Restons and MBNA and County Court Papers

[booda31]

Hello all,

 

What a great site this is. Some absoloutely priceless information.

 

I have been reading the many, many threads on Ratsons and MBNA . Suprise suprise I am in the same boat.

 

Before the court papers were served, MBNA had been served with s77/s78 letter, and they responded but with exactly the same as what Restons have sent now - see below.

 

Back then they said we will hold and await instruction from our client.

 

3 months pass by and I get a letter from Restons telling me to complete and sign i + e form, which I did not, and responded that the account is still in dispute/default over the s77/s78 request not being complied with.

 

They served county court papers on me on not so long ago, and I responded by sending a CPR 18 request, and a CPR 31 request using templates from this site.

 

They have responded, advising that I need to

 

"explain what part of the proceedings I am disputing, and that the CPR 18 request they do not understand its purpose" adding further that

 

"You state the information is required 'in order to file a defence and counterclaim. You provide no explanation as to why as to why you require this information listed in your correspondence and we cannot think of any justification for such a request"

 

They end threatening to apply for a summary judgment unless I accept their invitation to withdraw my defence to the claim"

 

At the top of the letter they say as requested we enclose:

 

1. A copy of the original credit agreement - this was an online application form with tick in the box

2. A copy of the latest version of the credit agreement which applied your account (actual wording)

3. Statements of account

3. A recreated copy of the Default Notice sent by our client.

 

I have emailed and written to them to advise that I will give them till x date to confirm with the CPR requests fully.

 

What would be my next step, what would go in my defence?

 

Any thoughts I'd be very grateful.

 

[diamondgirl]

Can you post the PoC remembering to remove any personal info. I am assuming that you have not been to court yet or had an AQ sent to you.

What did you file when you acknowledged service did you say you intended to defend all?

The more info you can provide the better it helps everyone to try to advise you.

DG:)

[booda31]

Thanks diamondgirl -

 

PoC

 

The claimant claims payment of the overdue balance due from the defendent under a contract dated on or around 06/09/2007 in the sum of £2xxx.xx inclsuive of interest to the date of this summons at 8% per annum from 18/11/2008 to 23/07/2009.

 

Particulars of claim a/c number:- xxxxxxxxxxxxxxxx

 

Date - 18/11/2008

Item - Default Balance £2xxx.xx

Post Refrl Cr NIL

 

23/07/2009 interest £xxx.xx

TOTAL:- £2xxx.xx

 

Together with intersest pursuant to s69 county courts act 19 at the rate of xx.xx per day to the date of judgment or sooner payment.

 

I have not been to court but have sent acknowledged service and said I intended to defend in full. Court papers were served 24/07/2009, and have given Restons until Monday 10 August to fully comply.

 

The above in my first post is all I have had from Restons.

 

Thanks

 

What is an AQ, is it the small claims book by Patricia Pearl?, I have not got that.

[booda31]

Sorry for ignorance, no have not had an aq form.

[foolishgirl]

Hi booda - welcome to CAG

 

You should read this thread - very pertinent to your case & it's the success of the week & you will learn a lot from it, particularly the barrister's appearance in court!

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

 

Re. your defence:

1. What date does your defence have to be in by? It's 28 days from the date on the summons.

 

2. The POC is rubbish. They are not allowed to claim stat. interest

 

3. They cannot just ignore CPR requests - you can get the court to order production of the docs.

 

4. Have you ever had any charges applied to your account & if so have you ever reclaimed them?

 

5. Have you received a DN at all? Can you post up what they have sent as a copy please (minus personal details)

 

6. Can you also post up your agreement (minus the personal bits)?

 

You will get lots of help but the info is necessary to help compile a defence.

[booda31]

Thanks for that you're a star foolishgirl.

 

The attached is the agreement, they have sent two of them. These are from the first one

[booda31]

And this is the second cca in small print, and also the DN. Any thoughts will be gratefully received.

[booda31]

I bet the uploads are useless looking very small, how do I get bigger size uploaded, do I need to upload 1 per post or something?

 

My defence needs to be in by Tuesday, but am unsure how to proceed further.

 

Thanks

[booda31]

Thanks for the link foolish girl, I think the embarrased defence is the next step considering I can not put in a defence if they refuse information under CPR.

Their default notice looks very strange to say the least, I see the bankers themselves are into the business of crossing there signature with 2 lines - lol.

[foolishgirl]

Sorry booda, the images are too small. Did you upload using photobucket?

 

Yes, the embarassed defence is the way to go. If you can post up a draft, it will give CAGers opportunity to comment.

[booda31]

Never heard of photobucket till now, thanks for that, that will free up loads of space on my hardrive, and so easy to email photos and all..... going off topic.

 

I hope the following link helps, it is all that has been provided by Restons under the CPR, and its the same as what MBNA sent under s77/s78 many months ago which I disputed - untrue copies.

