CL Finance/cohen Claimform - old Virgin Money Credit Card Debt ****WON****

[pigland]

Hi all,

 

I'm in a similar situation, LIBM..What do you mean by a holding defence? Does anybody have any wording to put on the court form?

 

Kind regards,

 

PL

[Sunshine54]

http://www.consumeractiongroup.co.uk/forum/legal-issues/175074-mbna-let-battle-commence-3.html#post2476355

this is a link to another thread with an Embarrassed Defence/Holding Defence

hope it helps

S

[cymruambyth]

THis is one I have been given to use.

1. I, xxx, of xxxx make this statement as my defence to the claim brought by xxxx.

 

2. The claimant’s particulars of claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR, even allowing for the constraints of the bulk issue system.

 

3. No documents supporting the claims in the particulars have been offered and despite two requests to the claimant for further information via CPR 31.14 dated 2009 and 2009, both sent by recorded delivery, none has been forthcoming and as a result I cannot plead in defence to the claim.

 

4. Without clarification of the claimant’s claim, the defendant is extremely disadvantaged and as the claimant’s claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.

 

5. Further to the above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

Statement of truth

 

I believe that the facts stated in this defence are true.

I am the Defendant.

 

Signed:

 

 

xxxxxx

date

Edited October 11, 2009 by cymruambyth
Fonts, yet again!

[pigland]

To all of you that have helped.....Thank you!

 

Kind regards,

 

PL

[pigland]

I am writing an embarrassed defence and wondered if anybody had any additional info they thought I could put in based on the two different replies I got back from Howard Cohens and CL Finance>

 

I sent a CPR 31.14 request to Howard Cohen(Solicitors) and separately to CL Finance(Claimant for MBNA).

 

The letter back from Howard Cohen;

 

Dear...

Re; CL Finance Ltd - £xxxxx (Quoted the a figure as per the claim which is £13,000ish)

In particular to your recent letter we have received.

The documents you have requested under the CPR Rule 31.14 have been ordered.

This information will be forwarded to you as soon as it has been received at our office.

 

Please note your account has been placed on hold.

 

If you wish to discuss this matter please telephone....

 

 

The letter back from CL Finance;

 

Dear ...

 

Re; Virgin Money Credit card XXXXXXXXX

 

We refer to your recent letter in which you have made a request for information under the Civil procedure Rule 31.14.

 

We are not obliged to provide this information under CPR 31.14. This claim is for less than £5000.00 and therefore the rule is not applicable. We can confirm that any disclosure will be dealt with as directed by the court. The particular of claim should be sufficient for you to reply to the claim form.

We trust this clarifies the matter.

Yours sincerely

 

CL FInance Ltd

 

The claim is for circa £13000.00 which is not less than £5000.00 is it worth mentioning the conflict within the defence if so how?

 

Kind regards

 

PL

 

p.s. Also in order to get myself back on my feet I now live in a caravan to cut my overheads. I have previously given MBNA my PO Box no. They have chosen to ignore this. They have been writing to a property I let out and do not live in. The Claim and the reply letters from Howard Cohen and CL Finance have all been addressed to the let property even though the CPR request I sent to them had the correspondence address being the PO BOX. Any thoughts?

Edited October 13, 2009 by pigland

[shakespeare62]

We are not obliged to provide this information under CPR 31.14. This claim is for less than £5000.00 and therefore the rule is not applicable.

 

That is "ball hooks"

 

You had not delivered your defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and the Claimant should not seek to avoid compliance with their CPR 31 duties by claiming otherwise

 

You could amend the example letter on the link below and send it to the Court. You would need to amend the CPR 18 references in the letter to CPR 31.14. you would also need to explicitly mention that the case has not been allocated to track and therefore the provisions of CPR 27(2) do not apply

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/147913-curiodeb-howard-cohen-case-2.html#post1584038

[shakespeare62]

I think by writing the letter, there could be cost implications to your advantage. Basically Cohen, by refusing to co-operate under CPR, are generating unecessary court costs. You are bringing this to the Courts attention.

