Help with next step please ***WON***

[Mrsmancmonkey]

Hi

 

I’ve kindly had a lot of help on this link and would like to know what the next stage is now please.

Marlin / Arrow / MBNA Court Claim - Help Needed Please - The Consumer Forums

Story so far : Arrow taken mum to court, Judge had requested CCA paperwork in first meeting, met with Mortimer Clarke again in a second meeting and basically they are still giving a set of terms and conditions which has no prescribed terms etc on this. My only problem in this Judge wasn’t as switched on as the other one (the other judge understood straightaway and told them to go back and find the original agreement under the CCA law etc) and both he and Mortimer kept trying to say that the application form and this CCA was one of the same thing, even though we’d pointed out that it wasn’t, it could relate to anyone’s agreement as there was no signature/prescribed terms etc . We even showed him the case law (mentioned in thread) and the Consumer Credit Act but he didn’t seem bothered by this either ??

He did ask that for the small claims part (next step apparantely) that they provide an original copy, which Im sure they will just print one off the PC again and try and fob this off as the application form being one of the same thing again.

What should we do if the next Judge doesn’t understand what mum is trying to say and can anyone help as we now have to document it professionally and put together everything we will be replying on?

I will put the letter up tonight which the judge wrote as I stupidely left at home.

Thanks

[GamekeeperToPoacher]

Hi Keeksta,

 

Welcome back I will bump this for you and keep an eye open when you have posted the letter.

 

I am in the just about ready to go to court stage

 

Regards

 

GK

[Mrsmancmonkey]

Thank you

 

Here you go, here is the letter which the judge wrote.

 

http://i896.photobucket.com/albums/ac162/Mrsmancmonkey/ScannedImagejpg.jpg

 

http://i896.photobucket.com/albums/ac162/Mrsmancmonkey/ScannedImage-2jpg.jpg

[GamekeeperToPoacher]

Hi MrsM

 

I am working on my defence at present and hope to complete the draft copy on Monday and I will tehn post it for comments/amendments etc then.

 

My thread is here but relates to a motor vehicle

 

Regards

 

GK

[Mrsmancmonkey]

Hi GK

 

Thanks for that I will have a peruse through it

 

[GamekeeperToPoacher]

It might be worth a look at Nottsdaves thread here where there is some stunning stuff from PT. Please read to the end though!

 

Regards

 

GK

[Docman]

Hi Mrs MM (or K's mum if I recall)

 

The 'letter' from the judge is really a normal Order of the Court for 'Standard Disclosure'. However, the judge has taken the time to specify that Arrow/MBNA produce a copy of the Agreement and also explain what should be in a witness statement.

 

Your Mum can now file what will be an updated Defence as a witness statement and I'm sure we can all help with that task. In addition, you should also draft out a 'skeleton argument' that you can put before the court. In effect, the skeleton should be what you can read out to the court on the day of the hearing. How long is there to file?

 

I believe you have now had a copy of the agreement and may have the default notice. Can you post these up after removing personal identifiers. Have you aslo got a copy of the 'Notice of Assignment' telling you that the accout had been assigned to Arrow?

[Mrsmancmonkey]

Hi Docman

 

I will try and get them scanned up tonight for you, although the scanner was playing up last night.

 

We have until the 2nd week in September, although the CCA they produced is a standard set of T of B but you''ll know what I mean when I get it up here. I've PM you as well Doc.

 

Thank you for the other threads I will have a good read through today

[Mrsmancmonkey]

Hi

 

Does these links work?

http://i896.photobucket.com/albums/ac162/Mrsmancmonkey/Page1.jpg

http://i896.photobucket.com/albums/ac162/Mrsmancmonkey/Page2.jpg

http://i896.photobucket.com/albums/ac162/Mrsmancmonkey/Page3.jpg

http://i896.photobucket.com/albums/ac162/Mrsmancmonkey/Page4.jpg

http://i896.photobucket.com/albums/ac162/Mrsmancmonkey/Page5.jpg

http://i896.photobucket.com/albums/ac162/Mrsmancmonkey/Page6.jpg

http://i896.photobucket.com/albums/ac162/Mrsmancmonkey/Page7.jpg

http://i896.photobucket.com/albums/ac162/Mrsmancmonkey/Page8.jpg

[Docman]

Hi Mrs M

 

I can't see a CAA or even a signed application form. I take it you don't have a copy or the original. Let's wait and see what Arrow come up with.

