wmr / Help with OPTIMA LEGAL, please.

[GeoffreyAlby]

The Need for a Default notice

 

"20. It is neither admitted nor 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. And that the said notice gave the prescribed period of time to remedy any breach"

 

 

Copied this Paragraph from the Defence.

 

If it is neither admitted or denied that a Default Notice was received , how is it possible to argue that it is invalid?

[wmr]

amandcole: Here goes with the defence. I feel this is sufficient as I have (as you know) irons to throw later. Comments would be appreciated please. Any spelling mistakes will be of course corrected

wmr

-------------------------------------------------------------------

DRAFT OF DEFENCE:

 

In The NORTHAMPTON (CCBC) COURT

CLAIM NO: XXXXXX

CLAIMANT: MBNA EUROPE BANK LTD,

PO BOX 30,

CHESTER BUSINESS PARK,

CHESTER CH4 9FB

 

AND

 

XXXXXXXXXXXXXX (DEFENDANT)

 

Defence:

 

I xxxxxxxxx xxxxxxxxx of...........................

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 or deny any allegations 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 the present, inter alia:

 

4 The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimants 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 to 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 refered to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimants claim. The agreement the claimant makes referenceto should be fully regulated under the "Consumer Credit Act 1974.

 

b)The claimant did not send a "letter before action" as required under the Pre-Action Protocols. The defendant puts the claimant to strict proof that this was served on the defendant by registered mail and that the claimant serve proof of this by the royal mail track and trace system and bar code numbers.

 

5) Notwithstanding matters pleaded, it is denied that the claimant has established a cause of action or that the claimant has a valid claim against the defendat. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

---------------------------------------

 

5: Firstly I will address the issue of which Act is relevant in this case,in case it is suggested that due to the amount claimed any agreement should fall under the "Consumer CreditAct 2006", it is drawn to the courts attention hat schedule 3, s11 of the Consumer Credit Act 2006, prevents s15 repealing s 127(3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the "Consumer Credit Act 2006" section 15 of the 2006 Act has no effect and the Consumer credit Act 1974 is the relevant act in this case.

 

6: For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Excerpt taken from Consumer Credit Act 2006(c.14)Statute Law Database accessed Thursday December 18th 2009.

 

The repeal of this Act of:-

 

(a) the words (subject to subsections (3) and (4) in subsection(1) of section 127 of the 1974 Act.

(b) subsections (3)to (5) of that section, and

© the words "or 127(3)" in subsection (3) of section 185 0f that act,

has no effect in relation to improperly-executed agreements made before the commenement of sections 15 of this act.

The Request for Disclosure

------------------------

7. Further to the case, on 25th January 2010 I sent a letter by recorded post requesting the disclosure of information pursuant to CPR 31.14 which is vital to this case from the claimant. Post Office tracking number BR196106842GB.

8:To date the claimant has not replied to the defendants valid request.

 

9 The courts attention is drawn to the fact that without disclosure of the requested documentation pursuant to the the Civil Procedure Rules I have not yet had the opportunity to assess if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (S1 1983/1553) which was amended by Consumer Credit (Agreements) amendment Regulations 2004 (S12004/1482).

 

The prescribed terms refered to are contained in schedule 6 columns 2 of the Consumer Credit (Agreements) Regulations 1983 (S1 1983/1553) and are inter alia: - a term stating the credit limit or the manner in which it will be determined or that there is no credit limit,a term stating the rate of any interest on the credit to be provided under the agreement and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments ,which may be expressed by reference to a combination of any of the following:

 

1:Number of repayments

2: Amount of repayments

3: Frequency and timing of repayments

4Rate of repayments

5:The manner in which any of the above may be determined: or in any other way, and any power of the creditor to vary what is payable.

 

10; The courts attention is drawn to to the fact that where an agreement does not have the prescribed terms as stated in point11 it is not compliant with section 60(1) Consumer CreditAct 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(S1 1883/1553) and the Consumer Credit (Agreements) amendments Regulations 2004 (S12004/1482) the agreement cannot be enforced.