 

For reference, any writing CPR 31.14 or CPR 18 requests should first check this good template from SurfaceAgentX20

 

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

[pigland]

MBNA

 

I have been taken to court over an alleged Virgin/MBNA Credit Card account taken out in 2004.

I became ill and was unable to work. I went into alleged arrears and I was harassed constantly by MBNA on the phone and by post.

 

After compiling info and help from CAG I put in this embarrassed defence:

 

Claim no; xxxx

 

1. I xxxxxx am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited/MBNA Europe Bank Limited.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any 1allegation 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: -

 

4. 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 contract referred to, the method the Claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the Claimant's claim.

 

b) A copy of the purported contract 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 attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

 

d) The Claimant did not send a Letter Before Action as required under the Pre-Action Protocols.

 

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 Defendant. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case,to avoid any confusion in case it is suggested that the claim falls under the Consumer Credit Act 2006. It is drawn to the Court’s attention that Schedule 3, Section 11 of the Consumer Credit Act 2006 prevents Section 15 repealing Section 127 (3) of the 1974 Act for Agreements made before Section 15 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.

 

7. For the avoidance of any doubt I include the relevant section of the 2006

Consumer Credit Act, namely SCHEDULE 3, Transitional Provision and Savings:

 

11 The repeal by 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 of that Act, has no effect in relation to improperly-executed Agreements made before the commencement of section 15 of this Act.

 

8. Therefore, the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this Agreement. The Consumer Credit Act 1974 is the Act which regulates the Agreement.

 

The Request for Disclosure

 

9. Further to the case, in an attempt to ascertain what grounds the Claimant is bringing this action I requested on 30 September 09 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the Claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by the Defendant and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the Claimant a legitimate right of action.

 

10. To date the claimant has failed to comply with the Defendant’s request under CPR and I have not received any such documentation requested. A copy of the requests to CL Finance and Howard Cohens is attached to the defence marked 1 A and 1 B. A copy of the replies from CL Finance and Howard Cohen are attached to the defence marked 2 A and 2 B. As a result it has proven difficult to compose this defence without disclosure of the information requested. I hereby request that the court orders the claimant disclose the documents requested in point 4 and how the figures are calculated and any details of charges levied against the account.

11. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to 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 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 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;

4. Dates 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.

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 it is not compliant with section 60(1) Consumer Credit Act 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 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

13. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 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) 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.

14. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 "[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

15. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order.

 

16. Notwithstanding points 12 and 13, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974.

 

17. The claimant is therefore put to strict proof that such a compliant original document exists.

 

18. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

The Need for a Default notice

 

19. 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.

 

20. Notwithstanding point 18, 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. 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)

 

21. 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)

 

Conclusion

 

22. 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 a credit 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 that no agreement has ever existed for there to have been any failure to make said payment.

 

23. I have made attempts to obtain information that would allow me to submit a fully particularised defence, but responses from the claimant advise "they are not obliged to”. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974.

 

24. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's 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.

 

25. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 9 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularized defence and counterclaim and will seek the court’s permission to amend my statement of case accordingly.

 

Statement of Truth

 

I, believe the above statement to be true and factual

 

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

 

Date .…………………….

 

 

 

 

 

After the Allocation Hearing I received;

 

Notice of Allocation to the Small Claims Track

 

1.The claimants to file and serve a copy of all documents listed in the attached list (prepared by the defendant and amended by the court) by xxx on the xxxx 2010

 

Copies of the credit Agreement and any documents referred to within it which complies with the Consumer credit Act 1974 and all subsequent regulations. Which the claimant seeks to rely upon. The original documents to be brought to the hearing.

