a signature and date stamp.

 

I still believe the document contains no prescribed terms.

 

I didn't even realise that was a signature - but yes now I've looked again - it is...

 

- I s'pose its' arguable whether it is sufficient to act as the creditors signature on the agreement - I know that you don't need much but there's nothing which identifies it is as the signature.

 

If they argue, as I suspect they will, that it is - I think I'd want evidence from the person who signed it as to exactly what their intention was when signing it...

 

I think that you maintain in your defence that the doc hasn't been signed by them and when they say it has argue that signature doesn't refer to executing the agreement and in fact doesn't actually refer to anything.

[bnkrob]

Thanks for the advice so far recieved- about to send chasing CPR letter with the threat of application to court for order & costs. Could do with some advice on N224/ useless order procedures - can this be done on line or do I have to request the forms/return them by post from the court dealing with the claim- also is there a cost involved to do so?

 

This is obviously going to take some - so do I still need to return a defence before the 28 days since my acknoweldement of service stating I wish to defend ?

 

appreciate any thoughts

bnkrob

[citizenB]

I have just been looking at your documents again and see on the left hand side, at the bottom of the front page.. very faint is a signature and date stamp.

 

I still believe the document contains no prescribed terms.

 

I didn't even realise that was a signature - but yes now I've looked again - it is...

 

- I s'pose its' arguable whether it is sufficient to act as the creditors signature on the agreement - I know that you don't need much but there's nothing which identifies it is as the signature.

 

If they argue, as I suspect they will, that it is - I think I'd want evidence from the person who signed it as to exactly what their intention was when signing it...

 

I think that you maintain in your defence that the doc hasn't been signed by them and when they say it has argue that signature doesn't refer to executing the agreement and in fact doesn't actually refer to anything.

 

I would have thought that there would be a legal requirement for a signature box for both the Creditor and the account holder.

[I've got no money]

Thanks for the advice so far recieved- about to send chasing CPR letter with the threat of application to court for order & costs. Could do with some advice on N224/ useless order procedures - can this be done on line or do I have to request the forms/return them by post from the court dealing with the claim- also is there a cost involved to do so?

 

This is obviously going to take some - so do I still need to return a defence before the 28 days since my acknoweldement of service stating I wish to defend ?

 

appreciate any thoughts

bnkrob

 

 

N244 - Unless Application - there is a court fee of £75 - you may be entitled to remission of the fee in whole or part - you can't do it online - you can fill the form out online but you then need to print it out - you also need to attach copies of the cpr 31.14 request and your chasing letter - and then send it to the County Court dealing with the claim with either the fee or an application for remission

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/195872-court-fees-remission.html

 

In terms of a defence you can either apply to extend the time for service of a defence until they comply with your disclosure request or you need to file a holding defence. It's probably easier to file a holding defence. I'll post a suggested one.

[I've got no money]

This defence was drafted for use where there was an assignment - so you need to amend it to match your case

 

 

 

IN THE

XXXXX COUNTY COURT CLAIM NO:

BETWEEN

 

 

xxxxxxx

 

 

CLAIMANT

 

 

And

 

 

 

 

 

XXXXXX

 

 

DEFENDANT

 

 

 

 

 

DEFENCE

 

 

 

 

1. The claim as pleaded does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence. The Defendant has made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow him to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

2. It is Not admitted that the Defendant signed an agreement with XXXX . If, which is not admitted, such an agreement exists the precise terms and date of anysuch agreement are not admitted. The Defendant does not have in his possession any such agreement and is not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

3. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is not admitted that any such Agreement is enforceable within the terms of the Act. The Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

4. The Defendant has no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.

5. It is not admitted that the aforesaid agreement was lawfully assigned to the Claimant. The Claimant is put to strict proof that such a Lawful Assignment took place.

6. If, which is not admitted, an Assignment to the claimant did occur it is averred that for such an Assignment to be lawful that notice of it must be served in accordance with the terms of the Law of Property Act 1925.

