MKDP & Barclaycard Claim Form***Strike Out***

[slick132]

Hi Shanidev,

 

Regardless of what the Claimant has supplied or not, you are still obliged to follow the court's Directions or requirements. If you fail to comply, you risk having Judgement made against you with no hearing.

 

Did you send the Claimant a CPR 31.14 request asking for sight of the credit agreement, Notice of Assignment, Default Notice, etc.

 

Did they provide anything in response.

 

Did you enter a defence against the claim and, if so, please post here exactly what you said.

 

Re the Directions Questionnaire - what are you stuck on.

 

It should give you the chance to nominate your local court for the case to be heard if it goes that far.

 

When is the DQ due back at the court. If you are at risk of missing the deadline, call the court and explain that you're getting advice and will respond within 7 days from tomorrow if the court will kindly agree.

 

[slick132]

Moving to Legal Issues forum

 

[slick132]

Hi Shanidev,

 

Good to see you entered a defence.

 

Unless you made an N244 Application and paid the fee, the court will not consider your request for the claim to be Struck Out.

 

Say YES to Mediation so you are seen to be reasonable in the matter.

 

Seek the transfer of the case to be heard at your local court.

 

The court will allocate to the track appropriate for the amount claimed but, if the claim is below £10K, it'll be Small Claims Track.

 

They will not "prove the debt" until a court hearing. However, if they don't have the necessary documents, they may decide to withdraw the claim. If not, you can apply for the case to be Struck Out but you need to do this properly.

 

 

Approx how much is the claim for.

[slick132]

just over £2200

 

So the claim will be allocated to the Small Claims Track for sure.

 

[slick132]

Hi Shanidev,

 

Looks like Mediation has been left aside for now, for whatever reason.

 

Please confirm the exact Directions given by the court about the Prelim Hearing.

 

If the Claimant has not supplied the info you reasonably require to defend your case, you can ask the judge to order them to do so when you attend the Prelim.

 

[slick132]

Hi Shani,

 

Please confirm the detail of the court's Directions when you get them in writing.

 

[slick132]

Hi Shanidev,

 

Can you please confirm the exact wording of the court's Directions.

 

[slick132]

Hi Shani,

 

What is the date in 1. above ?

 

[slick132]

Hi Shani,

 

See how the court responds but you may need to make an N244 Application to have the claim against you Struck Out to put an end to the matter.

 

Read up on this in the CPR.

 

[slick132]

Wait and see if the court now moves the process on, in which case I assume arrangements will be made for mediation.

 

I doubt the court will refuse to accept the documents, even though they've been submitted later than the court's directions.

 

[slick132]

Don't write to BC for any clarification - the matter is out out of their hands.

 

It sounds like they've failed to provide a copy of the Notice of Assignment that should have been sent to you, and they've just provided the letter from BC to MKDP.

 

They've also failed to provide a copy of the credit agreement with your signature thereon.

 

Did you submit a defence or submission to the court, in response to the documents they supplied late.

 

[slick132]

Did the court specify that the defence has to be in by the 10th ?

 

[slick132]

Hi Shani,

 

I suspect you should have applied for a Strike Out of the claim after they failed to produce doc'ts as ordered in November.

 

You may now need to lodge an amended defence in response to the doc'ts you rec'd from MKDP on 22nd Dec'r.

 

But I think the doc'ts the court requires you to file and serve by 10th Jan may actually be your main court bundle (the evidence on which you rely to defend against the claim).

 

I'll ask for input from more legally experienced Site Team ...............

 

[slick132]

Hi Shanidev,

 

Andyorch agrees that the doc'ts required by court are the trial bundle and you will have already had guidance from the court about what is expected.

 

[slick132]

Hi Shani,

 

Thanks Slick. Direction order date 11/11/13 MKDP to provide docs by 18th and then I have 10 days to send my defence. I have done mine to say docs not received hence no meanig ful defence. Adked court to either dismiss case or ask for docs to be provided.

 

Can you just confirm if you actually submitted a statement to the court by 28th Nov'r, saying MKDP failed to comply with the courts' directions to produce doc'ts by 18th Nov'r. If so, what did you say and did the court respond at all.

 

[slick132]

I'd be interested to know why the court failed to acknowledge or respond in any way to your submission in post #60. Perhaps it was because you failed to make a formal application on N244. Maybe worth a call to the court's offices.

 

However, that is perhaps now irrelevant as the claimant produced documents eventually.