Default Notice compliant with s87(1) Consumer credit Act 1974 and Consumer Credit (Enforcement, Default and Terminatiio Notices) Regulations 1983 (SI 1983/16561) as amended, together with proof of service

Document, contract or deed of assignment

Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

 

The facts are;

 

In October 2008 I sold my house and informed MBNA I had moved, I gave them my PO Box.

 

January 5th 2009 I sent MBNA an Accounts in Dispute letter

During the numerous harassment phone calls from MBNA I mentioned the account was in dispute.

 

MBNA sent an alleged default notice to my previous address. Default notice Date 06 February 2009 (A Friday) States; Default expires 23 February 2009 is this 14 Days? T

The Default Notice gives a figure to remedy breach..It doesn't show the balance to date..is this relevant?

 

6th March 2009 Lewis Group sent a letter/Notice of Assignment to my previous address. I'm not certain this is a Notice of Assignemnt. It states; We hereby give you notice that MBNA have by an assignment dated 20 February 2009 and made between MBNA and CL Finance assigned to CL Finance absolutely a debt of £XXXX (before end of Default)

 

Note the dates of the Default Notice and the notice of Assignment. Can the debt be assigned before the end of the Default notice date? In addition to the dates should the Notice of Assignment have been sent by Recorded delivery? Has it been assigned correctly from MBNA?

 

There is no arrears information sheet,

 

The Credit Card statements in 2005 show the penalties below, so as these are unfair was the amount to remedy on the Default Notice correct?

 

Cash advance Fee was 2% ie £300.00 =£6.00

Credit Card Cheque Fee £2.00

Late Fee £25.00

Unpaid C/card Cheque Fee £25.00

 

MBNA have sent to the Court a photocopy of a Credit Card Agreement that Lewis group have associated with my alleged account, it is obviously nothing to do with my agreement as it states;

 

Cash transactions; 5.00% (minimum £3.00)

Cheque transactions; 5.00% (minimum £3.00)

£12.00 each time that your payment has not reached your account in cleared funds by the date your payment is due.

£12.00 each time a cheque, direct debit, a credit-card cheque or other item for payment into your account is unpaid.

 

The copy of the Original 2004 Virgin/MBNA agreement is illegible, a microfiche and the term 1F is completely missing.

 

I do have a form that came with the card; headed Credit agreement, it had the card attached. It shows all the terms and conditions, it isn't signed, it says Cancellation Form in a box at the back. Is there any benefit in sending this to Court?

 

I have to put in a defence by this Friday, could somebody please give me some advise and a hand writing it please.

 

Thank you.

 

PL

[gh2008]

Hi pl

 

Could you post up a copy of their POC ans any amended ones, together with copies of the documents they are relying on.

 

We really need that info to be able to see what's what.

 

gh

[citizenB]

looks like you beat me to it gh:p

 

PL, I have merged the two threads you started as they say the same thing. Have kept you in legal as this is now in court.

 

How did it go at the Allocation hearing ?

 

 

The facts are;

 

In October 2008 I sold my house and informed MBNA I had moved, I gave them my PO Box.

 

January 5th 2009 I sent MBNA an Accounts in Dispute letter

During the numerous harassment phone calls from MBNA I mentioned the account was in dispute.

 

MBNA sent an alleged default notice to my previous address. Default notice Date 06 February 2009 (A Friday) States; Default expires 23 February 2009 is this 14 Days?

 

The Default Notice gives a figure to remedy breach..It doesn't show the balance to date..is this relevant?

 

Right, well this is wrong for a start The earliest the DN could have gone in the postal system would have been the Monday, 11th February so they only allowed 10 days if posted 1st class. Did you keep the envelope

 

 

6th March 2009 Lewis Group sent a letter/Notice of Assignment to my previous address. I'm not certain this is a Notice of Assignemnt. It states; We hereby give you notice that MBNA have by an assignment dated 20 February 2009 and made between MBNA and CL Finance assigned to CL Finance absolutely a debt of £XXXX (before end of Default)

 

If they did assign/sell the account on the 20th February then they are in trouble because they did this prior to the remedy/breach date they gave you to comply.

