MBNA/Restons for Diddydicky case

[diddydicky]

here are the POC's from restons for mbna

 

The claimant claims payment of the overdue balance from the defendant under a contract dsted on or about XXXX/04 in the sum of xxxxxxx inclusive of interest to the date of this summons at 8% per annum from xxxxxx to xxxxxxxx

 

PARTICULARS a/c no@-XXXXXXx

 

DATE ITEM VALUE

 

XXX default balance xxxxxx

 

Post Refri CR nil

 

interest xxxxx

 

total xxxxxxxx

 

together with

 

interest under s69 County Courts Act 19 at the rate of xx pence per day to the date of judgement or sooner payment

 

 

 

 

I have acknowledged the claim online and the expiry date (14 days) of the CPR 31.14 and CPR 18 requests is 18 Jan The defence has to be in by TODAY (unless any allowance is given for the xmas bank holidays)

 

 

Restons have refused (in writing) to comply as below

 

here is the proposed defence and strike out application

 

 

any input from the legal bods would be appreciated, is it overcooked?

 

 

 

 

 

 

 

 

 

 

 

In the XXXXXXXXXX COURT Claim number*

 

Between

 

 

 

xxxxxxxxxxx- Claimant

 

 

and

 

 

 

 

xxxxxxxxxxxx- Defendant

 

 

 

 

 

 

Defence

 

1.*I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

Except where explicitly stated below the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.

 

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

 

3. The claimants' particulars of claims 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) 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, the method the claimant calculated any outstanding sums due, 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

 

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

 

d) A copy of any termination notice served under Consumer Credit Act on the alleged account, has not been served

 

e/ The claimant has failed to disclose whether the alleged contract is regulated by the consumer credit act 1974

 

f/ The account number mentioned in the particulars of claim refers to an account which was regulated by the consumer credit act 1974

 

g/ The claimant claims interest pursuant to s69 County Courts Act . Such interest may not be claimed on an agreement regulated by the consumer credit act

 

It is averred that the claimants claim is vexatious and is an abuse of the court process.

.

A CPR31.14 Request for a copy of the contract mentioned in the Particulars of Claim was sent to the claimants solicitors Restons and dated 4 January 2009

 

A Request under CPR18 also dated 4 January 2010 was sent to the claimants solicitors Restons for further particulars which were not mentioned in the Particulars of Claim and included copies of any current terms and conditions and the terms and conditions applicable to the account at the time it was opened, details of how the sum mentioned in the particulars of claim was arrived at and a copy of any default or any other notice of enforcement

 

The claimant has made a written refusal to comply with the above CPR requests .

 

The claimants solicitors Restons acknowledged receipt of the above requests in a letter of 7 January 2010, and confirmed that they will not comply

 

The basis on which they refuse to comply with the CPR 31.14 and 18 requests is that their letter dated 7/1/2010 retrospectively introduces a company policy that they will not respond to unsigned correspondence since 1 January 2010

 

 

- 2 -

 

 

Restons, initially instigated correspondence with me on 2 October 2009 and since that time have been in regular correspondence with me in this matter without the need for signatures on my letters . They have clearly been content as to my identity and the fact that they are corresponding with the correct person. It is averred that Restons are seeking to deliberately frustrate the court process and are acting vexatiously

 

In response to many requests for the claimant to provide a true copy of the executed credit agreement , including before the client issued a court action the claimant has supplied only a “reconstituted “ agreement.

 

It is averred from the conduct of the claimant that he does not have an original agreement to produce to the court in support of it’s claim

 

5. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

6. I respectfully request the courts permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim

 

I respectfully request that the court consider striking out the claim under cpr 3.4.2(a)and (b) because it is not fully particularized, does not offer any legal cause of action and has no realistic chances of success.

 

In the alternative I respectfully request that the court consider striking out the claim under cpr 3.4.2© because, in light of the failure to respond to both cpr 31.14 & 18 requests, the Claimant is unable to substantiate their claim with documentary evidence.

 

Where this honourable court decides not to strike out the claimants claim , the defendance seeks and order from the court that the proceedings be generally stayed for a period of 28 days to allow the claimant to further particularise its claim ad clarify the terms under which it claims against the defendant in such details as required by CPR part 16, and that the relevant documents previously requested by the defendant in his CPR 31.14 and CPR18 requests dated 4 January 2010 are disclosed prior to the defendant being expected to submit a defence, and in ordering that the claim be struck out without further notice if the claimant does not take such action.

 

Statement of Truth

 

 

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

 

Signed ..............................................Date …………………………..

Edited January 15, 2010 by diddydicky

[johnerog]

S & S

[johnerog]

Do a company of solicitors realy believe that a 'company policy' trumps the court?

[diddydicky]

aghhhhhhh

 

just realised that the deadline is today (bloody christmas)

[citizenB]

That looks fine to me dd.

 

I imagine that you have until 12 midnight to submit !

 

I hope that is inside the 8,000 characters allowed .

 

[slick132]

HI DD, looking in as asked.