 

11: It is submitted that if the credit agreement supplied falls foul of the "Consumer Credit (Agreements) Regulations 1983 (S1 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) of the Consumer Credit Act 1974,. In addition there is case law from the Court of Appeal which confirms the prescribed terms must be contained within the body of the agreement and not in a separate document.

 

12: The Need for a Default Notice

------------------------------

 

13: 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. And that the said notice gave the prescribed period of time to remedy any breach.

 

14: I put the claimant to strict proof that any Default Notice sent to me was 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.

 

15: The prescribed format for such documentation is laid down in Consumer Credit (Enforcement Default and Termination Notices) Regulations 1983 (S1 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) amendment regulations 2004 (S1 2004/3237).

 

16; Failure of Default Notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd -v- Swain & co- (2001)GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt,would which would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror ---v- Woolwich Building Society - (1996) 4 A11 ER 119)

 

Documents in Court - Civil Evidence Act 1995

--------------------------------------------

 

(e) If copies of any of the above documents are to be relied on in court rather thn the originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act including but not limited to:

(i)A copy of the procedure(s) used for copying, storing and retrieving documents.

(ii)A copy of the relevant log entry showing the time and date of the scan or copy, the name and member of staff making he copy, the method used for copying storage and retrieval and time and date of destruction of the original document(s).

(iii)Copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with.

(iv) Copies of Quality Assurance accreditaton certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

 

If any of these are unavailable or incorrect I would respectfully request that the admission of reproduced documentation is denied an the claim is struck out.

 

Claim for Interest:

-----------------

 

17: The claimant has included a claim for interest which is pleaded in the alternative as a contractual or a claim pursuant to section 69 of the County Courts Act 1984. The claim for interest pursuant to the County Courts Act is by virtue of County Courts (Interest on Judgement Debts) order 1991. Paragraph 2 (3) (a) of the order states that Interest shall not be payable under this order where the relevant judgement is given in proceedings to recover money due to under an agreement regulated by the Consumer CreditAct 1974.

 

18: The claimant also claims interest from Judgement date until payment.It is denied that there are any contractual terms that allow a claimant to claim ths,or any other interest after judgement.

 

Conclusion:

---------

19: The defendant denies that there has been any failure to make payment in accordance with the alleged contract. The claimant has failed to produce a copy of any agreement in the requisite timescale /at all,and in the absence of such an agreement which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers to make said payment.

 

20; Without disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant,nor am I able to assess if the agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtueof s127 "Consumer Credit Act 1974".

 

21: In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimants 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.

 

22: Alternatavely, should the court order the claimant to produce the necessary documentation, I will be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement accordingly.

 

23: The defendant is embarrassed.

 

Statement of Truth

-----------------

 

I believe the above statement to be true and factual.

 

Signed...xxxxxxxxxxxxxx

 

Date:xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Edited February 15, 2010 by wmr

[wmr]

Geoffrey: I raised this with Amandcole. I feel that we can later adjust this if we have to fire off more issues! However before sending I would welcome any comments. I know I got it and it was faulty of course.

Any comments please welcomed on this section.

wmr

[emandcole]

Geoffrey: I raised this with Amandcole. I feel that we can later adjust this if we have to fire off more issues! However before sending I would welcome any comments. I know I got it and it was faulty of course.

Any comments please welcomed on this section.

wmr

 

Yep, doesn't matter if you have one already. Why do the work of the claimant for them? Make them produce one and if for example they come up with one that is different to the one you already have (eg it's compliant) you can ask the court why the one they have now provided is different to the one you have (that isn't compliant.

 

It's all about making them do everything and trying to introduce doubt and holes in their claim, they are after all taking you to court. Their claim should be watertight and not reliant on you being ignorant of the facts.

[wmr]

Hi Emandcole:

 

Thanks for your input on the "DD". Does it look OK do you think as it is?

 

By the way: received from "Optima" Saturday, exact copy of the application form MBNA sent, plus, copy of the DN, plus...wait for it

 

Dearxxxxxx

Thanks for getting in touch with us recently. We're pleased to enclose a copy of your most recent terms and conditions.

 

Don't forget some of the other fantastic features on your account:

 

Log on to www.mbna.co.uk where all your account information is at your fingertips. You can check your balances and recent transactions, review your last 6 statements,set up a Direct Debit, pay your bills and much more. You can even go paperless!

