How should I respond to this claim

[jane jennefiers]

The debt is an old MBNA Credit Card issued thru Abbey, managed through Cabot.

 

I have repeatedly asked them for a CCA. They have repeatedly said they do not have one nor need one.

 

Now out of the blue - having not heard from them for over a year, they have issued a claim through the court to which I have 28 days to respond.

 

The total is just under 20K.

 

I cannot assess how much is reasonable, because I cannot see what the agreement allowed them to add in penalties because they have not sent me the agreement. But I do not want to simply deny the debt because I truly had and used the card.

 

Could someone tell me the appropriate response. My understanding is that the court cannot enforce it without the CCA anyway.

 

Lastly, I intend absolutely to file for bankruptcy in a few months time. So should that figure in my response?

 

I am not expecting anyone to spell out the response: just guide me to the correct procedure in this case.

 

I think that the right response is that given in this Sticky:

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

BUT: The sticky does not say w hat to send to the court, or what part of the claim form to complete..

 

Many thanks!!!!

Edited February 20, 2010 by jane jennefiers

[lilly white]

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

[lilly white]

have a read.

 

1. It is denied that the matters pleaded in the Particulars of Claim actually disclose any cause of action. In particular:-

 

 

a) It is denied that that the Defendant can have liability to "pay" the Claimant sums of money simply on account of "requests for payment" in relation to a xxxxxxxxxxxx- the only matters pleaded.

 

 

No cause of action known to English Law exists on the basis of such "requests for payment" (whether repeated or not).

 

 

 

b) Neither the Claimant being xxxxxxx which it appears (on the face of the Particulars, although due to their vagueness it is hard to know) to be being alleged were due

 

 

c) In any event, it is denied that the Defendant has or ever has had liability to pay - whomever that may be - any sum whatsoever.

 

2. It is expressly denied the Defendant is liable to pay any money pursuant to contract or otherwise to the Claimant.

 

3. Without prejudice to the above contentions, the Defendant asserts that in particular, given that the original of the liability is said to be a xxxxxxxxx given (which is a person / entity / company not known to the Defendant), it will be the case, taking into account the amount of the liability, that the transaction and the underlying agreement (if any) between xxxxxxxxxxxx and the Claimant would be regulated by the terms of the Consumer Credit Act 1974.

 

4. It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement - that any such agreement as exists does not comply with the Act. It is impossible to plead further in the absence of a pleading by the Claimant as to what the agreement was and what its terms were and the Defendant reserves the right further to plead Particulars of failure to comply in the event that the Claimant amends it Particulars of Claim to allege the agreement

[Andyorch]

Hi Jane

 

I assume that this is a CCBC (Northampton claim)

 

Firstly is it possable you could post up the following details of your case in order to advise further

 

Claimants P.O.C (particulars of Claim)

Copy of the CPR 18 Request (If made)

 

Can I recommend not admitting any liability for the debt, partial or otherwise. If the credit agreement has not been provided by MBNA/Abbey as the result of a CCA request, then you have no way of ascertaining if the contract is legally valid under the CCA 1974. In the absence of this information, you are unwisely, in my opinion, admitting liability for a debt, that hasn't been proven to exist or one that conforms to the requirements of the CCA 1974.

 

You might be thinking that of course a debt exists! However, for the purposes of the law, the existence of the debt is determined by a credit agreement being furnished by your creditors and one that is deemed to be properly executed, which means its layout and content conforms to what the CCA 1974 prescribes.

 

You have 33 days in total to deal with the summons ie 5 deemed served and 14 to AoS (acknowledge which can be done on line.If you defend the whole claim then you have a further 14 days to submit ones defence again on line

 

Have you ever received a Default Notice re the above account?

 

Regards

 

Andy

[Nagasis]

I have repeatedly asked them for a CCA. They have repeatedly said they do not have one nor need one.

 

What reason do they give for not needing one?

[jane jennefiers]

First, thank you to both responds. I appreciate it truly.

 

1. I 'think' I did receive a Default Notice at some point. I cannot recall.

But I have DEFINITELY never received a CCA.

 

2. Yes it is in Northampton (CCBC).

Morgan Solicitors issued claim. Nothing attached just says this:

 

PARTICULARS OF CLAIM:

MBNA EUROPE LTD

Credit Card ref: *****

Notice of assignment having been given to the Defendant in writing, Despite demand for payment the sum of **** remains due. Claimant claims that sum plus interest bla bla.

 

3. I never did get a notice of assignment. I asked for it from Abbey, then from MBNA then from Cabot. At one point I asked them to explain the chain of assignments and relationship between those entities.

 

I had never even heard of Cabot until I stopped hearing from MBNA and heard from Cabot instead. And I have no CCA from MBNA nor anything showing their assignment of a debt to Cabot.

