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Mbna Cca ???


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Useful threads when caggers need help filling out Allocation Questionnaires.

 

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Allocation Questionnaire...Urgent help needed please!!! - N150

 

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The dreaded court claim came today... - N150

 

 

You could try to negotiate with Restons but they will probably see this as a sign of weakness and plough on regardless for Summary judgment.

 

Have a read of these threads for some help on dealing with them -

 

http://www.consumeractiongroup.co.uk...ons-court.html

 

Restons Court Action *** WON ***

 

 

If you really are worried about this, why not try to find a solicitor who may take your case on a Conditional Fee Arrangement ?

 

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Thanks for that snoops.no panic really me just being arse ,all is fine just having a blonde moment :-) :-) on the line of a settlement, if i did contact restons with a settlement and in my aq (N149) ticked yes to section a ( settlement ) surely that would be a pluspoint in my favour if/when the case hit the court !!!!!

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on the line of a settlement, if i did contact restons with a settlement and in my aq (N149) ticked yes to section a ( settlement ) surely that would be a pluspoint in my favour if/when the case hit the court !!!!!

 

Depends on the Judge really. :|

 

Your call.

 

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Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

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  • 2 weeks later...

Out of interest axxsabian,are you a homeowner ? I've read your thread and this is as open and shut as it gets in my view,defective default notice and improperly executed cca . I really cant see why they're wasting their time.

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Thanks Snoops, Time to fill my aq in now,Could someone answer my question from post 49 about amending my defence from an ed , thanks :-)

 

 

You should be able to amend your defence on the grounds that you have now received the documents requested from the solicitors.

 

I dont know if there is a "proper" way to do this ie by way of an application. So will ask for you.

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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Out of interest axxsabian,are you a homeowner ? I've read your thread and this is as open and shut as it gets in my view,defective default notice and improperly executed cca . I really cant see why they're wasting their time.

Hi blueotter and thanks for looking at my post, Yes i am a home owner !! why do you ask ???.

Yes it does seem as though it would be an open and shut case but the words " Did you spend the money " are always stuck at the back of my mind and wonder sometimes if i'm doing the right thing,but then i read other posts and it all makes sense and makes all the hassle worth while I think !!!!!!!

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You should be able to amend your defence on the grounds that you have now received the documents requested from the solicitors.

 

I dont know if there is a "proper" way to do this ie by way of an application. So will ask for you.

 

Thanks citizenB , I submitted my AQ on monday so will see what they come back with. so i suppose i will have time to submit an amended defence from now until the court date but thanks for asking about :):)

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Ok, I see from your holding defence, you reserved the right to submit a fully particularised defence once you had the documents requested.

 

So there should be no problem with you doing that now. I suggest the sooner you get it organised and submitted the better. :)

 

 

Just build on the original defence. This has now been moved to your local court hasnt it ?

 

You will need to submit a copy to the court and send a copy to Restons by Special Delivery.

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3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

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2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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  • 2 weeks later...

Hello there, my wife who has been running this thread has not posted anything for a while due to her being quite ill with tonsulitus and still is so i'm going to be taking over !!!! . I have followed the thread very closely so i'm up to speed with it all, I would just like to thank everybody who has looked, commented and given advice so far and i hope will help with this thread in the future :-)

We have recieved a comunication from Restons which i will post up as soon as i can, Also i have quite a few questions i need to ask , But for the moment Thank you kindley :-) :-)

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hello Mr axxsabian:) Sorry to hear your OH is not feeling too well. Just ask your questions, someone will be able to answer them:)

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Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Thanks Citizen B , I'm just inthe process of working out a defence !!! there are quite a few that i have looked at who are in a similar position as my wife so i will take what is relivant and work one out , As soon as i do i will post it up for everyone to view and make comments !!!!!!

Also we recieved a comunication from restons in the form of a N24 which i will post up a soon as i can .......

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You say you have received form N24 from Restons ? Yes, can you please scan that in as soon as possible.. because form N24 is usually sent by the court:confused:

 

When a judgment is entered at court as result of a hearing or consideration by a District Judge a Judgment Order (N24) will be issued. Copies go to both the Claimant and the Defendant and contain detailed information in respect of the Judgment.