7. It is not admitted that the notice required by the Law of Property Act 1925 was served upon the Defendant. The Defendant has not seen any such notice and does not admitting being served with a copy thereof. The Claimant is put to strict proof as to the content and the manner of service of the alleged notice.

8. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing.

9. Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

10. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all.

Statement of Truth

I believe that the facts stated in this defence are true.

I am the Defendant.

 

 

XXXXX

Dated:

Edited April 27, 2009 by I've got no money

[bnkrob]

This defence was drafted for use where there was an assignment - so you need to amend it to match your case

 

 

 

IN THE

XXXXX COUNTY COURT CLAIM NO:

BETWEEN

 

 

xxxxxxx

 

 

CLAIMANT

 

 

And

 

 

 

 

 

XXXXXX

 

 

DEFENDANT

 

 

 

 

 

DEFENCE

 

 

 

 

1. The claim as pleaded does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence. The Defendant has made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow him to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

2. It is Not admitted that the Defendant signed an agreement with XXXX . If, which is not admitted, such an agreement exists the precise terms and date of anysuch agreement are not admitted. The Defendant does not have in his possession any such agreement and is not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

3. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is not admitted that any such Agreement is enforceable within the terms of the Act. The Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

4. The Defendant has no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.

5. It is not admitted that the aforesaid agreement was lawfully assigned to the Claimant. The Claimant is put to strict proof that such a Lawful Assignment took place.

6. If, which is not admitted, an Assignment to the claimant did occur it is averred that for such an Assignment to be lawful that notice of it must be served in accordance with the terms of the Law of Property Act 1925.

7. It is not admitted that the notice required by the Law of Property Act 1925 was served upon the Defendant. The Defendant has not seen any such notice and does not admitting being served with a copy thereof. The Claimant is put to strict proof as to the content and the manner of service of the alleged notice.

8. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing.

9. Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

10. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all.

Statement of Truth

I believe that the facts stated in this defence are true.

I am the Defendant.

 

 

XXXXX

Dated:

 

Thanks for that bnkrob

[MadScouser]

From what I've read elsewhere on this site, the default you have posted above is invalid, due to the date of service being 10th March(I think), 2 working days after the default is dated?

[I've got no money]

Can I just double check - have they given you everything that you asked for in your 31.14 request

 

If you have a look at my amended defence - providing you take out the underlining, the bit about it being amended and the assignment stuff you should be able to use it for yours

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191754-arrow-global-ignm.html

 

You could also put in why the DN was invalid

[pompeyfaith]

It could be invalid on that point madscouser it all depends on the day of service was it first or second class post ?

 

Now the point where it is invalid is that the document is not an original it is a copy i have seen enough to know this furthermore it does not have the creditors name address or telephone number on it so it fails under the cpr rules there.

 

And theres more under oft guidelines you should of recieved this with an OFT LEAFLET on default notices. did you ? it tells you to contact them to get this leaflet if you did not get one how can you if there is no telephone number.

 

I would be asking where the original doc is

 

they cannot issue two defaults for the same debt.

 

Regards

 

PF

[pompeyfaith]

This post is similar to yours regarding DN

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170484-fairbyblue-mbna-restons-court.html

 

PF

[MadScouser]

Pompey,

 

My reasoning for saying the default is invalid is it is dated on a Friday, allowing 2 working days(1st class post assumed) takes the date of service to either the 10th or 11th, depending if the date posted counts. Meaning a maximum of 12 days allowed, as the notice states the default to be rectified before the 23rd.

 

Good luck.

[citizenB]

bnkrob, you have left the agreement number on your default notice, have unapproved post till you can edit.

[bnkrob]

Well just received more goodies from Optima since they replied to my CPR request- the y enclosed they claim my most recent credit agreement with MBNA. Which consisted of 4 pages of terms and conditions and a letter from MBNA which I will post (the letter) – It made me Laugh.