 

I am clear that 'How to get them to disclose their particulars...' is what i should write to the solicitors. But when I read the other link about how to get started, I just do not quite get whether I can just deny the claim and use lilly white's text above as my defense. I am afraid of getting into criminal difficulties by pretending that the debt is totally unknown to me. At the same time, from alegal point of view, I genuinely have no agreement with Cabot and never have done. And I have nothing on paper that shows that an Abbey National Credit Card that I once had was legally assigned to any other partys at all.

[jane jennefiers]

They never gave a reason. They just said in one of their letters that they are not required to provide one and that the debt was clearly mine.

[HP Mum]

Hello

You should check out my thread v Halifax.

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/232368-urgent-help-needed-halifax-new-post.html

 

I was sent a claim in Nov and I followed a set pattern as advised by people on here and by Xmas they had written the debt off.

It may be possible for you to follow the same pattern and prevent banckruptcy.

 

The first question I was asked on here was: did the claim come with the original Agreement and Default Notice attached. If not, you can file a defence electronically denying the claim in its entirety. You can follow my thread to see exactly what could be done.

 

Look forward to hearing your feedback.

x

[jane jennefiers]

Hi HP Mum

 

There is no documents attached to the court claim form at all. Nothing.

[Andyorch]

That is why they have to respond to a CCA request and you must request vis a vis CPR to prove they can collect on the debt.

You will notice the various options on how to respond within the claim pack.I Can only stress that you must defend the whole amount until the Claimant is willing to disclose they are in fact allowed to claim the full amount.Anything less than full defend will give rise to automatic Summary Judgment and CCJ.

 

Andy

[jane jennefiers]

Hi Hp Mum

 

I would like to read thru the steps you describe, but the link you provide takes me to a thread with just a few posts that look like the end of your process. Could you direct me?

[Andyorch]

Documents are not required to be attached to CCBC claims

[HP Mum]

To summarise:

 

- Yes you deny the claim in its entirety on the basis that they did not provide the agreement/default notice - so how can you defend something that they have not proved existed. It is not criminal; it is something they have to prove.

The wording to write on your defence is in my thread, as above

 

- You then, because they have issued a claim against you, can send in 2 template letters to the Claimant.

a) CPR18

b) CPR 31.14

This means they have 14 days to provide you with every single piece of information - by law - regarding your account, conversation, letter etc.

 

- If within 14 days they have not replied with all the above info you can write to the court asking to have the claim thrown out. Or they will abandon the claim - which is what happened in my case. I was sent a letter advising they had taken a biz decision to not pursue the claim. This was the best xmas present I had !! It took 6 weeks from receiving their claim to them deciding to not pursue the debt - which was almost £11k.

 

- I was very nervous and expecting the worst, as you will see in my thread. But people on here held my hand and led me through the process and I got a positive result which completely lifted the weight off my shoulder. I suspect you can do the same. Have faith and courage !!

[HP Mum]

http://www.consumeractiongroup.c o.uk/forum/halifax-bank-bank-scotland/232368-urgent-help-needed-halifax-new-post.html

[jane jennefiers]

So can I simultaneously do 1 and 2.

 

1: Deny the claim and file a defense along the lines of:

It is denied that the matters pleaded in the Particulars of Claim actually disclose any cause of action. In particular it is denied that that the Defendant can have liability to "pay" the Claimant sums of money any sum whatsoever.

 

Without prejudice to the above contentions, the Defendant asserts that in particular, given that the original of the liability is said to be MBNA Europe LTD, it will be the case, taking into account the amount of the liability, that the transaction and the underlying agreement (if any) between MBNA Europe LTD and the Claimant would be regulated by the terms of the Consumer Credit Act 1974.

 

It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement - that any such agreement as exists does not comply with the Act. It is impossible to plead further in the absence of a pleading by the Claimant as to what the agreement was and what its terms were and the Defendant reserves the right further to plead Particulars of failure to comply in the event that the Claimant amends it Particulars of Claim to allege the agreement.

2. Write to Morgans solicitors using the text provided in the 'Getting them to disclose their particulars.

 

If so, what does this bit mean:

"the Defendant reserves the right further to plead Particulars of failure to comply in the event that the Claimant amends it Particulars of Claim to allege the agreement.".

[jane jennefiers]

OK. I will read through all the templates, the HP Mom Thread and everything else slowly over the next 24 hours and write out my actions and defense. Then I will post what I am doing based on the advice from today to make sure I have got it all right before sending it all of.

 

Thank you so much.

[Andyorch]

No you allow time for them to respond hence the 14 days to submit your defence.

 

With regards your last quiery you are requesting permission to alter your defence should the Claimant alter their P.O.C /Disclose.