 

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 filed and served

 

Same for 2 © and (d)

In response to many requests for the claimant to provide a true copy of the executed credit agreement , including before the claimant issued a court action the claimant has supplied only a “reconstituted “ agreement.

 

If the honourable court decides not to strike out the claimants claim, the defendant respectfully seeks directions from the court that the proceedings be generally stayed for a period of 28 days to allow the claimant to further particularise its claim and clarify the terms under which it claims against the defendant in such details as required by CPR part 16. Such directions to further require that the relevant documents previously requested by the defendant in his CPR 31.14 and CPR18 requests dated 4 January 2010 are disclosed prior to the defendant being expected to submit a defence.

 

If the claimant fails to comply with the courts directions, then the claim be struck out without fourther notice.

******

Just a few typos and a bit of a re-jig at the end.

 

Comments from others ?

[diddydicky]

That looks fine to me dd.

 

I imagine that you have until 12 midnight to submit !

 

I hope that is inside the 8,000 characters allowed .

 

 

thanks, well i aint going to count them

[diddydicky]

HI DD, looking in as asked.

 

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 filed and served

 

Same for 2 © and (d)

In response to many requests for the claimant to provide a true copy of the executed credit agreement , including before the claimant issued a court action the claimant has supplied only a “reconstituted “ agreement.

 

If the honourable court decides not to strike out the claimants claim, the defendant respectfully seeks directions from the court that the proceedings be generally stayed for a period of 28 days to allow the claimant to further particularise its claim and clarify the terms under which it claims against the defendant in such details as required by CPR part 16. Such directions to further require that the relevant documents previously requested by the defendant in his CPR 31.14 and CPR18 requests dated 4 January 2010 are disclosed prior to the defendant being expected to submit a defence.

 

If the claimant fails to comply with the courts directions, then the claim be struck out without fourther notice.

******

Just a few typos and a bit of a re-jig at the end.

 

Comments from others ?

 

thanks slick- appreciated

[diddydicky]

i decided to file it on sunday as nothing will happen now from other side

 

i WAS confused as summons said defence 28 days from date of ISSUE whilst the receipt for the acknowldgement said 28 days from date of SERVICE

 

wish they would make my mind up!

[pedross]

i decided to file it on sunday as nothing will happen now from other side

 

i WAS confused as summons said defence 28 days from date of ISSUE whilst the receipt for the acknowldgement said 28 days from date of SERVICE

 

wish they would make my mind up!

 

I think if you submitted an acknowledgment within 14 days from date of service (issue + 5) you then had another 14 days.

 

Disclaimer: Check your paperwork I don't want you suing me.

[diddydicky]

do i need to exhibit any of the letters i have referred to?

[slick132]

Check carefully on the date for filing your defence. I think you'll have seen the following (from HM Court Service site) on Jason's thread but, just in case, ......

 

Limited time

 

You should respond to this claim within 14 days of the date of service. You can respond to the claim using this online service, alternatively, the response pack may be used for this purpose. The date of service is taken as 5 days after the issue date shown on the front of the Claim Form N1.

If you think the deadline is today, just get it in asap.

[diddydicky]

I think if you submitted an acknowledgment within 14 days from date of service (issue + 5) you then had another 14 days.

 

Disclaimer: Check your paperwork I don't want you suing me.

 

 

sugar, they eyes have let me down again

 

sorry, both the summons AND the acknowledgement of service do indeed both say defence within 28 days of the date of service

 

 

the summons was issued 18 December and therefore deemed served on 23 which is exactly right and thats the day i acknowledged service so it's 28 days from 23rd which gives me until Monday as i originally thought

 

phew!

[diddydicky]

for future use , are you saying that if i wait until day 14 after service to acknowledge i then get another 14 days (33 in all?)

 

do they not make any allowance for the christmas bank holidays?

[jason_mnm]

DIDDY seems we are on same boat...I found some new stuff in my case..if you guys would kindly check my thread and advise please..

[diddydicky]

tweaked and trimmed

 

 

In the NORTHAMPTON COUNTY COURT Claim number XXXXXX

 

 

Between

 

 

MBNA EUROPE BANK LTD-

 

 

and

 

 

 

xxxxxxx

 

 

Defence

 

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

 

Except where explicitly stated below the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.

 

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

 

3. The claimants' particulars of claims 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) 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, the method the claimant calculated any outstanding sums due, 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*filed and*served

 

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 filed and served*

 

d) A copy of any termination notice served under Consumer Credit Act on the alleged account, has not been filed and served*

 

e/ The claimant has failed to disclose whether the alleged contract is regulated by the consumer credit act 1974

 

f/ The account number mentioned in the particulars of claim refers to an credit card agreement which was regulated by the consumer credit act 1974*

 

g/ The claimant claims interest pursuant to s69 County Courts Act . Such interest may not be claimed on an agreement regulated by the consumer credit act

 

It is averred that the claimants claim is vexatious and is an abuse of the court process.

.

