IFTL and account B - help please

[ifoughtthelaw]

OH has now had a 2nd claim form for 2nd Account (we'll call B) and is the dispute that kicked it all off in the first place. The amount on this balance is well over £5000.

 

 

POC

 

'The Claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about xxxxx in the sum of £........inclusive of interest to the date of this summons at 8% per annum from xxxx to xxxxx

 

PARTICULARS a/c no:- (quoted correct)

 

DATE ITEM VALUE

xxxxx Default Balance £.........

Post Refrl Cr NIL

 

xxxxxx Interest ......

TOTAL:- ..............

 

Together with:-

Interest pursuant to s69 County Courts Act 19

at the rate of xxx pence per day

to the date of Judgement or sooner payment.

 

 

BACKGROUND

 

CCA'd MBNA under Section 78 request for a copy of the agreement in Dec 2008 to resolve a query about a charge MBNA would not refund which OH felt charged by stealth.

 

They have stated it's the clearest copy they have and is legible and valid agreement. OH disagreed and pointed out illegible in parts and would not pay until charge refunded and a better copy of original received. But MBNA would not recognise a dispute existed.

 

In between stalemate, received lots of MBNA standard letters, telephone calls, statements which continued charging interest so nothing put on hold while they investigated complaint, default sums notices etc then finally the actual Default Notice.

 

 

Have filed the acknowledgement of service online but could do with some help as OH wants to defend and strongly believes some cut and paste has taken place on the copy both front and rear. (Wants to be careful about outright accusations though.)

 

1. The claim doesn't make reference to any specific credit card agreement - just says 'contract dated on or about'. Can they be this vague?

 

2. Are they incorrect to be claiming interest under s69?

 

3. Just reading around the site and found reference to form N268 Notice to Prove documents at trial. What is this used for - is it new and would this be a correct way to request a copy of the actual original at trial to prove authenticity and therefore throw the microfiche copy argument out of the window? MBNA solicitors have sent another copy of the same agreement stating it's legible. It's not without glasses or computer enlarging/enhancement.

4. OH wants to mention about the condition 11 being different on front and rear so probably not part of the same document. Same goes for paragraph 8 on Default Notice which no-one seems to be able to find on here!

 

 

Any thoughts to make a start anyone please? I'm most grateful again for all the help given on this forum. Sorry if I'm rambling, it's been a long day and I wanted to get the POC on here asap.

 

IFTL x

Edited July 20, 2010 by ifoughtthelaw

[ifoughtthelaw]

Help!

 

I'm doing so much reading that I'm getting confused. Need some opinions if poss that OH is going the right way. OH has a copy of the alleged agreement - twice from MBNA and once from solicitors - (not from a CPR request or part 18 - nothing requested yet). Does he need to do a CPR 14 request if copy already sent? Also POC refers to 'contract dated on or about' which could mean anything? Would a Part 18 request be better in this case?

Edited January 14, 2010 by ifoughtthelaw

[GamekeeperToPoacher]

Bump

[ifoughtthelaw]

Sent a CPR 31.14 request but not heard a dickie bird back as yet. Defence for this needs to be in by the 5th, does anyone have any views or comments?

 

Many thanks - most grateful x

[r&b]

hi IFTL,

have a read of BRW posts:

315 here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/199523-restons-mbna-issued-court-6.html#post2394247

 

and 26 here regarding inspection:

http://www.consumeractiongroup.co.uk/forum/legal-issues/212616-amex-have-issued-claim.html#post2392048

 

it may help and clarify a little.

 

try and draft a defence (there are umpteen to copy from) and u will find others will comment.

 

 

IGNM has a defence and skeleton if required posts 6 & 14 respectively here (forget the underlining its just for some amendments):

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191754-arrow-global-ignm-1st.html

[ifoughtthelaw]

Hi r&b and thanks for your post - been working on a defence and found lots of helpful info on those threads. OH has decided he is going to submit an embarrassed defence tomorrow as due in latest on Monday and he's still not happy with the info MBNA have so far provided.

 

He got a letter from the solicitors in response to a CPR18 request basically questioning his reasons for asking for the info, pretending they didn't know what it was for and he had not explained it etc etc...so playing silly s*ds. They then finished by asking for confirmation that he will pay their photocopying charges for statements etc. They enclosed a 'reconstructed' copy of the default notice. (So no copy of the original held then.) Is a reconstruction document acceptable in a court?

 

So question time again (sorry)...if anyone knows the answers please - are they obliged to give the info requested in a CPR18 request; should the answers be taken as their legal reply and does a Defendant have to pay the cost of their photocopying?

 

Why are the credit card companies so reluctant to give copies of statements right from the beginning as surely their 'sophisticated systems' should be able to retrieve them. How do you link or prove the application/agreement to the starting point of the account otherwise. What is it they are trying to hide?

 

Grateful for any comments!

 

IFTL x

[ifoughtthelaw]

Well my complements of the season and wishing you all a Merry Christmas.

 

Restons have decided to resurrect it (after months of doing nothing) just before Christmas! Submitted our AQ and now just got a copy of their application for summary judgement with a hearing date in Jan.