 

Andy

 

Andy

[jane jennefiers]

Thanks for last 2 points Andy. That makes it easier to deal with. I will send request for CCA on Monday.

[mollybe]

Jane, so sorry to butt in on your thread but Andy is amazing and will definately give you good advice.

 

Andy, when you have a minute please can you take a quick luck at my updated thread, I am panicking a little now.

[lilly white]

1. Then, by Regulation 6 and Schedule 6 the following terms had to be contained in a regulated agreement for running account credit if it was not to be an IEA, and were prescribed for the purposes of s61 (1) (a):
   "A term stating the credit limit or the manner in which it will be determined or that there is no credit limit" (paragraph 3 of Schedule 6);
   "A term stating the rate of any interest on the credit to be provided under the agreement" (paragraph 4 of Schedule 6);
   "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:
   number of repayments;
   amount of repayments;
   frequency and timing of repayments;
   dates of repayments;
   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." (paragraph 5 of Schedule 6).
   I shall refer to these as "the Prescribed Terms".

   
   

2. Accordingly, the document which is signed by the parties (and which forms all or part of the executed agreement) must itself contain the Prescribed Terms and the name and address of the debtor. Other terms may be incorporated by reference but not the Prescribed Terms.
   Copies of the agreement at the time when it is made

   
   

3. The initial duty is to provide a copy of the unexecuted agreement, as set out in s62 as follows:
   "s62
   (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.
   (2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.
   (3) A regulated agreement is not properly executed if the requirements of this section are not observed."

   
   

4. A further duty imposed upon the creditor by s63 is to supply copies of the executed agreement as follows:
   "s63
   (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.
   (2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless -
   (a) subsection (1) applies, or
   (b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.
   (3) In the case of a cancellable agreement, a copy under subsection (2) must be sent by an appropriate method.
   (4) In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.
   (5) A regulated agreement is not properly executed if the requirements of this section are not observed."
   Enforcement of IEAs

   
   

5. The basic rule is stated by s65:
   "s65
   (1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.
   (2) A retaking of goods or land to which a regulated agreement relates is an enforcement of the agreement."

   
   

6. Then sl27(l) provides as follows where an application to enforce is made by the creditor:
   "..the court shall dismiss the application if, but only if, it considers it just to do so having regard to:
   (i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and
   (ii) the powers conferred upon it by sub-section 2 and sections 135 and 136 [power to reduce or discharge the sums owed to compensate for prejudice caused, to suspend or place conditions on enforcement or amend an agreement or security].."

   
   

7. Then, sl27(3) provides, in relation to agreements made before 6 April 2007, as follows:
   "The Court shall not make an enforcement order under s 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under s60(l)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner)."

   
   

8. Accordingly, non-compliance with the relevant regulations is capable of being cured upon application by the court unless the document signed by the debtor did not contain the Prescribed Terms. In such a case the non-compliance cannot be cured and, in the words of Lord Hoffman in Dimond v Lovell [2002] 1 AC 384 at p397F, the agreement is "irredeemably unenforceable".
   

 

THIS IS WHY YOU,,,,,,,,,,, TAKEN FROM CAREY AND OTHERS MANCHECTER TEST CASES

Edited February 20, 2010 by lilly white

[jane jennefiers]

But Andy, the suggested text includes a line that says:....

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim...

 

But you are saying give the 14 days to respond.

[Andyorch]

Thanks for last 2 points Andy. That makes it easier to deal with. I will send request for CCA on Monday.

 

I thought you had already requested it hence their reply of they dont need one have you retained a copy and proof of postage?

 

 

Andy

[Andyorch]

You just need to follow the time line 33 days in total less 5 service 28 days.14 to acknowledge and a further 14 to submit your defence.Dont act to swift this is a mindgame and the Claimant will watch every move you make.

1. AOS

2 CPR request

3 Defence

 

Andy

[HP Mum]

Hi

You can do 3 things !

- file defence - based on Post#20 (or maybe better # 40) on my thread

- send CPR 18 to Claimant

- send CPR 31.14 to Claimant - both these based on post # 23 on my thread. Send Special Delivery. I did mine separately.

 

That is all I did. I thought about writing and sending other letters, but actually only did these 3 things and then waited nervously. I guess they either realised my cca was unenforceable or ran out of time.

 

I would suggest that you maybe ask on here if there is a different approach needed if a solicitor is involved though. Maybe there is a slightly different wording needed.

Good luck.

Edited February 20, 2010 by HP Mum

[Andyorch]

Jane, so sorry to butt in on your thread but Andy is amazing and will definately give you good advice.

 

Andy, when you have a minute please can you take a quick luck at my updated thread, I am panicking a little now.

 

Thankyou Molly for that high praise indeed .Ill be with you shortly

 

 

Regards

 

Andy