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MBNA/Restons Claimforms - 2 MBNA Cards **DISCONTINUED***


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Hi all,

 

Just about to file defence online, would appreciate any comments. Thanks to MDAW for pointing me in the direction of his defence.

 

In the Northampton County Court

Claim number: xxxxxxxx

Between

MBNA Europe Bank Ltd

And

Mr xxxxxxxxxx

 

Holding Defence Full particulars of defence are in the post attached to N9B form. (you will be able to lose this if you are filing online)

 

1. Ixxxxxxxxxxxi of xxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by MBNA Europe Bank Ltd

 

2. 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 strictproof thereof.

 

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

 

4. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the

constraints of the bulk issue system).

 

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.

 

b) 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 or any other matters necessary to substantiate the claimant's claim.

 

c) 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.

 

d) 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. The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

6. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The Request for Disclosure

 

7. Further to the case, on 10/09/2009 I requested the disclosure of

information pursuant to CPR 31.14, which is vital to this case from the

claimant. Still no response and proof of delivery is held by the Defendant.

 

8. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person

 

Conclusion

 

9. In view of matters pleaded I respectfully request that the court order the claimant to 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.

 

10. 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 unenforceable.

 

11. The claimant's case cannot succeed as matters stand. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

12. 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, the Claimant's behavior is entirely vexatious and wholly unreasonable.

 

It must also be noted that.... (this doesnt make sense ??)

 

13. I respectfully ask the permission of the court that I be allowed to amend this defence and counterclaim when the claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

This claim should never have been brought before the court as the claimant would most certainly be aware of the case law quoted and that such action would have little prospect of success without the credit agreement or a copy of it, therefore I invite the claimant to give serious consideration to withdrawing this claim. Should the claimant fail to withdraw their claim I shall request the court consider costs

incurred by the defendant in defending this claim and shall forward a schedule of costs for the court to give consideration to should this proceed to trial and judgment be given in my favour.

 

Statement of Truth

 

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

Signed

Date xxxxxx/2009

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

 

 

Incidentally where it says: 1. I xxxxx of xxxxxx is the of bit my address?

 

Cheers all

 

Royal.

 

I have reworded point 5 for you and the bullet points needed resetting at point 4, other than that.. looks good to go.

:D

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Hi All,

 

Okay, today I received N149 AQ for both cases.

 

Looking through the form there doesn't seem to be much relevant to me can anybody help me with which parts I should be answering?

 

A. Settlement mediation - No I presume.

B. Location of Hearing - Location is fine.

C. Small claims track suitable ? - ?

D. Witnesses - Just myself

E. Expert report - No

F. Hearing availability - ok

G. Other info...What would normally be considered other info?

H. Fee - No I hope!

 

The background is that I sent Restons CPR 31.14 back on Sep 10th Recorded and have heard nothing.

 

MBNA were sent an SAR on October 2nd which included the £10 postal order and I have so far heard nothing.

 

If someone could have a look at the above and give some advice on my next step or links it would be a great help.

 

Thanks,

 

Royal.

 

 

Edited by royalblue1878
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Useful threads when you need help filling out Allocation Questionnaires.

 

Link Financial County Court Summons - N150

 

Directions for N150 or N149 Allocation questionnaire - Paul's guide to N149 & N150 AQ's

 

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

 

Court papers received- what now??!!**WON**CASE DISMISSED - N149 (with draft order for directions)

 

upto the eyeballs v CL Finance No CCA IN COURT ** Help ** - N150

 

The dreaded court claim came today... - N150

 

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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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Don't thank me ...I just nicked the links from 42man ;)

 

PS. Thanks 42man.

 

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Hi,

 

I recently received a default notice from MBNA which is clearly defective, posted on a friday by 2nd class post etc etc.

 

I also received a letter from a debt collection agency ( Experto Credite) stating that MBNA had sold the debt to them. This letter was dated before the default notice expired!:confused:

 

Can they do this?

 

Advice appreciated,

 

Thanks,

 

Royal.

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Hi,

 

Couple of days ago I received SAR from MBNA regarding 3 accounts.

 

Only 1 agreement which is ineligible and does not include anything other than the front page, (No t&c's) were included, the other two agreements have not been included due to archive 'retrieval issues'. No copies of any default notices have been included, only a reference to them in the comms.

 

They have sent statements and comms but the comms are mostly unfathomable due to the abbreviations used, even with the abbreviation key included.

 

Are there any links to deciphering the comms from the SAR?

 

Should they have sent the default notices?

 

I am soon to complete an AQ for two of the accounts and my head is in overload due to all the info available!

 

Thanks in advance!

 

Royal.

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If you don't understand the abbrevations in the comms log write back to MBNA and ask them to explain them.

 

If they are missing documents ask them point by point for them - properly executed agreement, default notice and proof of postage, assignment (if relevant) etc...

 

And also ask if they are unable to provide documents why they are unable to.

 

They should reply explaining the codes in the comms log (though they'll claim certain things you don't need to know) and explain why they cannot supply certain documents.

 

In our case they told us they'd supplied all documents they held, that system generated letters aren't stored and they cannot provide transcripts of phonecalls as they aren't kept in a filing system.

 

If you get them to admit they don't hold certain documents then it should stop them from supplying 'made-up' ones to the court.

 

Do you have a copy of the original Default Notice they issued?