 

So you should now focus on defending against the claim based on their inadequate paperwork. Eg the generic unsigned agreement which you'll suggest is unenforceable, Notice of Assignment, unreconcilable figures for the account, etc.

 

Edited February 3, 2014 by slick132
typo

[slick132]

No, it will be your "court bundle", or documents in support of your defence against the claim.

 

A Witness Statement to the court summarising your points of defence against the claimant's POC's.

 

Also documents or printed sections of legislation and/or case law that supports your arguments.

 

[slick132]

Post your Witness Statement and defence here if you want - we can maybe get it checked before submission.

 

[slick132]

Hi Shani,

 

Re the court hearing, what were the Courts' Directions exactly, about what the Claimant and you have to do before the hearing.

 

Re the credit agreement, enforceability depends on the date the a/c was opened and how well you present your evidence in defence. But ultimately it is down to the judge on the day.

 

[slick132]

Hi Shani,

 

Was the T.O. offered by letter or as part of Mediation.

 

With the a/c opened before 2007, you have a better chance of arguing enforceability if they don't have adequate paperwork. Still down to how well you prepare, and the judge on the day.

 

Have you prepared and I&E summary to show what you CAN pay per month. This may be relevant if you decide to make or accept an offer to pay monthly.

 

[slick132]

Hmmm,

 

There really should not be any phone conversations !

 

Have they since confirmed in writing whatever was discussed by phone.

 

You need to have everything in writing or email. Otherwise you have nothing to show what was discussed, offered, agreed to, etc.

 

[slick132]

Hi Shani,

 

Can you reply to my Q in para 1 of my post #70 above about the courts' Directions.

 

[slick132]

Thanks and noted.

 

Do you have notification of a final hearing date yet.

 

Or anything else received from the court since you filed your defence as per post #67.

 

[slick132]

Hi Shani,

 

I wish you good luck at the hearing.

 

I'm sure you've been busy researching in preparation for the hearing but I thought I'd post the following that we had as a guide about improperly executed credit agreements :-

 

2. Agreements that are not properly executed

 

If an agreement is not properly executed as defined in section 61(1) of the Consumer Credit Act 1974 then Section 65 says that it can only be enforced by a court.

65.--(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

However, the Court's powers to enforce an agreement that is not properly executed and that was entered into before 2006 are limited by Section 127(3) of the Act.

127.--(1) In the case of an application for an enforcement order under--

(a) Section 65(1) (improperly executed agreements)....

 

(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)

This section says that an agreement that is not properly executed can only be enforced if it consists of a single document

 

a) signed by the debtor, and

 

b) has the prescribed terms

 

The prescribed terms for enforceability under s127(3) are given in Schedule 6of the Consumer Credit (Agreements) Regulations 1983:

 

For fixed sum loans (e.g. bank loans, hire purchase agreements) the agreement must contain:

 

- A term stating the amount of the credit

 

For running account agreements (e.g. credit cards) the agreement must contain:

 

- A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

 

In all cases, the agreement must contain:

 

- 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--

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) 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.

 

(For hire agreements, there are other details given in Schedules 3 and 4).

 

All running account credit agreements and agreements for fixed sum loans which fall within certain exemptions (Schedule 1 paragraph 9 - usually if either of the other relevant prescribed terms are missing) must also have

 

- A term stating the rate of any interesticon on the credit to be provided under the agreement

 

Thus, it is quite often the case that an agreement sent in response to a request under Section 77, 78 or 79 may fully comply with the (revised) requirements of those sections but not be enforceable. For example, a typical response from a credit card company consisting of a copy of an application form and a copy of recent Terms and Conditions would comply with Section 79 but would probably not be enforceable for one of several reasons:

 

a) no signatureicon (copy of unsigned application form)

 

b) no prescribed terms (interest rate, etc not on the form)

 

c) signature and prescribed terms not on one document (signed application form and recent Terms and Conditions).

 

It should be noted that some older MBNAicon application forms in particular do have the prescribed terms in a narrow column on one side. They are often headed "Credit Card Agreement Regulated by the Consumer Credit Act 1974" as well. Such forms should be checked very carefully as they may be properly executed. If not, they are probably enforceable by a court under Section 65.

 

Section 127(3) was repealed in the Consumer Credit Act 2006, which came into force in January 2007. Therefore, the enforceability of any agreement entered into after 2006 cannot be challenged by Section 127. This doesn't mean that such an agreement is necessarily enforceable but it does mean that its enforceability must be argued on its own merits.

 

[slick132]

Excellent !!