A CPR31.14 Request for a copy of the contract mentioned in the Particulars of Claim was sent to the claimants solicitors Restons and dated 4 January 2010*

 

A Request under CPR18 also dated 4 January 2010 was sent to the claimants solicitors Restons for further particulars which were not mentioned in the Particulars of Claim .

 

The claimants solicitors Restons acknowledged receipt of the above requests in a letter of 7 January 2010, and confirmed that they will not comply with either of these requests.

 

The basis on which they refuse to comply is that their letter of 7/1/2010 retrospectively introduces a company policy that they will not provide any response to unsigned correspondence since 1 January 2010

 

Restons, initially instigated correspondence with me on 2 October 2009 and since that time have responded to several letters sent to them without my signature. They were clearly satisfied as to my identity. .

 

It is averred that Restons are seeking to deliberately frustrate the court process and are acting vexatiously

 

In response to many requests for the claimant to provide a true copy of the executed credit agreement , including before the*claimant*issued a court action the claimant has supplied only a “reconstituted “ agreement. which consists of a one sided signed application form containing no prescribed terms at all. .

 

It is averred that the claimants conduct suggests that he does not have an original executed agreement to produce to the court in support of it’s claim

 

5. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

6. I respectfully request the courts permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim

 

I respectfully request that the court consider striking out the claim under CPR 3.4.2(a)and (b) because it is not fully particularized, does not offer any legal cause of action and has no realistic chances of success.*

 

In the alternative I respectfully request that the court consider striking out the claim under CPR 3.4.2© because, in light of the claimants outright refusal to respond to both CPR 31.14 & CPR 18 requests, the Claimant is unable to substantiate their claim with documentary evidence.

 

If the*honourable court decides not to strike out the claimants claim, the*defendant*respectfully*seeks*directions*from the court that the proceedings be generally stayed for a period of 28 days to allow the claimant to further particularise its claim*and*clarify the terms under which it claims against the defendant in such details as required by CPR part 16. Such directions*to further require*that the relevant documents previously requested by the defendant in his CPR 31.14 and CPR18 requests dated 4 January 2010 are disclosed prior to the defendant being expected to submit a defence.

 

If the claimant fails to comply with the courts directions, then the claim be struck out without further notice.

 

 

 

Statement of Truth

 

 

I xxxxxxxxxx believe the above statement to be true and factual

 

 

 

 

Signed ......................... .....................

 

 

 

Date ……………………………….

[MandM]

for future use , are you saying that if i wait until day 14 after service to acknowledge i then get another 14 days (33 in all?)

 

do they not make any allowance for the christmas bank holidays?

 

You are correct.

 

subbing. Least i can do after all the help/knowledge you've given me in the past months.

[MandM]

Out of interest DD what band is this in.....

[vint1954]

The alternative short defence advised is:

 

1. 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.

 

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

maybe too short?

[diddydicky]

Out of interest DD what band is this in.....

 

just under 5k but i have already warned them that the case is trackless and it is not for them to assume which track it will go on

[diddydicky]

The alternative short defence advised is:

 

1. 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.

 

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

maybe too short?

 

i think so,

 

If you look at the POC's there is NOTHING there to defend- it fails to even mention its a regulated agreement

 

dont forget that this is not JUST an embarrased defence, it is a strike out application and/or application for an order for them to produce documents, after they have REFUSED (not just failed to comply) with CPR31.14 and CPR18 requests so in line with PT's thinking this is not just putting them to strict proof and then sitting on my backside

 

they cant argue that they are failing to respond to the requests due to their beleif that it is small claims since they have already stated their reasons for refusing to respond

 

it is they (IMO) who are now well and truly on the back foot

 

the judge needs to have some evidence to be able to make either of those decisions

[vint1954]

i think so,

 

If you look at the POC's there is NOTHING there to defend- it fails to even mention its a regulated agreement

 

dont forget that this is not JUST an embarrased defence, it is a strike out application and/or application for an order for them to produce documents, after they have REFUSED (not just failed to comply) with CPR31.14 and CPR18 requests so in line with PT's thinking this is not just putting them to strict proof and then sitting on my backside

 

they cant argue that they are failing to respond to the requests due to their beleif that it is small claims since they have already stated their reasons for refusing to respond

 

it is they (IMO) who are now well and truly on the back foot

 

the judge needs to have some evidence to be able to make either of those decisions

Yes, good point. I am preparing a longer ED at the moment. Perhaps you can cast your good eye over it:)

 

Just received a letter stating that after consulting their client, they need another 14 days, to supply the documents requested, which they say are t&C's but I say is the agreement. Coppies so far are illegible ( application form and separate PT's ) then another 14 days for me to respond.

 

Also got a nice forged DN from them.

[diddydicky]

where is the thread

 

messed about with mine and lodged it at 2359- how about that for cutting it fine

 

now about to do a strike out application for a n/wide with a dn claiming full balance

[vint1954]

Hows this one going DD.

[diddydicky]

Hows this one going DD.

 

going to have to be another strike out application by the looks of it

 

their 28 days was up last week- and i already invited them to withdraw without costs- just giving it a bit longer