 

Note the dates of the Default Notice and the notice of Assignment. Can the debt be assigned before the end of the Default notice date? In addition to the dates should the Notice of Assignment have been sent by Recorded delivery? Has it been assigned correctly from MBNA?

 

Nope, see above.

 

There is no arrears information sheet,

 

The Credit Card statements in 2005 show the penalties below, so as these are unfair was the amount to remedy on the Default Notice correct?

 

Cash advance Fee was 2% ie £300.00 =£6.00

Credit Card Cheque Fee £2.00

Late Fee £25.00

Unpaid C/card Cheque Fee £25.00

 

MBNA have sent to the Court a photocopy of a Credit Card Agreement that Lewis group have associated with my alleged account, it is obviously nothing to do with my agreement as it states;

 

Cash transactions; 5.00% (minimum £3.00)

Cheque transactions; 5.00% (minimum £3.00)

£12.00 each time that your payment has not reached your account in cleared funds by the date your payment is due.

£12.00 each time a cheque, direct debit, a credit-card cheque or other item for payment into your account is unpaid.

 

The copy of the Original 2004 Virgin/MBNA agreement is illegible, a microfiche and the term 1F is completely missing.

 

I do have a form that came with the card; headed Credit agreement, it had the card attached. It shows all the terms and conditions, it isn't signed, it says Cancellation Form in a box at the back. Is there any benefit in sending this to Court?

 

I have to put in a defence by this Friday, could somebody please give me some advise and a hand writing it please.

 

Thank you.

 

Righto, so you have been given permission to amend and submit a defence ? or witness statement ?

 

Who is actually taking you to court ? If MBNA assigned the debt then the assignee's (CL Finance) name should be the claimant on the POCs.

 

However, as it has obviously been assigned incorrectly then you need to labour this point in your defence in that CL Finance have no right of action.

 

Please answer the above so we can advise correctly.

Edited March 22, 2010 by citizenB

[pigland]

Hi, CB and gh2008,

 

Thanks so much!

 

The Allocation Hearing I strangely enjoyed, thanks to you CB!

 

The Solicitor for the other side asked me if I wanted to settle before I went in as her clients wanted to know..I said no.

 

In court we agreed to follow Small Claims track. The Solicitor smiled when I agreed, I didn't really understand the implications, I now understand that as the alleged debt is more than £12k had I had I not gone Small Claims Track I may have been able to claim compensation for the harassment calls but if I lost I could be responsible for lots of costs. I still don't know if I made the right decision..but hey it's all a learning curve!

 

Since the Allocation Hearing the court has sent this:

 

Notice of Allocation to the Small Claims Track

1.The matter to be allocated to the small claims track with the parties consent

1.The claimants to file and serve a copy of all documents listed in the attached list (prepared by the defendant and amended by the court) by xxx on the xxxx 2010

2.Leave is granted to the Defendant to file and serve an amended defence by xx March 2010

3.In the event of an amended defence being filed the following directions shall apply:-

a) By xx April 2010 both parties shall file and serve their written witness statements together wit copies of any further documentation upon which they intend to rely at trial'

b) the matter be listed for hearing as below.

 

The hearing of the claim will take place at xx on the xx May 2010 at XX County Court and should take no longer than 1 hour. A hearing fee of £300.00 is payable by xx may 2010 by the claimant unless you make an application for fee concession. Failure to pay the fee will result in the hearing being removed from the list.

 

The court must be informed immediately if the case is settled by agreement before the hearing date.

 

The hearing fee will be refunded in full if the court receives notice in writing at least 7 days before the hearing date, that the case settled or discontinued.

 

As per 2) This was also sent and attached by the court;

 

In the xx County Court Claim number; xxxx

 

CL Finance Limited- Claimant

 

and

 

Me- Defendant

 

Copies of the credit Agreement and any documents referred to within it which complies with the Consumer credit Act 1974 and all subsequent regulations. Which the claimant seeks to rely upon. The original documents to be brought to the hearing.