 

The Default Notice is the combined Notice of Assignment and DN that Arrow seem to issue. What was the date it was issued and the date you had to comply by?

 

BTW, did you get anything from MBNA telling you that Arrow had bought the debt?

[Mrsmancmonkey]

Hi Docman

Nothing from MBNA whatsoever, they're about the 5th lot of DCA's to contact mum and then just take it straight to court after the first bog off letter so to speak.

 

I have the application form which I will scan tomorrow as I need to photocopy it first before I scribble out all her details.

 

I know that the Default notice the dates dont comply if I remember rightly Citizenb explained that to me, but was just concerned that my mum already struggles to get the concept of no CCA = no enforced payment so have stuck with the CCA side of things.

 

They have about another week to get their paperwork to the court and mum, so will see what they send. Is there anything to prove that the CCA isnt one which MBNA used in 1999 anyway? That would be a good thing to take to court? And the issue of them trying to say that the T&C's they've sent are one of the same for the application pack?

 

Cheers Docman

 

MrsMM

[Docman]

Well, for a start, the T&Cs refer to the Financial Ombudsman Service. Problem for MBNA is that FOS didn't come about until 2001!

[Mrsmancmonkey]

 

I like that! Is there anywhere I can find that information from the FOS website?

[Docman]

FOS gets its powers from Part XVI of the Financial Services and Markets Act 2000 which become operative on 30 November 2001.

[Mrsmancmonkey]

Brilliant thank you.

 

What I'll do now then is wait to see what paperwork they provide and then get some advice with what I need to have ready for the court date. We should have that information from them this week so will be back in touch then

 

[Mrsmancmonkey]

Hi Docman

 

Received paperwork from them today.

Received application form - which is a standard application form as shown in the other thread (which in their witness statement they have confirmed that the card was taken out in 1999 )

Credit agreement which is the same as the one attached above

Notice of assignment from MBNA

Termination notice

and Default notice.

 

Is this defence acceptable?? Obviously the defence before wasn't a proper defence as they never sent the relevant paperwork which was why we met on two occasions with the judge to get this information from them.

 

If its rubbish let me know please.

 

'Defence

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

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

 

3. The claimants’ Particulars of Claim 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) 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, have no relevance to this case as the T&C are of a generic form.

 

b) The copy of the purported written agreement that the claimant cites in the Particulars of Claim, state that the T&Cs refer to the Financial Ombudsman Service for an agreement taken out in 1999. The FOS only came into power from Part XVI of the Financial Services and Markets Act 2000 in November 2001.

 

 

4. Further to the case, I requested that the claimant provide a true copy of the executed credit agreement pursuant to s78(1) of the Consumer Credit Act 1974.

 

5. For clarity, s78(1) states:-

78. Duty to give information to debtor under running-account credit agreement.-

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

(a)the state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

6. S78(6) of the Consumer Credit Act 1974 sets out the consequences of failure to comply with such a request and states:-

s78 (6) If the creditor under an agreement fails to comply with subsection (1), he is not entitled, while the default continues, to enforce the agreement

 

7. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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

 

8. Notwithstanding points 6 and 7, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

9. The claimant is therefore put to strict proof that such a compliant document exists

 

10. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. I note that without service of a default notice under s87 (1) Consumer Credit Act 1974 the claimant would not have a right to demand repayment of any sums under an agreement or to terminate an agreement

 

11. Notwithstanding point 16, I put the claimant to strict proof that any default notice sent to me is valid. I note that 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. I also note that there needs to be at least 14 days to remedy such breach. 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. 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)

 

13. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

 

14. In addition 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 before 2006, the Consumer Credit Act 1974 is the relevant act in this case should it be suggested that this agreement comes under the Consumer Credit Act 2006.

 

 

Statement of Truth

 

 

I Nottsdave, believe the above statement to be true and factual

 

Enc. Judgement Wilson and Others V Secretary of State for Trade and Industry (Appellant)

Consumer Credit Act 1974

Consumer Credit Act 2006'

[Docman]

Hi Mrs M,

 

I don't think this is what is requred this time. Remember, the judge asked for a witness statement. This allows Arrow to introduce documents as evidence to support the points made in the witness statement and their Particulars of Claim.

 

Your witness statement needs to answer all the points contained in the claimant's witness statement and their POC. In addition, you need to introduce your own exhibts.