Also included were yet again the now familiar copy of the application form and the separate sheet of conditions. I think possibly they think if they keep sending me this it will somehow magically transform into Credit Agreement as referred to in the particulars of the claim. Talking in terms of defence am I justified in saying they have failed in their CPR 31.16 duties by not disclosing the credit agreement- hopefully the Court will not see the ‘application Form’ as a valid agreement. I intend to use a adaptation of the defence posted by I HAVE NO MONEY as my defence .Any thoughts

 

bnkrob

mbna appl1.pdf

mbnaappl2.pdf

mbna default notice.pdf

mbna terms letter.pdf

[I've got no money]

When is your defence due - I've got a hearing on Tuesday the 5th - I might be able to give you some useful feedback after then.

 

Ideally if you could post the defence before you file it and we'll give it the once over

[bnkrob]

My defence needs to be there by 20th May- my defence is follows

 

Thanks to the link posted IGNM

 

 

DEFENCE

 

 

1. The Defendant admits that he signed a document provided by MBNA Europe Bank Limited.It is Not admitted that the defendant signed an agreement with MBNA Europe Bank Limited.The precise terms and date of any such alleged agreement are not admitted. The claimant is put to strict proof as to the date and terms of such agreement.

 

2. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974. It is denied that the Agreement is enforceable within the terms of the Act in that the Defendant avers that the aforesaid alleged agreement does not contain the Statutory Particulars as to payment, rate of interest and calculation of credit limit.

It is further averred that the alleged agreement is defective in that it is not executed by or upon behalf of MBNA Europe Bank Limited.

 

3. The Default notice served is invalid as it was incorrectly served in accordance to procedures laid out in the Consumer Credit Act 1974.

 

4. In view of the foregoing it is denied that the defendant is indebted to the Claimant as alleged or at all.

 

Statement of Truth

I believe that facts stated in this defence are true.

I am the defendant

 

Signed

 

date

 

Does the defence need to started on the claim form or Can you just put see attached sheet ? will probably submit around the 14th - as I will be away around the deadline.

 

cheers for any thoughts

 

bnkrob

[diamondgirl]

You can put in the box "Please see Attachment (then number or letter)"

and dont forget to mark the Attachment with the same letter or number.

DG

[bnkrob]

Heard from Northampton Court - they are awaiting Optima's response to my defence.... recieved a letter from Optima- ( see attached ) in which they have sent me a "copy" of my creduit agreement... its just the same copy of the application form and alleged back of that form with terms on... they are asking me to comment...what ?... should I write back to them thanking them for a copy of the application form but enquiring where is the copy of the agreement they have said they sent ? or just ignore ?

optima letter.pdf

[I've got no money]

Does the document contain the prescribed terms and is it executed by MBNA.

 

I'd be inclined to do write back and thank them for the application form and ask for the agreement - at this stage you should always respond to letters

[bnkrob]

recieved N150 ALLOCATION QUESTIONAIRE- proposed directions ( part F ) is this where I state that the claiment should turn up with a CCA and default notice- both of which I will being changling as invalid ?

or does that go elsewhere on the form ? any advice appreciated

bnkrob

 

ps need to return form by the 26th

[bnkrob]

Thanks IGNM- ON THE CASE

[bnkrob]

bump

[citizenB]

recieved N150 ALLOCATION QUESTIONAIRE- proposed directions ( part F ) is this where I state that the claiment should turn up with a CCA and default notice- both of which I will being changling as invalid ?

or does that go elsewhere on the form ? any advice appreciated

bnkrob

 

ps need to return form by the 26th

 

You should put in section G any special directions. I will see if I can find you something similar as a guide.

[citizenB]

Here is a link to another MBNA AQ..

 

Post 509. Amend the section "G" to suit your own requirements.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/162249-mbna-cca-agreement-help-51.html#post2142065

 

HTH