MBNA/Optima Court action

[pompeyfaith]

county court judges cannot over-rule high court rulings

 

That is indeed true high court and appeal court overrule county courts

 

Is there any mention of the consumer credit act 1974 on the N1 Court Claim Form ?

 

As I say as the proported application form/agreement states regulated under the CCA1974 then this has to be the act they use in any court action.

 

The solicitors may try to use/quote common law as they did in my case but you need to bring the above to the Judges attention.

 

Under the CCA1974 you are protected.

 

Will also be a good time to read up on CPR RULES as these can be quoted and used in any defence to their claim.

 

CPR - Rules and Directions - Ministry of Justice

 

Regards

 

PF

[diddydicky]

court ruling states that no correct CCA = no enforcement action can be taken

 

see here:

Wilson v First County Trust

 

beware the difference between:-

 

the creditor does not have a signed agreement

 

and

 

unless the debtor had signed an agreement containing the prescribed terms

 

this is what may give rise to some interesting trials in the near future i suspect, after the recent fiasco

[MisterV]

Hi Langster, gatecrash away

 

The letter Optima sent on 15th April 09 was signed by Phil Robinson and follows the same format as in your thread above.

SRA letter being drafted now, anything else you need let me now.

 

Kind regards

[pompeyfaith]

MisterV,

 

Well Done their is a few people that have made complaints to the SRA about him the more the merrier.

 

PF

[AndyOrch]

Hi Mister V

 

 

All Tomlins are unique to the particular case involved.Its utter rubbish to say that they are bad news or biased in anyway.

Consider why a Claimant should wish to elect the Tomlin route its usually a a case of the case not being water tight to proceed to trial and therefore the Claimant must seek your consent, that the contents are not biased The Defendent has a great input in the draft of said Tomlin.The Claimant wants your agreement and signature to implement any Tomlin/Consent and therefore you can make what ever demands you wish before agreeing to it,ie interest suspended/costs and F/F/figure.

How can they be bad news the contents cant be varied without recourse of both parties in front of a DJ:confused:

 

Regards

 

Andy;)

[MisterV]

Thanks for that contribution andyorch, very helpful.

As you can see from my thread im wondering if my CCA is enforceable and have been quite undecided as to whether to fight this or make a settlement through the Tomlin.

 

Have refused to lift default and will only show file as short settlement.

Have a deadline to return signed Tomlin or they will make an application for summary judgement and the case be struck out.

Just wanted to know how i respond with a view to refusing the Tomlin and make sure they dont shaft me for want of a better word?

What should my next letter contain?

Pompey, you mentioned an N244 form or is it too early for that?

(Good luck tomorrow).

[pompeyfaith]

Right firstly have you done a CPR request and got all the details relating to the account this includes the comms log.

 

If not I would get this sent off soon as.

 

Now if they go for a summary judgement and no doubt they will without a hearing you can counter this on the grounds that you where not supplied with all the docs they where basing there claim on.

 

In my case the judge threw out the summary judgement on the grounds that he could not deal with it on the papers and so set a date for a hearing for me to attend.

 

they applied for the summary Judgement in november but i did not get a response to my CPR Request until end of December 08.

 

So get that CPR REquest into optima them they will go for a summary judgement before complying with your request.

 

Soon as they do that you can then submit an N244 application to have the case struck out on the grounds that optima did not comply with cpr rules.

 

Ill be back this evening with links for you.

 

Regards

 

PF

 

Did you get any response to you request for comms log?

 

if not they have not fully complied with your request.

 

PF

[MisterV]

Hi PF,

 

I made a request under CPR 31.14 after I received the claim form from Northampton CC back in July 09 asking for ;

 

1. The agreement

2. The Assignment

3. The Default Notice

4. The Termination Notice

5. Any other documents mentioned in the POC.

 

They sent the DN and another set of T&C's.

Then sent a copy of CCA.

Then sent statements.

 

I then sent another request for the Communications log. Checking my files that has not been sent.

[pompeyfaith]

MisterV,

 

Ok that document which will run into quite a few pages is very important to the case as it is a record of every activity on the account.

 

I think you should write to Optima Legal soon as to remind them that it is still outstanding and that you require a copy soon as.

 

Regards

 

PF

[MisterV]

Just ask for that? Dont mention Tomlin?

