Mbna- Restons

[foolishgirl]

Did you send your AoS in on time? i.e. 14 days after service of claim form?

If so, did you put that you will defend all?

 

If you did the above you now have a further 14 days to submit your defence. I make that the 2 Nov. If they haven't complied with your CPR31.14 request by then, it will have to be an embarassed (holding) defence stating that you do not have the docs. to provide a full defence & asking the court to throw it out. If you want some help with this, post up again about the 28 Oct or if you receive any docs.

[monkeygirlindebt]

Yes, I sent my AOS in time, Ive also received from Restons today, a copy of the signed credit agreement, a copy of the credit card agreement with my new address on it, and a recreated copy of the default notice, which isnt a exact copy but the dates are the same, the letter also says that the client reamins the creditor to the agreemnet, and has not assigned its rights under it and that the termination notice is not applicable in this instance.

[foolishgirl]

Could you post up the agreements, the DN & the letter re. the termination notice (minus your personal details) please? Not sure what they mean re. the termination notice not applicable - do they mean they didn't send one?

[supasnooper]

I would also advise sending off a Subject Access Request letter to MBNA and additionally ask for a copy of the Customer Information Sytem print out or "Comms Log". This will cost £10.00 but will be worth it. Pay by postal order, do NOT sign the request letter and send by Recorded Delivery to MBNA's Registered Head Office.

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

I would also advise looking at this link; save and print off a copy for the future

 

img011.jpg picture by paulbaxter009 - Photobucket

[monkeygirlindebt]

I know I said that the copy default was the same as the original, but on a recheck, the values are different, the original default had the full amount of the balance outstanding to be paid to remedy this breach, the copy says the arrears balance needed to be paid, significantly less...

Copies of doc's (If I get this bit right)

 

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Edited November 25, 2009 by citizenB
sorted out links

[foolishgirl]

I know I said that the copy default was the same as the original, but on a recheck, the values are different, the original default had the full amount of the balance outstanding to be paid to remedy this breach, the copy says the arrears balance needed to be paid, significantly less...

 

 

 

Oh, very interesting!! They've realised when they reconstructed the copy that the original was defective & they wouldn't be able to EVER claim the full balance from you. They were obviously hoping you wouldn't have kept the original. KEEP IT VERY SAFE!!

 

When does your defence have to be in by?

Edited October 28, 2009 by foolishgirl
typos

[monkeygirlindebt]

The Court form is dated the 30th September so I think by the 2nd November 2009, however, I'm probably going to do it the 1st November 09, as I have to work late 2nd! I'm reading all the help which is fantastic, i thank you all, but I am struggling in these foreign waters:eek:

[diddydicky]

what you should do (IMO) is make sure that you have "two " bites at the cherry

 

I personally would apply right away for a strike out of their claim on the basis that they have no cause of action

 

the first DN they sent you was not a DN, it was a TN (it stated that it had ALREADY defaulted you) and claimed the full balance of the account, it was an un lawful rescission of the agreement after which they may only claim the true outstanding arrears at the time of termination (not including charges)

 

It cannot do that until and unless it has previously issued an effective DN giving you an opportunity to remedy any alleged breach

 

the DN also states that if you do so within 14 days of service upon you of the DN then it will be as if the breach had never occured- how could that be if they have already defaulted you at the Credit reference agencies and terminated the agreement

 

They should also have sent you a letter before action which it appears they did not do

[monkeygirlindebt]

I'm like a fish out of water, and even though I copied and pasted from other defences, Thank you soooo much, I worried this isn't adequate, could someone give me some advice to whether this is sufficient.

Between

************* - Claimant

 

And

 

************* - Defendant

 

 

Defence

 

 

 

 

 

 

• I, ********** of ************** make this statement as my defence to the claim brought by **************
  
• 
  
• 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, or any default notices issued or any other matters necessary to substantiate the claimant's claim.
  
• The claimant fails to plead that the claim is brought under 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.
  
• The Default Notice served on the 7th July 2009 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. 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)
   
  24. 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)
  

Statement of Truth

 

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Signed …………………

 

Date

[monkeygirlindebt]

OOh when I say I don't think this is adequate I mean everything i've copied and pasted is brilliant, I mean I don't think Ive got it right in applying it to my case, just in case anyone thinks I wasn't be appreciative, I truly am thankful for all your help.

[citizenB]

I'm like a fish out of water, and even though I copied and pasted from other defences, Thank you soooo much, I worried this isn't adequate, could someone give me some advice to whether this is sufficient.

Between

 

************* - Claimant

 

 

 

And

 

 

 

 

 

************* - Defendant

 

 

 

Defence

 

 

 

 

 

 

• I, ********** of ************** make this statement as my defence to the claim brought by **************
  

• 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, or any default notices issued or any other matters necessary to substantiate the claimant's claim.
  

• The claimant fails to plead that the claim is brought under 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.
  

• The Default Notice served on the 7th July 2009 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. 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)
   
  24. 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)
  

Statement of Truth

 

 

I xxxxxxxxxxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Signed …………………

 

Date

 

These need to be numbered not bullet pointed.

