series3 v MBNA/Optima

citizenB · February 23, 2010

If it covers everything you need to say then that is fine.

Series3 · February 23, 2010

thank you...

just a bit nervous, first timer involved in court.

maybe soon to be a veteran with the calls and letters coming in.

series3

banker_rhymes_with · February 23, 2010

Hello S3!

1. I xxxxxxxxx of xxxxxxxxxxxxx am the Defendant in this action and make the following statement as my initial Defence to the Claim made by xxxxxxxxxxxx

2. Except where otherwise mentioned in this Defence, I neither admit nor deny any allegation made in the Claimant's Particulars of Claim and put the Claimant to strict proof thereof.

3. On 5th November 2009, the Defendant made a formal request including the statutory fee payable (“the request”) to the Claimant under Section 78(1) Consumer Credit Act 1974, which states:

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

(a) the state of the account, and

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

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

The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) determines that the creditor must comply with the request within 12 working days of receipt of the request;

Section 78(6) Consumer Credit Act (1974) determines the consequences of failure to comply with the request, and states:

(6) If the creditor under an agreement fails to comply with subsection (1) -

(a) he is not entitled, while the default continues, to enforce the agreement

(the Offence bit no longer applies).

4. No Agreement was supplied. The Defendant therefore adds that the Claimant failed to fully comply with the request and was therefore in default of its obligations under s78(1) Consumer Credit Act (1974). Once in default, the Claimant thereafter was constrained via Section 78(6) for as long as the default continued.

5. It is brought to the attention of the Court that the Claimant had no right of action until such time as the Section 78(1) default was remedied. Furthermore, demanding early payment of sums not otherwise due, represents enforcement and termination of the Agreement, neither of which are permitted whilst constrained via Section 78(6).

6. However, after receiving a copy of an Application for a Credit Card from the Claimant under CPR 31.14, the Defendant readily admits signing an Application with the Claimant on 28/04/2001. However, the Defendant denies that this simple Application was ever capable of becoming a Regulated Credit Card Agreement, for the simple reason that it was not compliant with Section 61(1)(a) of the Act.

7. Therefore the Defendant puts the Claimant to strict proof of production of a properly executed Regulated Credit Card Agreement compliant with all aspects of the Regulations.

8. The Defendant further adds that the Terms & Conditions breach referred to in the Particulars of Claim bear no relation to the Agreement provided, because there are no clear links between the Agreement and the copy of Terms & Conditions supplied. The Defendant therefore respectfully submits that the Terms & Conditions that were given do not correspond to the Agreement and the Claimant is put to strict proof that the Terms & Conditions are the same Terms & Conditions that needed to be contained within the Agreement itself.

9. It is neither admitted nor denied that the Claimant served upon the Defendant a Default Notice pursuant to Section 87(1) of The Act in the prescribed form and compliant with the provisions of Section 88 of the Act. The Claimant is put to strict proof, including proof of postage together with proof of the Class of postage used when sending the Default Notice.

10. Incorporated within the sum demanded by the Claimant are sums claimed for administration fees, late payment fees and similar charges. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges, if incurred, accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such charges is penal and unenforceable at law, rendering any sums claimed, thus far, highly likely to be grossly inaccurate if the figure given is more than the sum which the giver of the notice is entitled to demand.

11. I respectfully ask the permission of the Court to amend this Defence when the Claimant provides full disclosure of the requested documents.

Statement of Truth

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

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

The bit in purple above is a sneaky quote from...

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998 )

Which should set them up for problems later when you mention that the default sum they demanded in their Default Notice is inaccurate, which will blow s87 for them, especially now that they have terminated the Agreement via a demand for sums not yet due.

I hope this helps.

Cheers,

BRW

Series3 · February 23, 2010

oh yes.that helps .

thank you.

series3

Series3 · February 23, 2010

Now I am a little confused.
I received a letter from mbna this morning.

a notice of sums in arrears..

jan - £70.xx

feb - £25.xx

If they have issued claim, how can they still be adding?

thanks

series3

anyone any ideas about this one?

funny when these £'s are added to my account it comes to the same amount as the amount claimed in the PoC + the costs of Optima..

or will I be charged more?

why would I get another statement (notice of sum in areas)from them?

series3

banker_rhymes_with · February 23, 2010

Hello S3!

anyone any ideas about this one?

My thoughts would mainly be rude, and allude to MBNA and Optima's parentage!

But under CCA 2006, they are obliged to send out Notices to advise people of various things, so it could be one of those maybe? i.e. confirming earlier charges perhaps?

When you can, I would get a Spreadsheet out, together with all of your Statements, and start banging in the numbers. Don't get bogged down with what every expenditure was, just add them by Date and Amount plus a note to say Expenditure.

Then add all the charges by date.

Then add all the payments you made to them by date.

The aim being to get a picture of what, if anything, is actually owed. If you have had the Card for all of this time, then I bet you may well have paid MBNA back more than you ever spent.

If so, that will give you the upper hand on the moral issues straight away.

I suspect that you will find that what they say you now owe, is actually made up of charges and interest.

The charges you will want back...and there's a thought, why not stick in a Counter-Claim for them? You want all of them back, plus s69 8% County Courts Act 1984 Simple Interest on top. Your spreadsheet will show you how much, and once s69 is added per day for each charge, that will add up to a tidy Counter-Claim against them.

Anyway, the Interest itself is a problem for them if they do not have an enforceable Agreement.

It might help you when you walk into Court to know the true figures behind it all, and you may also see how MBNA have manipulated the Debt over the years, via Credit increases, then charges and Interest increases when they decided you were reaching the end of the line as a Debt Slave for them.

They nearly always ramp things up into orbit as people struggle, so the balance is likely to have shot up towards the end. This is all part of how they do things, so you need to see the numbers for yourself to see how it all came to where it did before Court.

It's a job well worth doing, and it may make you more determined to see these grasping fweckers off.

Cheers,

BRW

banker_rhymes_with · February 23, 2010

Hello S3!

anyone any ideas about this one?

My thoughts would mainly be rude, and allude to MBNA and Optima's parentage!

But under CCA 2006, they are obliged to send out Notices to advise people of various things, so it could be one of those maybe? i.e. confirming earlier charges perhaps?

When you can, I would get a Spreadsheet out, together with all of your Statements, and start banging in the numbers. Don't get bogged down with what every expenditure was, just add them by Date and Amount plus a note to say Expenditure.

Then add all the charges by date.

Then add all the payments you made to them by date.

Also, make a note of the date and size of any Interest Rate changes and, likewise, any Credit Limit changes.