 

We need to see what it says and soonest.

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Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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When my wife filed the AQ she put the dates in that she would not be avalible, one of those dates is the above date , so do we need to phone the courts to inform them that she will not be able to attend that day ?????

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OK, Restons have done their usual snake in the grass trick and applied for Summary Judgement. This means they are saying that your defence is rubbish and that you have no case to answer. The fact that you didnt have documents in order to prepare a defence is neither here nor there according to them.

 

They do this to every one.

 

You have a date in August for the hearing. You must submit a response to this 7 days prior to the hearing. Bot to the court and Restons.

 

Lets have a look at what you have.

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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IN THE

CLAIM NO: XXXXXXX

XXXXXXXXX COUNTY COURT

BETWEEN

MBNA Europe Bank Ltd

CLAIMANT

And

 

XXXXXXXX

DEFENDANT

 

Amended DEFENCE and Counterclaim pursuant to the Order of District Judge

Made the XX XXX 2010

 

I, XXXXXXXX of XXXXXXXXXXXXXX am the defendant in this action and make the following statement as my amended defence to the claim made by MBNA Europe Bank Ltd

At the point where my defence was required I was not in possession of documents from the claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules

On XX/XX/2010 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit CMH01) I requested the claimant supply this information in 7 days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents

The claimant failed to supply the requested information within the requested time frame so accordingly I could only file a minimal defence. However, the claimant has now supplied some of the requested information (attached marked Exhibits CMH 02 CMH03), and now after consideration of the documents which have been supplied I can now make a fully particularised defence to the claimants Particulars

After consideration of the documents referred to in point 4 I consequently deny the allegations made in the claimants particulars of claim and accordingly place the claimant to strict proof that I am indebted to them thereof.The Defendant admits that She signed a document provided by MBNA Europe Bank Limited. It is Not admitted that the Defendant signed an agreement with MBNA Europe Bank Limited.

It is admitted that, in the sense that the Defendant applied for and was given a credit card that there was an agreement between the Defendant and MBNA Europe Bank Limited. The Defendant does not admit that such agreement was reduced to writing. The Precise terms and date of any such agreement are not admitted. The Claimant is put to strict proof as to the date and terms of such agreement and is put to strict proof that a written agreement is in existence.

It is averred that the agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is denied that the Agreement is enforceable within the terms of the Act in that the Defendant avers that the agreement alleged by the Claimant does not contain the Statutory Particulars as to payment, rate of interest and calculation of credit limitlaid down by parliament which must be complied with if such agreement is to be enforced by the courts.

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)

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

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

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."

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

Notwithstanding point 12, 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 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).

 

 

 

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

With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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."

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

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 CMH01) unenforceable.

 

If, which is not admitted, there is a written agreement in existence it is, for the reasons set out at paragraph 7 above, denied that such agreement is enforceable. The claimant is put to strict proof of the terms and conditions thereof

Further and in the alternativeIt is averred that a copy of the documentation signed by the Defendant was not provided to her at the point of signature and that, which is not admitted, if this document was the agreement it was therefore improperly executed and in respect thereof may only be enforced with leave of the Court.

The Defendant did not, until after the issue of these proceedings on XX XXXXX 2010, receive a copy of the document that she had signed until XXth XXX 2010. Further the Defendant recalls receiving a credit card following on from the completion of the application form. The Defendant does not recall being provided with, at that juncture, any documentation containing any alleged terms and conditions. A copy of the document signed by the Defendant was not provided. The Claimant is put to strict proof that such terms and conditions were so supplied.

In addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

The Default Notice that the claimant relies on and has submitted to the court (MBNA1 & my exhibit CMH04) is NOT a copy of the original and is an attempt to mislead and confuse both myself and the court. This shows that this document has been altered from the original Default Notice

The Notice upon which the Claimant also relies was dated the 9th January 2009. The Defendant is not aware as to either the date or manner of posting. The Claimant is put to strict proof thereof. If the Notice was posted on that date that it would be deemed to be delivered on either Tuesday the 13th January, if sent by first class post or Thursday the 15th January, if sent by second class post.