Are you in court tomorrow PF?

[pompeyfaith]

Hiya MisterV,

 

yes I'm in Court tomorrow at 12pm.

 

Yes just request the comms log for now.

 

Regards

 

PF

[MisterV]

Good Luck Pompey, let us know how you get on.

 

Thanks for your help.

[pompeyfaith]

MisterV,

 

Thank You and yes I will be posting up the result on my thread soon as I get home.

 

Regards

 

PF

[exchange]

Best of luck for tomorrow PF.

 

Hope it all goes to plan.

 

Exchange

[pompeyfaith]

Exchange,

 

Thank You I certainly hope it does too.

 

Right back too the printing

 

PF

[diddydicky]

Hi PF,

 

I made a request under CPR 31.14 after I received the claim form from Northampton CC back in July 09 asking for ;

 

1. The agreement

2. The Assignment

3. The Default Notice

4. The Termination Notice

5. Any other documents mentioned in the POC.

 

They sent the DN and another set of T&C's.

Then sent a copy of CCA.

Then sent statements.

 

I then sent another request for the Communications log. Checking my files that has not been sent.

 

they wont supply the comms log in response to CPR31.14 unless it was mentioned in the POC which is unlikely

 

you need to make a CPR18 request for this information

[pompeyfaith]

Here you go copy and paste into word program and edit to suit your needs:

 

 

Optima Legal Services Limited

Arndale House

Charles Street

Bradford

BD1 1UN

 

 

16th July 2008

 

 

In the XXXXXXXXX County Court

Claimant -v-

Claim Number:

 

 

Dear Sir/Madam

 

REQUEST FOR INFORMATION CPR 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

 

1. A TRUE COPY OF THE EXECUTED CREDIT AGREEMENT and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2 (1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8 (1) (b) of the Act, including but not limited to:

 

 

(a) A copy of the procedure(s) used for copying, storing and retrieving documents

 

(b) A copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

 

© Copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

 

(d) Copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process (es) comply with the appropriate quality standards

 

 

2. All records you hold on me relevant to this case, including but not limited to:

 

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor.

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with MBNA Europe Bank PLC.

 

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted.

 

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

g. A list of third party agencies to which you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

h. Copies of statements for the entire duration of the credit agreement.

 

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

[underdog13]

Very best of luck to you, PF:)

[MisterV]

Thanks very much. PF & DD. Letter going off.

 

How was your day in court PF?

 

Hi,

 

Quick update and help required folks.

I sent a CPR request on 19th January and have not as yet received a response.

I have in the mean time had a letter from the court and have extended the stay further until 14th February.

Today i received a bundle of statements and letters from the court with a "Notice of hearing of Application" with the claimant seeking summary judgment.

Is it N244 form time, PF mentioned this would happen?

 

Do i need to submit an N244 form?

 

Some help would be greatly apprceciated please !

[MandM]

Hi MisterV - if you're looking to for some clues to SO due to lack of response to CPR have a look at this thread>>>>> http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html particularly the last few pages of posts

 

M

[MisterV]

Is there a timescale to submitting a N244 form?

My court date is May.

 

Pompey, you around later to help with an N244?

[MandM]

Is there a timescale to submitting a N244 form?

My court date is May.

 

I believe it can be submitted at any time. If you wish it to be heard at the same hearing then it needs to be with the court and served on the other side at least 7 days before the hearing. Hopefully someone can confirm but that's the timescales I was advised to work to (and now I can't find the thread )

 

M

[MisterV]

Thanks MandM, i have just read again, the thread above that you kindly provided a link to and i feel excitement and total fear at the thought of what lies ahead. It is intersting to see how well costa has done, id really appreciate some help here from you guys.

 

Perhaps if i post up a timeline it would make it abit easier? Im basically at the N244 stage and unsure what to do for the best.

[MandM]

Yes, get a timeline posted up. It always helps. You'll get some help with this. MBNA are also very good at taking things to the wire - and then backing off. They don't like losing.

[MandM]

At the end of the timeline make your points clearly as to why you are going for SO or SJ.

 

You may find it helps to type this in a seperate document like wordpad or similar so you have a seperate point of reference and then you can update it as you go - maybe re-post it again if things go to another level.

 

M