 

We'd like to take this opportunity to thank you for your custom and we look forward to hearing from you soon.

Yours sincerely,

Sean Humpheys.

Director of Customer Satisfaction.

---------------------------------------------

Priceless, absolutely!

My normal reply to something like this would be:-

 

Dear Mr Humphreys:

Thank you for your attachments; your comments have been chewed over and digested accordingly and passed! May I respectfully suggest that you take your attachments and avail yourself a visit to the nearest taxidermist!

kind regards

Honestly; what sort of people are these working at this place?

 

wmr

[emandcole]

You wouldn't be the first to think that! In essence these people are not aware of the laws and regulations and merely re-gurgitate office templates from their files in order to send you something of a response.

 

A recent example is a letter from a customer service advisor calling my bluff with a Letter Before Action inviting me to commence legal action. They were stuffed completely as:

 

 

• No agreement despite numerous letters since October 2008
  
• Six seperate DCA's have handled it
  
• Invalid default notice that was registered far too late with the CRA's
  
• Subsequent unlawful rescission based on back of that default notice
  
• Lots of other stuff
  

I demanded they remove all third party involvement and cleared all reference to the debt with the CRA's unless they could provide me with any documentation to support their supposed 'right' to deface my credit file and she just wrote back effectively saying do what you want! Will be issuing next month against them and a letter back to them confirmed this and included the sentence "I do trust this matter was referred to your legal department before you rejected my reasonable requests?"

 

No promotions for her I think. The above example shows they'll say and do anything, even when they haven't got a leg to stand on.

 

----------------------------------------------------------------

 

As for your defence it does need work but it will suffice for now as we'll need to rework it once/if the claimant provides the info you're still waiting for. Importantly it demonstrates that the claimant is frustrating matters and that you need the intervention of the court to order the release before you can comment fully either way. If the claimant even at this stage realises that you're fighting them and that they have to produce important documents (that they may not have or are insufficient) this can change matters in your favour...we'll have to wait and see.

 

There are some typo's in your defence and a few bits here and there that need tidying up. Get the spell checker out and also watch for the ; instead of the : after the numbers at the side, spotted one somewhere.

 

What about the PPI issues too? Big subject and one that confuses matters for the claimant. I would definitely get this into the defence and ask for the claiamant to produce info on it as you believe the policy was mis sold as it was inappropriate for you . Did you have no knowledge it had been added? You wouldn't have requested it as you knew it was inappropriate for you . More doubt for them as the amounts they are claiming are demonstrably inaccurate and expose them to a counter claim.

 

Check once more that your defence is completely applicable to you, you'll know when you're happy with it. Just imagine you can't speak and this bit of paper is all you have to express the points you disagree with. Keep it concise, snappy and interesting whilst demonstrating that the claimant has not presented matters in their true light. All good for you.

[wmr]

Regarding The "ppi". Should I Make Mention Of This In The Defence Statement And Attach Copy Of The Letter To Them, Or, Should I Hang Back. They Were Sent This Last Weekend So Will Be Aware Of It. Copy Was Sent To Optima Also To Stir Matters!

Any Comments Please. Bearing In Mind The Figure Within The Claim Includes This £960 + Which They Have Charged Me Over The Years!

[emandcole]

Regarding The "ppi". Should I Make Mention Of This In The Defence Statement And Attach Copy Of The Letter To Them, Or, Should I Hang Back. They Were Sent This Last Weekend So Will Be Aware Of It. Copy Was Sent To Optima Also To Stir Matters!

Any Comments Please. Bearing In Mind The Figure Within The Claim Includes This £960 + Which They Have Charged Me Over The Years!

 

Would include the basics of the PPI issue, enough to allow a judge to read it and raise an eyebrow. As for copies of letters etc leave all of that aside and save it. It is the claimant at present who is being difficult and not you. You'll have plenty of opportunity to get your weapons out, just need to use them at the right time.

 

As you've already written to the claimant and advised them of the situation it is for them to respond appropriately but you have the added advantage of firing across their bow. They'd be stupid to ignore such an important issue, especially if you can determine the fact that the PPI provider incentivised the sale of PPI by rewarding, financially or otherwise, the credit provider for 'selling' you this cover without your knowledge.