[Mrsmancmonkey]

Hi Docman

 

Oh dear Id read it as the Defence would be mum's witness statement so Im confused as im not sure where to go then or what to put

 

Their points raised in this are then.....

1. that she entered into the credit card agreement in 1999.

2. the debt assigned by original debtor

3. Default notice issued

4. Termination notice issued after termination by the claimant.

5. Final Statement and how much is unpaid. Full statements requested from archive

 

I'll have a look in the forum but if you (or anyone else) knows what to put any help would be really grateful

[Mrsmancmonkey]

Ok I've been busy copying and pasting.... what do you think??

 

I, XXXX of XXXXX, XXXXXXX, being the Defendant, am a litigant in person in this case.

1. I make this Witness Statement in support of my defence against the Claimants claim for summary judgment against me.

 

2. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. In this statement I will refer to facts relating to the claimant regarding their failure to follow recognised procedures, practices and protocols during their prosecution of this case and their failure to respond to my lawful requests.

3. There is now produced and shown to me a bundle of documents marked Ref 1. The exhibit Ref 1 contains a copy of the Default Notice served by the claimant.

 

4. There is now produced and shown to me a bundle of documents marked Ref 2.

The exhibit Ref 2 contains a copy of the credit application from served by the claimant.

5. There is now produced and shown to me a bundle of documents marked Ref 3.

The exhibit Ref 3 contains a copy of the most recent set of Terms and Conditions.

6. There is now produced and shown to me a bundle of documents marked Ref 4.

The exhibit Ref 4 contains copies of statement of account.

 

8. The respondent does not accept that the applicant has established that there is no compelling reason why there should not be a trial. The applicant has failed to supply any evidence which supports that the claim should be disposed of without a trial. The respondent would seek to draw to the courts attention the following matters.

 

 

 

THE CLAIMANTS RESPONSE TO SUMMARY JUDGMENT

9. The applicant/claimant failed to supply the respondent/defendant any documents which the applicant mentioned in their particulars of claim and which were central to the applicants’ case. The respondent asked for the documents, which were pleaded in the claim issued on XXXX 2009 both beforehand on XXX 2009 (Ref 4) and XXXX 2009 (Ref 5) respectively that may be used in court to support the claim. The applicant failed to fully supply these documents that are being relied upon, despite my CPR31.14 request dated XXXX 2009 (Ref 6), that is until XXXX 2009 posted to me from the Court.

The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence.

Default Notice

10. The Default Notice that the claimant relies on and has submitted to the court (Ref 1) doe NOT comply with the prescribed format. In that ;-

The notice that I have is dated XXXXX and gave date XXXXX as remedy.

A default notice needs to be accurate in terms of both the scope and nature of breach and that there needs to be at least 14 days to remedy such breach.

11. The Consumer Credit Act 1974 s87 & 88 together with Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies.

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain-

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7 [8A] and 9 to 11 of that Schedule 10.

 

At schedule 2 Para 3 of the regulations it states the following:

 

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.

 

12. The Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post which states:

 

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

13. Clearly defined is the fact that the default notice does not comply with the requirements as specified in Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) 3© above; as the notice only gave 10 days for compliance not 14 days as required.

14. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Notice, and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 (exhibit MDAW05) in the Court of Appeal, in this judgment Kennedy LJ states inter alia :

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

 

15. Therefore, it would be the respondents’ position that the applicant/claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective. This 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)

Consumer Credit Agreement

16. The Claimant in this application has produced a document REF 2 which the Claimant alleges to be the credit card agreement entered into by the parties. It is denied that this document REF 2 is the agreement entered into by the parties. The document clearly and evidently is not an agreement.

17. The agreement is not headed correctly as required by Regulation 2(1) and Schedule I Consumer Credit (Agreements) Regulations 1983 (MBNA2) states:

(1) Subject to paragraph (2) below, a heading in one of the following forms of words-

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may

require.

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words -"Credit Agreement regulated by the Consumer Credit Act 1974".

(3) Where the document and a pawn-receipt are combined, the words “and Pawn Receipt,"

shall be inserted in the heading after the word "Agreement".

(4) Where the document embodies an agreement of which at least one part is a credit

agreement not regulated by the Act, the word "partly" shall be inserted before "regulated"

unless the regulated and unregulated parts of the agreement are clearly separate.

(5) Where the credit is being secured on land the words "secured on" followed by the address

of the land shall be inserted at the end of the heading.