The Statutory period for response to the Default Notice would therefore expire on either the 27th January or the 29th of January. The Default Notice required remedial action by the 26th January 2009 and consequently failed to provide the Statutory 14 days after the date of Service for remedy of the alleged breach.

The notice clearly states that the breach must be remedied before the 26/01/2009 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default

 

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.

If the court considers it in appropriate 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, this is confirmed by case law as referred to in points 11,15 and 16 of this defence. 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

 

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, or indeed to provide a reasonable time period to investigate this matter, I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable by unilaterally deciding to disregard the Debt Management plan despite the existence of a Statement of Affairs provided to them.

 

In addition, should it be 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 is alleged to have commenced on 07/02/2000 this was 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.

The Defendant therefore submits that the Claimant is unable to seek Judgment, summarily under CPR Part 24, or any Judgment whatsoever, as unreasonable when considering matters pleaded. Also in the unreasonable behaviour of the claimant in failing to disclose the documents which were necessary in complying with not only the CPR part 16 and practice direction 16, but my ability to prepare a proper defence to the allegations made in the particulars of claim for the reasons stated herein and requests that the Court turn aside the Claimants Application for Summary Judgment as a result

 

The Defendant avers that the 9th January 2009 was a Friday and that if the Notice was posted on that date that it would be deemed to be delivered on either Tuesday the 13th January, if sent by first class post or Thursday the 15th January, if sent by second class post.

The Defendant therefore avers that the Notice was fatally flawed and therefore invalid.

In consequence of the service of an invalid Default Notice the Defendant avers that the claim is fatally flawed.

The Defendant avers that it is further incumbent upon the Claimant to serve a Termination Notice before any proceedings are commenced. The Defendant does not admit service of a valid Termination Notice. The Claimant is put to strict proof as to the service, content and validity thereof.

Further and in the alternative if, which is not admitted, an enforceable agreement is in existence it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

Further it is denied that both the alleged contractual interest and the alleged contractual account charges which have been claimed are lawfully owing in that it is averred that not only is there no contractual basis for the sums claimed but also that the sums claimed are in any event unfair and in breach of the general law.

In any event and pursuant to the County Courts (Interest on Judgment Debts) Order 1991 the claim for interest pursuant to Section 69 of The County Courts Act 1984 is denied 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) as the name of the order implies, is applicable only to judgment debts and so has no application to claims.

In the event that the Court determines that there is an agreement in existence the Defendant seeks a declaration pursuant to S142 (1)(b) Consumer Credit Act 1974 that, in accordance with SS127 (3) and 61(1) that the aforesaid agreement is unenforceable

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

Counterclaim

The Defendant repeats her Defence

The Defendant seeks a declaration pursuant to S142 (1)(b) Consumer Credit Act 1974 that, in accordance with S127 (3) and S61(1) of that Act that the aforesaid agreement is unenforceable.

Statement of Truth

 

 

I XXXXX the Defendant, believe that the facts stated in this amended defence are true

 

 

Signed

 

Amended this XXth day of XXX 2010

 

 

 

ok this is just a very very very rough go at it , please be as brutal as you want pick it to bits please :-)

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When my wife filed the AQ she put the dates in that she would not be avalible, one of those dates is the above date , so do we need to phone the courts to inform them that she will not be able to attend that day ?????

 

I am assuming this has now been transferred to your local court. So I would phone them tomorrow and then confirm any coversation in writing immediately to the Court manager of your local court. I will ask the site team if there is a specific form you need to complete or if a letter will do.

 

I am not certain that a defence of this kind will be suitable for the Application for Summary Judgment and you are now required I would think to put in a Witness statement in opposition. This means that you need to show the Court that you have a case to go to trial.

 

 

 

 

 

IN THE

CLAIM NO: XXXXXXX

XXXXXXXXX COUNTY COURT

BETWEEN

MBNA Europe Bank Ltd

CLAIMANT

And

 

XXXXXXXX

DEFENDANT

 

Amended DEFENCE and Counterclaim pursuant to the Order of District Judge

Made the XX XXX 2010

 

I, XXXXXXXX of XXXXXXXXXXXXXX am the defendant in this action and make the following statement in response to the Claimant's Application for Summary Judgment. I am a Litigant in Person

 

1. At the point where my defence was required I was not in possession of documents from the claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules.