 

Let's face it, they added it for some reason when it was inappropriate for you. That clearly wasn't in your best interests so who gained from this and why? Exactly .

 

Such undisclosed interests in your account are unfair and if this was the case the creditor should have disclosed the fact in writing that they were benefiting from such arrangements. I doubt very much they would have done this.

[wmr]

Hi Emandcole:

Friday is the last day for the defence. I have re-written it ,(and of course tidied up the missing letters on words etc,) and I feel it looks good. In the last section ( the bottom two paragraphs) I kept till last, I added the PPI and enclosed copy of the letter to them (MBNA) pointing out all the dates of my 5 letters to them. I asked the court to take into consideration the claimed amount included the £960 + of PPI charges and interest and that it made the claim incorrect. I also included the copy they sent me regards the "Charge on Property" and copy of my reply pointing out and detailing my paragraph regarding accepting the £3, and the section regarding the "Pre-Trial protocol",and wasting the courts time etc, ec.

 

I thought by adding the 5 copies it would make interesting reading for the judge.

 

Anyway...it's gone off now and all your article (where relevant) is included.

I will keep you posted. It went Recorded so should be there tomorrow!

kind regards,

wmr

[emandcole]

Excellent. Will be a good solid foundation to work from as and when we find out what the claimant is up to.

[GeoffreyAlby]

Anyway...it's gone off now and all your article (where relevant) is included.

I will keep you posted. It went Recorded so should be there tomorrow!

kind regards,

wmr

 

I just wanted to clarify, you say you posted recorded delivery your defence but it is possible to send a defence online through the court website rather than posting it?

[wmr]

Geoffrey: Yes it is possible I see. However,, as I had a few attachments I thought it best by post, as I wasn't sure if you could do attachments.

[emandcole]

I think posting recorded is always easier

[wmr]

Emandcole: Could I pick your brains again please; not about our MBNA!

 

"Post Office Cards" : Received a 'phone call las Friday from a lady at "Direct Legal" who stated that they had bought my account from "Post Office Financial (Cards) (Bank of Ireland). They said it was £1800. I said I knew nothing about this as I had been writing since November last to "PO Cards" and they were just adding charges and not replying. The only one letter was stating in Nov, that they would not accept my offer of £3 as all others. They have ignored all my letters as I say. The lady at DCL said she was very surprised and yes they should have advised me that they were selling to them and asked if I would aggree to pay £1. She said ...we are willing to work with you on whatever you can afford! She said you will have a letter from us in about 3 days on this.

 

Tuesday this week a letter arrived demanding £1800! stating their clients were..."The Govenor of Bank of England Post Offices"!!!

Tuesday: Another letter arrived confirming I should pay £1 from March!

(same mail)

NOW GO BACK TO LAST FRIDAY & THE PHONE CALL FROM DLC!

 

When I finished this converse I went into the file of "Post Office Cards" and my copy letters (unanswered) and found a NOTICE DATED 12TH JAN,

....Account....... "We refer to the above account and advise you the facility has been revoked. We formally demand repayment of the entire debt and proposal for discharge etc.

Failure to respond immediately will result in further action to recover.

 

There has been no "Default Notice" served and none received!

 

They have, in my opinion "Rescinded the Agreement" unlawfully.

 

I sent a "Recorded Delivery" letter with copies of all my letters and stated that they had not issued "DN" and had not responded to my letters but had, in my view made.."Unlawful Recission", asking for a figure on the arrear. I pointed out that the charges for late payment etc, had already been complained of in my letters and not responded to. I also made mention of the fact that DLC had called stating they had bought the debt.Also that I had no letter from them stating they were selling it.

 

I sent a copy to DLC by fax on the FRIDAY EVE 9pm. I find it odd that on the Tuesday by 1st class post I received the demand from DLC saying they were acting for "Post Offices" ,when on the early afternoon Friday they phoned to say they had bought it!

 

I think I have done right sending a "Unlawful Recission" Notice to the PO.

More so NO default notice delivered.

 

Comments would be appreciated please.

wmr

Edited March 8, 2010 by wmr

[emandcole]

Emandcole: Could I pick your brains again please; not about our MBNA!