 

 

Pictures by booda31 - Photobucket

 

The embarrassment defence I have used a template chrisroach I think his screen name is, posted on the link you provided.

 

Thanks again, I am well happy about photobucket - lol

[foolishgirl]

Can you post the defence you are using here please?

 

The CCA looks OK so far booda, so if you wish to challenge their claim suggest you do so on the DN:-

 

1. They have to prove date of posting to show they have given you the full 14 days before arrears payment is due.

 

2. If you had any charges on this account & it is not taken into account when demanding the arrears, the DN is defective as it does not show an accurate figure.

[booda31]

Hello again,

 

Defence

 

 

I Booda31 make this statement as my defence to the claim brought by MBNA.

 

1. The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR

 

2. No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon.

 

3. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit.

 

4. Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

Have not sent it yet, but I need to get something in.

[booda31]

Just had a quick flick through the statements, and yes there are charges been applied, nearly every month.

[foolishgirl]

It's a tad brief booda & not quite accurate - you have had an agreement etc. from them. It would therefore possibly be struck out.

 

Suggest the following (amend as necessary)

 

1. I xxxx of xxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxx

 

2. Except where otherwise mentioned in this defence, the defendant neither admits nor denies any allegation made in the claimant's Particulars of Claim and puts the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters:

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued required for the claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the claimant's claim;

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form; and

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

5. In respect of that which is denied, on xxxxx I requested that the claimant provide a true copy of the agreement to which they refer, the default notice & copies of statements under the Civil Procedure Rules to enable a proper defence to be submitted. To date I have received a copy of the credit agreement, a reconstructed default notice & some statements of account.

 

6. The defendant disputes the sum claimed.

 

7. The defendant also requests that the claimant produce material evidence as to the service on the defendant of any alleged default notice.

 

8. The claim relates to a regulated credit agreement regulated by the Consumer Credit Act 1974, yet the claimant claims statutory interest which the claimant should surely know it is not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) in particular section 2 (3) which expressly prohibits such an award.

 

9. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

 

 

Don't forget to head it correctly with Case No. etc & sign a statement of truth at the bottom.

[foolishgirl]

I also suggest that if you have all your statements, you work out how much you are owed in charges etc, add the interest (you can charge contractural, also adding on the stat. 8% ) & submit that as a counterclaim at the same time as you submit your defence.

[booda31]

Thank you very much for your great help again.

 

I am going to get this out to the concerned parties today. Will update how this goes....

[booda31]

Its been about 2 weeks since defence had to be in and have heard nothing back at all. dunno if this good/bad sign? Will update as and when.

[supasnooper]

Restons have 28 days from when the defence has been submitted to decide their next move.

 

If they do not do anything, the claim would be stayed but could be resurrected by Restons on paying the neccessary Court Fees.

 

I am sure you've read plenty of threads featuring these solicitors and you'll know what their next step is.

[booda31]

Thanks Supasnooper, let the fun and games begin.

[Mr Happy]

Just to make you aware, Restons leave everything to the last minute, don't get a false sense of security when 20 seconds before a deadline you have heard nothing, rest assured it will be following in the next 19 seconds.

 

Good luck with your defence.

[booda31]

From reading threads on here it seems to be that way. I have still not heard from them, but expect to by end of week.

 

thanks mr h

[booda31]

And today I have the first reponse from Northampton CC.

Its headed "Notice that a Defence has been filed"

And it comes with the famous 'aq'

 

Its being moved to my local small claims track.

I really am unsure how to proceed, I did not put a counter claim in against Ratsons/MBNA with my defence.

 

It needs to be in by 22 September 09, am confused over the fees bit aswell, my case is over £1500.00, but am on JSA income based with 2 little toddlers and wife to support?

 

Any advice would be gratefully accepted/

 

Thank you

[foolishgirl]

And today I have the first reponse from Northampton CC.

Its headed "Notice that a Defence has been filed"

And it comes with the famous 'aq'

 

Its being moved to my local small claims track.

I really am unsure how to proceed, I did not put a counter claim in against Ratsons/MBNA with my defence.

 

The AQ needs to be completed & sent with draft directions that request an order be made for docs that you require to be produced to the court. I'll try & post up something for you later

Did you send a CPR request to Restons at all?

It needs to be in by 22 September 09, am confused over the fees bit aswell, my case is over £1500.00, but am on JSA income based with 2 little toddlers and wife to support?

 

You should be able to claim fees etc. - you just apply. I'll post the link when I find it.

 

 

FG

[booda31]

Thanks again FG.

 

I sent both cpr18 and cpr31.14, to which there response was along the lines of "you are just trying to waste time, please remove defence or will apply for summary judgment".

 

They did supply copies of CCA with tick in box, t+c's as they are now, copy statements and a reconstructed dn.

 

I will post the defence I used in the next post, and that brings me to where I am at now, aq stage.