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Hi Royalblue1878,

they can but I believe that by doing so they have terminated there own agreement. A debt can only be sold once the account is terminated. And of course you won't be signing a new one will you. Has the default notice expired? If not do not post it.

 

A great deal of people have had exactly the same series of events in the last few months.

 

Make sure you keep the envelopes, could possible be the most piece of information that you may require. Your credit file may also yield some interesting info.

 

Have you SAR'ed them yet?

 

Pumpytums

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As pumpytums has suggested, get the SAR off, specifically requesting a copy of the "Comms Log". This log will shown when they sent the DN, and show when the've charged off the account.

 

Have a look at this link and make a copy of it, as it clearly describes MBNA's definition of "Charging Off" -

 

img011.jpg picture by paulbaxter009 - Photobucket

 

If MBNA have terminated before the end of the Default Notice then it could be deemed an unlawful recission of contract, see Woodchester v Swain.

 

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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.

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.

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Hi Pumpytums,

 

Yes the DN has expired, 2nd class envelope which I kept.

 

They have been SAR'd. I received the paperwork a few days ago, incomplete, no default notices from 3 accounts, various other letters I have received in the past, missing also. Just one ineligible agreement.

 

So the DCA have no contract with me which means they cannot enforce the debt is that right? also if they send it back to MBNA what can they do?

 

According to the SAR the account was charged off 10 days before they sent the DN!

 

What is the best course of action in this instance?

 

I do have a copy of all 3 DN's unfortunately only one envelope! The DN can be seen in post 3 of this thread.

 

The one I have the envelope for is not there as it is another account not part of this thread.

 

Cheers,

 

Royal.

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If you look on my thread Vint wrote a great letter to send (the second one). I haven't sent mine yet to EC, as I'm waiting for my SAR back.

 

I know mine was sold before the DN expired too, also the DN was bobbins. No arrears, and 2nd class so no 14 days to DN expiry. Close but no cigar.

 

Pumpytums

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Were they all sent at the same time, and is it first class, second class or UK Mail?

 

Chances are they'll claim the DN is sent as per their normal procedures, so if you have a second class envelope for the other account you can show they aren't sent first class.

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The two on this thread were posted together for which I do not have envelopes. The other one was UKMail 2nd class? It had an 'S' on it.. So as you say if that is their normal procedure these 2 would be 2nd class as well.

 

Also does anyone know if they can produce a reproduction of a credit agreement and use it in court? I know that one account on this thread which I soon have to fill out an AQ for, does not have the original agreement, ie: they can't find it!

 

Also does anyone know if they can produce a reproduction of a credit agreement and use it in court? I know that one account on this thread which I soon have to fill out an AQ for, does not have the original agreement, ie: they can't find it!

 

Cheers.

 

 

Edited by royalblue1878
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They shouldn't be able to, but it seems to depend upon the judge you get.

 

In each of our three cases the order informing us of the hearing states that originals are to be brought to the hearing, whilst CPR 16 pratice direction 7.3 also states for written contracts originals should be brought to the hearing: PRACTICE DIRECTION – STATEMENTS OF CASE - Ministry of Justice

 

So if you have an order asking for original docs point out to the judge they lack of original document, and ask questions how they know it's a true copy etc...

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Need help filling out Allocation Questionnaires ?

 

Have a look at the links below (provided courtesy of 42man).

 

Link Financial County Court Summons - N150

 

Directions for N150 or N149 Allocation questionnaire - pt2537's guide to N149 & N150 AQ's

 

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

 

Court papers received- what now??!!**WON**CASE DISMISSED - N149 (with draft order for directions)

 

upto the eyeballs v CL Finance No CCA IN COURT ** Help ** - N150

 

The dreaded court claim came today... - N150

 

Help us to keep on helping.

Please consider making a donation, however small, if you have benefited from advice on the forums.

This site is run solely on donations.

 

You can make a donation

HERE. Thank you.

 

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.

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.

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These are directions that I have used I did them on a separate sheet that was submitted along with the AQ document

 

N149 Allocation Questionnaire

 

 

Section G - other information

 

1. It is requested the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimants claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and fails to comply with the requirements of practice Direction 16 in so far that it fails to comply with point 7.3 which states

 

7.3 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,

 

The claimant failings to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit act 1974 and the Consumer Credit (Agreement) regulations made under the act. The consequences of the document failing to comply with the regulations and the Act can render the agreement unenforceable even by the honourable court.

 

If the court does not consider it appropriate to strike out the claimants case as suggested above, I respectfully request that the court considers the request set out below in point 2

 

 

 

2. If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously; without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

 

 

 

Draft Order for Directions

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

 

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations

 

• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,

 

• Document, contract or deed of assignment

 

• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

 

• Copies of any statement or other document relied upon

 

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

 

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

 

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

Live Life-Debt Free

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Thank you both.

 

B3rty,

 

The bit at the bottom - 'draft order for directions' is I am thinking a doc in its own right and is presented on a seperate sheet from the other info above? Or do I present it all as one doc? (within the other info section)

 

Thanks for your help again!

 

Royal.

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No..its all one statement in section G put please see attached information and directions and show the whole lot

 

Create a header for the page and put your info in to it just in case it comes apart

 

In the XXXXXXX County Court

Claim No XXXXXXXXXXX

DCAxxxxxxx – Claimant V Your name - Defendant

Live Life-Debt Free

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