 

"Post Office Cards" : Received a 'phone call las Friday from a lady at "Direct Legal" who stated that they had bought my account from "Post Office Financial (Cards) (Bank of Ireland). They said it was £1800. I said I knew nothing about this as I had been writing since November last to "PO Cards" and they were just adding charges and not replying. The only one letter was stating in Nov, that they would not accept my offer of £3 as all others. They have ignored all my letters as I say. The lady at DCL said she was very surprised and yes they should have advised me that they were selling to them and asked if I would aggree to pay £1. She said ...we are willing to work with you on whatever you can afford! She said you will have a letter from us in about 3 days on this.

 

Tuesday this week a letter arrived demanding £1800! stating their clients were..."The Govenor of Bank of England Post Offices"!!!

Tuesday: Another letter arrived confirming I should pay £1 from March!

(same mail)

NOW GO BACK TO LAST FRIDAY & THE PHONE CALL FROM DLC!

 

When I finished this converse I went into the file of "Post Office Cards" and my copy letters (unanswered) and found a NOTICE DATED 12TH JAN,

....Account....... "We refer to the above account and advise you the facility has been revoked. We formally demand repayment of the entire debt and proposal for discharge etc.

Failure to respond immediately will result in further action to recover.

 

There has been no "Default Notice" served and none received!

 

They have, in my opinion "Rescinded the Agreement" unlawfully.

 

I sent a "Recorded Delivery" letter with copies of all my letters and stated that they had not issued "DN" and had not responded to my letters but had, in my view made.."Unlawful Recission", asking for a figure on the arrear. I pointed out that the charges for late payment etc, had already been complained of in my letters and not responded to. I also made mention of the fact that DLC had called stating they had bought the debt.Also that I had no letter from them stating they were selling it.

 

I sent a copy to DLC by fax on the FRIDAY EVE 9pm. I find it odd that on the Tuesday by 1st class post I received the demand from DLC saying they were acting for "Post Offices" ,when on the early afternoon Friday they phoned to say they had bought it!

 

I think I have done right sending a "Unlawful Recission" Notice to the PO.

More so NO default notice delivered.

 

Comments would be appreciated please.

wmr

 

Hi wmr, as in PM best to start a fresh thread on this so confusion doesn't occur in the future with the litigated case.

 

Is this a credit card account? Do you have access to your credit file to check if a default has been issued? Start a fresh thread and post the link up - we can explore it from there.

[wmr]

Thanks: I have opened a new thread under

"wmr v Post Office Financial Services" for your information

[vint1954]

Hi wmr,

 

Just to update, have you received the documents back from you CPR 31.14 request.

[vint1954]

Might pay to phone the court tomorrow, to check the position.

[vint1954]

wmr,

 

The basic proceedure is that when you receive the claim, you acnowledge it and put your defence in within the prescribed timeframe.

 

You should request from the claimant, usually through their solicitors, the documents mentioned in their POC, so agreement, DN, T&C's and NOA if applicable. This is done under CPR 31.14. They need to supply legible copies.

 

If they fail to supply, you can request visible inspection of the actual documents under CPR 31.15.

 

Even if you have not been supplied with the documents, you must put in a defence. This is usually referred to as an Embarrassed Defence. You are basically saying that you are being frustrated by the claimant, in providing a full defence.

 

Once you have the documents, you must file a full defence.

 

The claimant will often use Summary Judgement as a scare tactic. This is where they apply to the court for judgement if you have not filed a defence. The dificulty is that if they provide some documents and some illegible documents, they may try and hoodwink the court into thinking that you are not defending robustly and apply for an SJ.

 

The best advice I can give, is to watch the dates required for action by you. Don't just leave it be and hope for the best. Read as much as you can on others threads, especially the one by Pt.

 

Understand fully the situation that you are dealing with. You may have to stand up in court, without the benefit of CAG.

[emandcole]

Hi WMR, The PPI appears to have them in a muddle, quite rightly too as it's a real thorn in their side. As for them stating the PPI was previously refunded I would be keen to see evidence of this as until that is provided it is nothing more than a guess I imagine...I would question why a provider would voluntarily return a sum of money to you or an account when no complaint was ever made? Presumably issues of PPI were not raised or addressed at any point in the past?