This credit agreement is therefore materially defective. If the agreement and Financial Terms and Conditions are photocopies of the original credit card agreement as the claimant states, they should be displayed as a duplex printed document or on a one face side document.

The supplied Financial & Related Conditions, the Prescribed Terms under the Consumer Credit Act 1974 s127(3) (MBNA2), are clearly not related to the credit agreement supplied and do not meet the criteria of being within the four corners of the document.

 

18. The applicant has served a copy of the agreement REF 2, which its claim is based upon. The claimant clearly states that the agreement relied upon is a photocopy of the signed application form (for simplicity, now further referred to in this document as "the credit agreement" or "the agreement").

 

The Civil Evidence Act 1995[C38 (s13)] states:

13 Interpretation In this Act

"civil proceedings" has the meaning given by section 11 and "court" and "rules of court" shall be construed in accordance with that section;

"document" means anything in which information of any description is recorded, and "copy", in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly;

"hearsay" shall be construed in accordance with section 1(2);

"oral evidence" includes evidence which, by reason of a defect of speech or hearing, a person called as a witness gives in writing or by signs;

"the original statement", in relation to hearsay evidence, means the underlying statement (if any) by -

(a) in the case of evidence of fact, a person having personal knowledge of that fact, or

(b) in the case of evidence of opinion, the person whose opinion it is; and "statement" means any representation of fact or opinion, however made.

 

By virtue of the Civil Evidence Act 1995, the credit agreement supplied by the claimant, here onward should be treated as hearsay evidence.

 

The courts power of enforcement

 

19. I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3 which states:

Where a claim is based upon a written Agreement:

(1) a copy of the contract or documents constituting the Agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

 

If the court is not minded to strike out the claimant’s statement of case, the defendant respectfully requests that the court orders the claimant to produce documentation in support of it case that complies with the Consumer Credit Act 1974, the Consumer Credit (Agreements) Regulations 1983, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, the Civil Evidence Act 1995 and CPR Practice Direction 16.

I have yet to view the original credit agreement or any other original documents that the claimant seeks to rely upon, I am aware that the civil procedure rules makes provision for the original documentation to be made available under practice direction 32. It is clear to me that since it is disputed that the documents which the Claimant seeks to rely upon as the alleged “Credit Agreement” the only way to establish truly if they are indeed part of the same document is to produce the original document before the court. In addition, I am aware that there are many regulations and statutory acts which place a duty upon the Claimant to retain original documentation inter alia- the Money Laundering Regulations, the Companies Act 1985 sections 221 and 222 etc. so it stands to reason that they should be able to bring before the court a copy of the original document

 

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 as unenforceable.

20. With regards to REF 2 these are not the T & C applicable to the original Application. The copy of the purported written agreement that the claimant cites in the Particulars of Claim, state that the T&Cs refer to the Financial Ombudsman Service for an agreement taken out in 1999.

The FOS only came into power from Part XVI of the Financial Services and Markets Act 2000 in November 2001.

21. In addition to the points raised I would ask for the court to allow me to amend my original defence as at the time I submitted the defence I did not have in my possession a full compliment of the documents which the claimant has now only part disclosed.

This despite my requests for further information and given that I am a litigant in person there are a number of other issues which have now come to light in view of the claimants disclosure and therefore respectfully request that I be given the opportunity to defend this action. I make this request with the overriding objective in mind as set out with CPR 1.

 

23. I therefore request that the court do dismiss the applicant's application for summary judgment.

 

I believe that the facts stated in this witness statement are true.

 

Signed

 

 

Dated

[Mrsmancmonkey]

Bump

[Mrsmancmonkey]

Bump

[Docman]

Hi Mrs M,

 

Your witness statement should also cover all the poins raised in MBNAs statement. It seems you have had that now. Can you post up a copy or type out the main points?

[Mrsmancmonkey]

Hi Docman

 

They are in

18 on this link.

Do you want more infor than that as I will need to scan at work tomorrow then for you?

 

Cheers Mrs M

[Docman]

Thanks Mrs M. I'll have a go at drafting something tomorrow.

 

BTW what was the date that the DN/NOA (page 7 of your docs) was sent and by what date did they state you had to comply?

[Mrsmancmonkey]

 

Here is the full statement link.

 

I will need to let you know other info tonight when I get home as its there if ok.

 

We have 3 weeks though from mid last week to get all our information in

 

DN i will let you know tonight x