 

Default Notice compliant with s87(1) Consumer credit Act 1974 and Consumer Credit (Enforcement, Default and Terminatiio Notices) Regulations 1983 (SI 1983/16561) as amended, together with proof of service.

 

Document, contract or deed of assignment

 

Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

 

A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

 

CLAIM FORM

Claimant

CL Finance Limited

xxxx

 

Address for sending documents and payments (if different)

Howard Cohen & Co

Defendant

Me

 

Particulars of claim

 

The Claimant's claim for the sum of xxxx being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and MBNA Europe Bank Limited

under reference xxxxxand assigned to the Claimant on the LOVE THIS BIT: 20th February 2009 notice of which has been given to the Defendant.

 

The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant pursuant to Section 87 (1) of the Consumer Credit Act 1974.

 

The claimant claims the sum of xxxx

….........................................................................................

 

 

All the disclosure info they have sent to a property I rent out and deliberately not to my PO Box.

 

Documents disclosed;

 

A letter from Howard Cohen;

 

Dear Me,

 

Re; CL Finance Limitrd-v-Yourself

Claim No; xxx

 

We refer to the above matter and in particular the order made on xx 2010

Please find enclosed by way of service upon you a copy of of the original credit agreement, all available statements, Default notice and Notice of Assignment.

 

We can confirm that the same has been filed with the court.

 

A Virgin Credit Card/MBNA agreement from 2004, it is microfiched and illegible;

It is headed Credit Agreement regulated by the Consumer Credit Act 1974

The word 'Card' is missing

If you really look at it you can see charges at £25.00

There are; No links between front and back.

Terms 1f are missing ( I have forgotten the link to the CAG agreement Library, as an exact replica is on there)

 

Attachment to the Microfiched Agreement is a four page photocopy document headed; This is a copy of your agreement for you to keep. It has my name, old address and the alleged credit card account number .

 

These is obviously new and doesn't relate to charges on my early statements or the Microfiched agreement.

 

A default Notice;

On DN it mentions paragraph 8 of agreement it only goes up to 3b!

Incidentally and I don't know if it's important the original DN they sent me had the date of remedy as 23/02/2009. The one they've sent to court has 23 February 2009.

 

A Notice of Assignment from Lewis Debt Recovery dated 6 March 2009 saying they act for CL Finance and saying assignment date 20th February 2009.

 

Statements

They have sent only a few statements, date range; xx to xx

Jan 09 Statement;

Available to spend £0

Current balance £

Payment due date xx

Minimum payment £

 

The later statements they have sent show £12.00 charges. The statements that I have on file go back to the beginning and show the £25.00 charges and other fees that are not the same as their attachment to the Microfiched agreement. The Microfiched copy you can just see charges at £25.00. They have conveniently forgotten to include these even though the court requested;

 

'A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case'

 

If you need anything else let me know, thank you for your help!

 

PL

Edited March 26, 2010 by pigland

[gh2008]

I don't think there's any mileage in it being sold on before the expiry of the DN. A creditor can sell an account at any time

 

In court we agreed to follow Small Claims track. The Solicitor smiled when I agreed, I didn't really understand the implications, I now understand that as the alleged debt is more than £12k had I had I not gone Small Claims Track I may have been able to claim compensation for the harassment calls but if I lost I could be responsible for lots of costs. I still don't know if I made the right decision..but hey it's all a learning curve!

 

Nope, good decision. They have a very weak (well IMHO not even weak) case so they are happy that they are not exposed to costs. In teh same vein you are protected as well.

 

2.Leave is granted to the Defendant to file and serve an amended defence by xx March 2010 - Which I presume is Friday

3.In the event of an amended defence being filed the following directions shall apply:-

a) By xx April 2010 both parties shall file and serve their written witness statements together wit copies of any further documentation upon which they intend to rely at trial'

b) the matter be listed for hearing as below.