 

Of course they reckon you have no chance, they simply want you to believe that and to fold before they have to explain their claim in the light of the court. A part 36 offer made after such comment is clearly part of their tactical approach to all of this.

 

The offer is for you to consider of course but bear in mind this amount does not include their costs, which on acceptance of their offer you would have to come to an arrangement about.

 

My opinion would be that you still have a good argument with valid questions they need to answer but as ever any decision is yours to make as you see fit. The fact they've dropped a substantial chunk of the amount claimed may suggest they recognise the strength of your position and of course they have little to lose by testing your resolve with this.

 

Having just turned to your other PM detailing their offer I feel very strongly that they are pushing the boundaries here. It is not for them to state to you that having reviewed your defence that there is no real prospect of you succeeding at trial. To then threaten you with a summary judgment based on their own biased opinion is very poor.

 

An SJ would only be granted if a judge has had the full submissions from the claimant and the defendant and determined in the interests of both parties (time, costs etc) that one of either party really hasn't got a single argument to support any disagreement in claim or defence. Clearly, you are nowhere near this with the claimant being the one who has failed to provide all of the documentation you require. If anything you have a stronger argument at the moment .

 

You've not even had allocation questionnaires issued yet have you?

 

Given the fact that it is they who are frustrating matters (I believe, please correct if I'm wrong) they are hardly in a position to be banging on about obtaining an SJ against you. It's all bravado I say, you've got them on the ropes and they know it. Besides, the embarrassed defence you submitted was merely a holding defence, there are other issues you can add once you have more information/documentation if they ever provide it . We'll go to town on it once/if all of that has been provided to you.

 

So, in my opinion...and that's all it is...they are trying to scare you into accepting something and trying to threaten something they are not yet in the position to obtain in order to make you buckle.

 

I would write back, recorded as always (protect that signature) and ask for details surrounding this supposed refund of the PPI amount. Unless I'm forgetting something you wrote earlier I was under the impression no previous PPI issues were ever raised so quite how they can state you've had this is a bit odd...please correct me if that's the case as it's very important.

 

Try to get the Part 36 offer you PM'd me on here too, it's of no consequence from a spy point of view and will allow others to stay up to date and offer their advice too.

[wmr]

Hi Emand

Thanks so much for your input.

First the PPI. When they sent me the copy of the "Application Form" when I sent for it I noticed that in the PPI section a tick was placed. I knew that I never bothered with that column in any application and always left it blank.

This is when I realised something was not correct. I went back to 2000 in my file on the account and hello... debits were on the statements for a year and a half. I found 4 letters I had sent telling them I did not request this and to stop and repay!

 

Due to my travel on the business (1000 miles a week) I sent those letters about 3 months apart. My last one confirmed that at last they stopped it and I stated per my other letters I wanted my money back.

With the mist of time the letters went in the backburner and I forgot about this until now. Of course they had opened up a "can of worms".

 

My point is: the Application Form (sent as a agreement) with adverts on the back had obviously been "doctored", which is serious I feel.

 

No wonder none of my letters were answered. I now of course have raised this with the MBNA lot by "Recorded Delivery" AND fax. I asked for evidence of anything I have signed for PPI......no reply at all!

I forwarded a further letter (I gave them 7 days to produce a signed Insurance document), and still nothing.

The only thing was a letter from "Vice president" of MBNA asking for 4 weeks to look at it. Last week another one asking for further 4 weeks.

I have had absolutely no acknowledgment about the PPI.

Strange therefore to be told in this letter from Optima....as a separate issue, the PPI has been refunded! I don't know who to; I have had no cheque yet.

 

All Optima sent me on my CPR31 request was exactlythe same: A copy of the Application Form (Optima actually stated that on the cover letter. NOT AGREEMENT but "application form". (b) Copy of the DN (faulty), and copy statement. ALSO cover letter from MBNA thanking me for the business!!.

 

I am writing today to Optima and will send a file copy by "e-mail" and hard copy "Recorded" with copy to MBNA asking for copy of the cheque and cover letter they are supposed to have sent.