 

I am not sure whether the defence is what you need. I will ask others to look in on you.

[foolishgirl]

Monkeygirl, IMO you need to make more of the DN issue. Suggestion below for you to consider amending & adding in:

 

xxxx County Court

Case No:

 

Between MBNA

and

xxxxxxx

 

DEFENCE

 

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

2. I neither admit nor deny any allegation made in the claimants Particulars of Claim and put 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: -

 

(a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. The type of account has not been identified & no particulars are offered in relation to the method by which the Claimant calculated any outstanding sums due, the details of any default notices issued 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 with the Particulars of Claim.

 

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 with the Particulars of Claim.

4. The Defendant admits receipt of a default notice dated 7 July 2009 but puts the Claimant to strict proof of date & method of mailing of such.

5. Contrary to legislation, the default notice received by the Claimant sought to claim not just the arrears but the full balance of the account at that time. Furthermore that sum also included unlawful charges applied to this account by the Claimant, rendering the Default Notice irredeemably invalid.

6. 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. If the breach is capable of remedy, it must also specify a date not less than 14 days after the date of the service of the notice by which that action must be taken. 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).

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)

 

The Defendant therefore disputes the accuracy of the default notice, the time allowed for remedy of the breach & the sum claimed.

7. On xxxx the Defendant sent the Claimant a request under CPR 31.14 for further information to enable her to formulate a defence to this claim. The Claimant responded on xxx by remitting a copy of the default notice that the Claimant claims was sent to the Defendant on 7 July 2009. This notice differs from the actual copy in that the balance demanded has now been amended to a sum of arrears only to comply with the above quoted legislation. (Attachments 1 & 2).

The Defendant avers that this copy was not a true & accurate copy of the default notice actually received & that it was the Claimant's intention to deceive the Defendant & the court into the belief that it was in order to falsely substantiate this claim.

 

 

8. It is noted that the Claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. As this is a claim in relation to a debt regulated by the Consumer Credit Act 1974, the claimant is not entitled to do so and attention is drawn to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) where this is stated.

 

9. It is averred that no valid Default Notice has been served upon the Defendant and therefore the Claimant does not have a right of action. The Claimant’s entitlement to payment of the sum £xxxx is denied.

10. In view of matters pleaded, the defendant respectfully requests the court to give consideration to striking out the Claimant’s case pursuant to CPR 3.4:

(2) The court may strike out a statement of case if it appears to the court-

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

Statement of Truth

 

 

I believe the above statement to be true and factual

Signed

Dated

[MARTIN3030]

I would be inclined to agree with FG.

You need to go through every paragraph of the defence you have copied and make abs sure that each applies to your situ.

We have seen peeps slated for submitting templated stuff.

The absolute essential part is that you fully understand everything thats in there......in doing that you should be able to be confident that it really DOES fit the purpose for your case.

[monkeygirlindebt]

Thank you yes I've gone through it and it does apply to my case, and I've gor the legal words too:) It's fantastic, thank you very much for all your help, i'm now going to work out how to submit it, i presume I can somehow online, so here goes, thanks again:):)

[monkeygirlindebt]

I've come unstuck, it doesn't have the function for me to upload my attachments of the default notice, it says I don't have to send any evidence at this stage, hhmmmnn:confused:

[monkeygirlindebt]

I am disputing the whole claim, correct?

[supasnooper]

Yes you are disputing the whole claim.

 

All you need to submit at the moment is your defence. ( no other documents are required )

[foolishgirl]

Are you counterclaiming for unlawful charges MG? If so, if you have all the statements, you need to work out how much you've been charged, the contractural interest (that's what they charged you) & the 8% stat. interest on top. The details are here: http://www.consumerforums.com/resources/templates-library/48-bank-templates/118-interest-calculation-spreadsheets

[monkeygirlindebt]

I probably will do, but I haven't got the statements, and they have blocked my online access to get them, so i am waiting for those.

[monkeygirlindebt]

It looks as if I cant make the counterclaim unless I have the full amount of the charges, is that correct?

[foolishgirl]

It looks as if I cant make the counterclaim unless I have the full amount of the charges, is that correct?

 

Correct but you could claim submit later & pay a fee or wait & see what the outcome of this is & then submit a seperate claim. If this claim is totally dismissed, you couldn't claim the charges.

[supasnooper]

At the moment, I would advise not try to counterclaim the charges.

 

A Judge may see a counterclaim of charges as an admission of debt and may therefore rule against you.

 

Keep the reclaim for another day.

[monkeygirlindebt]

Ah I think I may have made a boo boo then, I put that I was may make one one but as I didn't have the info, I ticked the box, whoops!

[monkeygirlindebt]

Ive just checked and it appears that my claim has been moved to another court, I wonder what happens now....

[foolishgirl]

Don't worry - it's because the POC was issued by Northampton which is just a clearing centre. If it hasn't been transferred automatically to a court near you, you will get the opportunity to state that you wish it so on the AQ when you receive it.