 

2. The Defendant appreciates there are limitations in providing attachments to claim forms issued out of the Northampton Bulk Processing Centre However, there is no reason why the Claimant could not have provided the documents on which they base their claim and which they would surely realise I would require, by post, at the earliest opportunity.

 

3. On XX/XX/2010 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit CMH01) I requested the claimant supply this information in 7 days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents.

 

4. The claimant failed to supply the requested information within the requested time frame so accordingly I could only file a minimal defence. However, the claimant has now supplied some of the requested information (attached marked Exhibits CMH 02 CMH03). I am now in a position to submit a fully particularised defence to the claimants Particulars and application for Summary Judgment.

 

The Agreement

 

5. The Defendant admits entering into an agreement with MBNA Europe Limited on DATE . No admissions are made as to the terms, conditions or other provisions of any agreement and the extent to which the Claimant may have complied therewith and the extent to which the defendant may not have complied therewith.

6. The Defendant asserts that she was not provided with a copy of the agreement on which the Claimant base their claim until after the proceedings had started and did not receive a copy until DATE .

7. Under the Consumer Credit Act 1974 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)

8. The two pages which the Claimant asserts would have been part of the same document, do not not show any link between them. Therefore the Defendant is only able to confirm the page bearing her signature. and is unable to confirm if the 2nd page is in fact the reverse of the document which she signed as she was never provided with a copy at the time of signing. Therefore the Defendant is unable to confirm if the document was compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

9. Finally 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.

The requirement for valid Default Notice

10. Service of a default notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without proof that a valid default notice was properly served on the Defendant, it is suggested that the Claimant's case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974.

11. The Defendant asserts that no default notice was received from the Claimant. The Claimant is put to strict proof that any Default Notice sent to the Defendant was valid. 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. If the breach is capable of remedy, it must also specify a date not less than 14 days after the date of the service of the notice by which that action must be taken. 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).

12. The time permitted for service of documents is specified in the Interpretation Act 1978.

13. 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)

14. This is an agreement regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in S87 and S88 if they are to lawfully default and terminate, and enjoy the benefits of Section 87. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

 

I have made a start in tidying up and formatting in the way I believe you should be presenting the Witness statement in opposition to the Summary Judgement . You really need the input of diddydicky, vint1954. I suggest you pm them with a link to your post, inviting them to have a look for you.

 

Meanwhile, it might be a good idea for you to at least remove anything that does not apply to you in the defence you have posted up.. as there appears to be quite a lot of stuff that wouldnt apply to you. And some of the dates are obviously not correct. :-)

 

 

Point 12. I am not certain that you can claim that you didnt receive the Default Notice.. Especially as Restons do patrol these forums :(

 

First of all you need to ensure that you manage to get the date of the hearing changed.

 

As long as you submit this 7 days prior to the hearing you are ok.

Edited by citizenB
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4: Staying Calm About Debt  Read Here

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2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Thanks very much Citizen B for all your help , I know this is going to be a hard stint for me but i will get there hopfully. Could you tell me how i pm the above people please not familar with it all yet and again thank you so much for your help i hope you keep watching :-)

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Hi, I will pm them for you on your behalf no worries.

 

Also, I suggest you have a look at the following threads. These caggers are currently in the same situation as you are. Defence/witness statements have been posted on the threads so you will see what is going on.

 

http://www.consumeractiongroup.co.uk/forum/mbna/242602-county-court-claim-received-30.html

 

The thread above, cagger is in court on Friday for an sj hearing. So if you keep your eye on that you will see what works and what doesnt.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/254011-wycombe-restons-mbna-24.html

 

I will also post a link to your thread on the two above, hopefully people will trot over and give you some advice.

 

Dont worry.. I will be around :rolleyes:

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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:)

 

pms sent, links put on the other threads. If you post on one of the threads I have linked you to, you will automatically receive updates on those situations.

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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In particular have a read of post 293 in LB145's thread,

 

http://www.consumeractiongroup.co.uk/forum/mbna/242602-county-court-claim-received-30.html

 

It will give you a pretty good idea of the way you will need to argue your case.

  • Haha 1

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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