 

I'm preparing a witness statement ready to forward to them and the Court for early Jan, can anybody just give an idea as to what needs to be included, I've drafted a list of the facts as they've happened but do I work this into the holding defence or keep it separate? What else do you include for a witness statement in a summary judgement?

 

 

 

Ta all

x

Edited January 14, 2010 by ifoughtthelaw

[ifoughtthelaw]

We **Won** the Summary Judgment but case far from over.

 

Not won easily and cannot post too many details yet as need to claim the costs and tie up some (serious) loose ends. Bankerrhymeswith was RIGHT about their slithering tricks.

 

Can anyone help?

 

How do we go about claiming our costs after the hearing, as Judge was willing to award our costs but it got overlooked at the end as distracted.

 

Have confirmation from the court that the application for summary judgment is dismissed but nothing else.

 

What happens now?

 

Thanks x

[ifoughtthelaw]

Hello All, an update and some more advice needed please if anyone can help.

 

At the summary judgment hearing, the claimant tried dirty tricks outside the court and presented a witness statement unseen beforehand. My OH would not accept this but the barrister went in anyway and presented it in court where it was accepted by the judge. OH protested it was not served properly and he was not given a copy. It got heated and he ended up annoying the judge who gave him a long lecture!

 

This was their intention to simply fluster a LIP who does not know the procedures well enough. However, the judge eventually agreed condition 11 was not the same on the front and back of the document and it was an irregularity. Judge agreed with OH that Data protection had not been signed and copy of the recent terms and conditions were meaningless. So she just about allowed the summary judgment in OH favour. It is worth noting though that a lot of the defence had not really been read through by the judge who viewed it right from the start as 'well you've had the money.'

 

When the judgment came through there was no mention of costs although the judge had agreed OH could have them, (then got distracted and went on to something else.) OH queried this and the court said to write in which we did and then we got a letter back saying no costs as it should have been dealt with at the time and the judge had concluded matters. So once again the Claimant was laughing in our face and got off the costs as OH didn't know the procedures well enough and had a judge who was clearly in their favour from the start.

 

OH just had a Directions and allocation hearing and guess what? Outside the court for the SECOND TIME, OH was presented with another piece of paper showing an undated COPY of terms and conditions (from supposedly the time the account was opened that WOULD have been given at the time) UNSEEN until then.

 

Same procedure, in they go and it gets shown to the judge (no copy to OH) - judge says I don't know how to introduce this now, OH says I'm not accepting as never seen it before and not been served on me and also isn't this a directions and allocation hearing and not the trial? Judge says well you've had the money (again) OH says Wilson, and it's not about that (claimant had varied the account in an underhanded way) - judge says 'the trouble is you are not a solicitor Mr.....'

 

Judge then says well the claimant can amend his claim, and by the way (to the claimant) that means you can apply for another summary judgment. :confused: HOW ON EARTH CAN THIS BE CORRECT? OH should then amend his defence (does that mean he can't now counterclaim if he chooses to?) and must give his reasons as to why he has a defence with condition 11. HOW ABOUT THE REST OF THE ISSUES? Is he now restricted to only what the judge is directing? This seems to be letting the claimant off the hook and allowing them to do whatever they like whilst OH is not being allowed to defend his case:x:x

 

Please anyone, what do we do next when we receive their amended POC? Does it all just start again? Should we be looking at getting legal representation when the courts are CLEARLY against LIP's and give so much leeway to the legally represented party who know the score?

 

Thanks and have a good Easter all

[ifoughtthelaw]

Still awaiting amended poc by Roystons. Anyone had any experience of them amending a claim?

 

If a claim is amended, will they have to attach all documents this time as it will not be coming though Northampton bulk centre?

 

Thanks all

[ifoughtthelaw]

Any thoughts anyone?

[ifoughtthelaw]

xx

Edited July 4, 2010 by ifoughtthelaw

[ifoughtthelaw]

Update:

 

Claimants did attach paperwork on amended claim and OH submitted an amended defence. Had a claims management hearing and both parties are directed to exchange witness statements by next week.

 

Do all the exhibits referred to OH the witness statement have to be copied again and attached to witness statement. copy to court and claimant etc? They were submitted and attached to the witness statmement for the Summary Judgement. How does it work for the main trial?

 

The facts have not changed and there are a couple of alterations at the end taking into account recent facts. What is the correct procedure here?

 

Thanks for any help please!!

[ifoughtthelaw]

Can anyone point me in the right direction - should I attach copies of exhibits in mentioned in further witness statement for the main trial if the witness statement is the same (except for updated events at the end) as it was at the summary judgement? All copies were attached then, do I need to do it all again?

 

Thanks

[ifoughtthelaw]

Am feeling a little lonely on this thread!!!

 

Witness statements now exchanged. Any advice please on

 

1) Filing a pre-trial checklist - does the court send this or do you get the form yourself and submit. Also - does the other side get copy?

 

2) How do you ask for the claimant's witness to attend court in person?

 

Thanks, any help appreciated.

 

x

[bozalt]

Hi IFTL

 

I am not really up to speed on these things but you can obtain a pretrial checklist here;

 

Her Majesty's Courts Service -Forms and Guidance.

 

I think this needs to be sent to the court only, I cant really advise any further I am afraid.

 

Good luck.

 

B