 

 

As per 2) This was also sent and attached by the court;

 

In the xx County Court Claim number; xxxx

 

CL Finance Limited- Claimant

 

and

 

Me- Defendant

 

Copies of the credit Agreement and any documents referred to within it which complies with the Consumer credit Act 1974 and all subsequent regulations. Which the claimant seeks to rely upon. The original documents to be brought to the hearing.

 

Default Notice compliant with s87(1) Consumer credit Act 1974 and Consumer Credit (Enforcement, Default and Terminatiio Notices) Regulations 1983 (SI 1983/16561) as amended, together with proof of service.

 

Document, contract or deed of assignment

Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

 

A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

 

 

---

Great Order!!

---

 

CLAIM FORM

Claimant

CL Finance Limited

 

Particulars of claim

 

The Claimant's claim for the sum of xxxx being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and MBNA Europe Bank Limited

under reference xxxxxand assigned to the Claimant on the LOVE THIS BIT: 20th February 2009 notice of which has been given to the Defendant.

 

The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendant pursuant to Section 87 (1) of the Consumer Credit Act 1974.

 

The claimant claims the sum of xxxx

….........................................................................................

 

 

All the disclosure info they have sent to a property I rent out and deliberately not to my PO Box.

 

Documents disclosed;

 

A letter from Howard Cohen;

 

Dear Me,

 

Re; CL Finance Limitrd-v-Yourself

Claim No; xxx

 

We refer to the above matter and in particular the order made on xx 2010

Please find enclosed by way of service upon you a copy of of the original credit agreement, all available statements, Default notice and Notice of Assignment.

 

We can confirm that the same has been filed with the court.

 

A Virgin Credit Card/MBNA agreement from 2004, it is microfiched and illegible;

It is headed Credit Agreement regulated by the Consumer Credit Act 1974

The word 'Card' is missing

If you really look at it you can see charges at £25.00

There are; No links between front and back.

Terms 1f are missing ( I have forgotten the link to the CAG agreement Library, as an exact replica is on there)

 

Attachment to the Microfiched Agreement is a four page photocopy document headed; This is a copy of your agreement for you to keep. It has my name, old address and the alleged credit card account number .

 

These is obviously new and doesn't relate to charges on my early statements or the Microfiched agreement.

 

A default Notice;

On DN it mentions paragraph 8 of agreement it only goes up to 3b!

Incidentally and I don't know if it's important the original DN they sent me had the date of remedy as 23/02/2009. The one they've sent to court has 23 February 2009.

 

A Notice of Assignment from Lewis Debt Recovery dated 6 March 2009 saying they act for CL Finance and saying assignment date 20th February 2009.

 

Statements

They have sent only a few statements, date range; 11 Feb 08 to 13 Jan 09

Jan 09 Statement;

Available to spend £0

Current balance £12,894.25

Payment due date 11 Feb 09

Minimum payment £1927.90

 

The later statements they have sent show £12.00 charges. The statements that I have on file go back to the beginning and show the £25.00 charges and other fees that are not the same as their attachment to the Microfiched agreement. The Microfiched copy you can just see charges at £25.00. They have conveniently forgotten to include these even though the court requested;

 

'A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case'

 

If you need anything else let me know, thank you for your help!

 

PL

 

Ok, so for a start they have not complied with the Order from the Court for the reason in bold

 

The agreement must be legible.

 

I'm not actually sure that you should submit a defence. Without the disclosure of the documents as ordered - especially a legible agreement then how can you ??

[gh2008]

looks like you beat me to it gh:p

 

So, who's stalking who here

[citizenB]

LOL, I am pleased you enjoyed yourself, PL It did at least give you some idea of what will happen at the real thing.

 

Yep, I bet the other side did smile at your acceptance of small claims. IMHO, it could mean they dont feel as confident as they should.. "could mean".. not absolute.

 

You would be able to claim any wasted costs on winning.