 

Would I have to get the amended defence in within this 21 days to the court and obviously now I have only the application form and no agreement and although I sent a letter stating this they have not responded to it. So we have.....

1) No Agreement (only application - doctored to add PPI)

2) Faulty DN date wise. Included in this figure is obviously the PPI.

3)No Notice before action.

 

The DN is already on my thread asyou know.

 

I am attempting now to put up the letter from Optima.

 

Any thoughts onward and should I move with defence now all they have supplied is "Application Form" and faulty DN.

Thanks to you

 

PS: I am sending off today a complaint to "OFT" with copies of the statements and my 4 letters complaining that it was added without my agreement and I signed no insurance papers. Despite requests they have not even acknowledged my letters. etc.

Optima March 16 2010 scan.pdf

Edited March 16, 2010 by wmr

[emandcole]

Well, I just 'won' my case this morning, the other side issuing a notice to discontinue that I won't be accepting. It's not finished yet but is effetcively over save as to costs and my counterclaim .

 

So...let's keep up the work here and see if we can get you a good result as well. The offer as discussed earlier should always be considered seriously as it can sometimes be better to negotiate if things are shaky on your side. However, you still have very valid arguments and the claimant is still floundering, probably the reason an offer was made in the first place.

 

Therefore it seems reasonable to persist with your questionning so your letter asking for evidence that a refund was given makes sense. Interesting to note that Optima are brave enough to tell you by letter that you haven't got a leg to stand on but no-one is prepared to put their own name to that on the letter . Tells you a lot eh?

 

The OFT is a good move as it complicates matters for the claimant and if upheld adds weight to your defence. As for the defence etc what are the dates you need to abide by?

[wmr]

Hi Emand:

Fantastic news that you won ! Congratulations. Isn't it just lovely to see how we "put upon folks" can let these people see that we all have brains also. Much better brains in most cases.

 

I have the letter to put up beneath to Optima sent off today, copy to MBNA by fax.

 

I know they are offering a cut but I just have not got anything like that. Thats just why I will plod on.

 

I sent the embarrassed defence you helped me with late February.

I had a letter from the court stating that it had been received. They were sending copy to Optima (that was Feb 17th ) They said in the letter if Optima wished to continue they had to contact the court in 28 days. That would be March 19th say I think (2 days for it to get to them).

After that date the claim would be "stayed". Only action claimant can make then is for application to a judge to lift it.

 

What do you think on sending in defence (dud DN/No Agreement/also PPI ?

Congratulations again as I know you work hard on this web emand.

see letter below....

PPI Scan March 16 Debt Forum.pdf

[emandcole]

Think I would be tempted to let them stall as this gives the OFT more time to review your complaint. You've complied with court directions and the claimant is more than aware of the issues you've raised. You are also waiting for the claimant to provide proof that any PPI payment was sent to you so the ball really is in their court at the moment.

 

If they can't provide that proof it will strengthen your argument and they will have to explain why they issued a statement that maintained payment had been made already when they've been unable to show how any such payment was ever made. Introduces doubt as to their credibility, exactly what you're after.

[wmr]

Hi Emand

 

Had a word with OFT today, and they transfered me to the local area North-East.

I told the story about the "PPI" and said I had the papers to go to OFT with the complaint. When I told him about the "Application Forms" tampered with and the solicitors letter yesterday saying they had refunded £1500 + he said he thought it should go to "Trading Standards" criminal division , in view of the fact they stated they had returned the monies, and the altered application form..

 

He also said I should ring "Financial Ombudsman" about the PPI side. I did; they seemed to try to get out of it saying the "statute of limitations" was exceeded (2000). I told them to listen to me till I had finished speaking and once I told them about the letter yesterday from Optima saying they had refunded £1500, she went for advice; came back and said...we want your account number with MBNA please if that is ok!....yes.... and she said we will be writing to MBNA for an explanation and to tell them it must be sorted in 8 weeks!

 

So...by 2 calls today.... it would be nice if "criminal team" at "Trading Standards" investigated MBNA on the "PPI" mystery,and that letter from "Financial Ombudsman" (which she said would go to them in 7 days).

 

Thought you would all be interested and of course emand..