 

I am a little busy catching up after having two days away from the forums.. so will look in on you tomorrow and hopefully offer some advice.

 

Meanwhile, I suggest you read up on the "dodgy default notice defence" below.. I will look for some information in respect of Assignments for you as well. I rather suspect these will be your strongest arguments.

 

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also 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. 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).

 

6. The 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

 

[pigland]

CB & Gh

 

Thank you for your replies:

 

I agree, the defence is weak.

 

CB;

 

The balance does seem inaccurate!

 

Didn't keep envelope for posting DN.

 

Ref Default notice CB answered;

'If they did assign/sell the account on the 20th February then they are in trouble because they did this prior to the remedy/breach date they gave you to comply'

 

Note the dates of the Default Notice and the notice of Assignment. Can the debt be assigned before the end of the Default notice date? In addition to the dates should the Notice of Assignment have been sent by Recorded delivery? Has it been assigned correctly from MBNA?

 

'Nope, see above'

 

Gh answered;

 

'I don't think there's any mileage in it being sold on before the expiry of the DN. A creditor can sell an account at any time'.

 

I'm not sure where to go on this?

 

Answering Gh's post;

 

Yep have to get defence in by this Friday!

 

'Great order' Thank you! I submitted this at the allocation questionaire stage.

I can't take all of the credit because someone suggested it, can't for the life of me think who suggested it..Can you CB?

[gh2008]

PL

 

You could give the Court a ring and explain that they haven't fully complied with the Order of ##/## and because of that you are not able to submit a full defence as you need disclosure of the documents ordered.

 

Ask them what to do.

 

They may suggest writing to the Court Manager explaining and asking for the Court to issue an 'unless' Order for them to comply

They may say you have to make an application £35 (without hearing) to ask teh Court to make an unless order.

 

Whatever, you shouldn't have to submit a defence without the documents that you need in order to submit a defence IYSWIM

[pigland]

Gh2008,

 

Thanks for the reply, I'll call them tomorrow. I gave your scales a little nudge.

Kind regards

 

PL

[citizenB]

Have you still not received the documents you need, PL ?

 

The Notice of Assignment should have been sent to you via recorded delivery. If you have admitted receiving this, then I am not sure how it can be used in your defence unless there is some discrepancy in the notice and from what gh says above then the assignment prior to the remedy date on the DN might not be an issue.

 

I do agree with gh that unless you have the documents you require in order to submit a defence.. then you cant really prepare one.

 

If the way they have presented the date on the original and the copy defence are different.. then all that proves is that the 2nd one is a recreation.

 

Be back later today to see if gh has any further ideas.

[gh2008]

pl, have you posted the documents received from them anywhere?

 

get back on here with what the Court say

 

I would hope that you can submit an application rather than a defence. A N244 asking for an unless Order with costs (as they did not comply with the last order)

 

The reason you need the documents The DOA - you need proof that the claimant are truly entitled to claim against you as I am sure there has been so much confusion surrounding this account with various DCAs and the OC and now the claimant all asking for payment.

Did you receive a NOA from the OC? was it genuine or a letter from the claimant purporting to be from the OC?

 

They NEED the original agreement as they must prove it was compliant with s61, if not they should be seeking an order under s65 and if the prescribed terms aren't there they can't because of s127

 

They NEED the DN to prove it was compliant with s88 as otherwise they are not entitled via s87 to claim for 'sums not yet due' as they are doing.

 

Should be interesting (if it gets that far) to see their WS in relation to the DN as they (the claimant) didn't send it....

 

Re the address confusion - which address did you fill in on teh Court forms for service?

If it was teh PO Box and they are not sending them there you need to write to them and tell them also cc the letter to the court.

 

gh

[pigland]

Hi GH,

 

I've not posted the documents anywhere.

 

They are aware my address is my PO Box, Address for service was PO Box.

 

 

 

'if not they should be seeking an order under s65' Could you explain please?

 

Should be interesting (if it gets that far) to see their WS in relation to the DN as they (the claimant) didn't send it....

 

Sorry to be naive: what does OC and WS mean?

 

Just been to the court, clerk said send in a letter to judge, she said there would be no charge and mention not receiving anything. I must assume that as they've sent a 49 page fax to the court this is not going to contain monthly statements going back to 2004! Would the court have any more or less info?

 

Do I need to fill a N244 to get an 'unless order or do you put in a letter? Either way how would I write an unless order?

 

Thanks

 

PL

Edited March 25, 2010 by pigland

[pigland]

Hi Gh and CB

 

The NOA is not from MBNA or from CL Finance it's from Lewis Debt Recovery.

 

The Notice of Assignment should have been sent to you via recorded delivery. If you have admitted receiving this, then I am not sure how it can be used in your defence unless there is some discrepancy in the notice'.

 

I know I have never signed for a NOA, I don't know what a NOA normally looks like but I'm not convinced by this;

 

It's from Lewis Debt recovery;

 

Dear Me,

We act for CL Finance Limited. We are instructed to inform you that your debt with MBNA has been assigned to our client. This means that ownership of your debt has changed to CL Finance Limited. Formal notice of assignment is set out in the box below.

 

Your debt of £XX XX must be paid to us immediately.

 

Please note that we are authorised to take further action against you to recover this debt if not paid by xx xx 2009.

 

Please ensure that you quote reference number...when remitting payment. If you wish to discuss this matter please telephone xxxx

 

In box:

We hereby give you notice that MBNA xx Chester, have by Assignment dated 20th February 2009 amd made between MBNA and CL Finance limited absolutely a debt in the sum of £xx xx due and owing by you to them for the balance due under account number xx and you are required to pay the same to the benefit of CL Finance limited accordingly.

 

The amount is exactly £5.00 less than the amount claimed on the POA, I don't know if this has any significance?

[gh2008]

what did the Court say?

 

OC original Creditor

WS Witness Statement

 

the s numbers refer to sections in the Consumer Credit Act - rather than me tell you it's best to read it yourself and then ask questions about the bits you don't 'get'

 

read the ones mentioned before as a start.

 

The NOA has to come from the OC IIRC - so that's no good for them

 

The Court has ordered the disclosure of the Deed Of Assignment and that is the legal doc that proves they own the debt. Without that they have not proved they own it. Nor have they proved that they have informed you in the proper manner if they do own it.

 

It will be a difficult defence to write if you don't even know if they own it .....

[gh2008]

sorry - just read the Court bit.

 

Ok, so letter into the Judge TODAY !!

 

It needs to explain the parts of the Order that they have not complied with and why you cannot submit a defence without them

 

I have PMd DiddyDicky who writes ace letters to pop in and have a look.

[pigland]

Thank you,

 

On it now!

[pigland]

HI Gh,

 

Dear Sirs

 

Re; CL Finance Limited v Me

Case No; xx xx

 

Upon hearing representative for the claimant and defendant in person

 

Deputy District Judge xxxxx orders that

 

1.The claimants to file and serve a copy of all documents listed in the attached list (prepared by the defendant and amended by the court) by 4pm on the 10 March 2010

 

Copies of the credit Agreement and any documents referred to within it which complies with the Consumer credit Act 1974 and all subsequent regulations. Which the claimant seeks to rely upon. The original documents to be brought to the hearing.

Default Notice compliant with s87(1) Consumer credit Act 1974 and Consumer Credit (Enforcement, Default and Terminatiio Notices) Regulations 1983 (SI 1983/16561) as amended, together with proof of service

Document, contract or deed of assignment

Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

 

To date; I have not received all the documents and feel I am deliberately being put at a disadvantage. I have rung and then travelled to the Court and have been informed that Howard Cohen have faxed a 49 Page document to the court.

 

I do not believe that the Claimant has complied with the order and will not be able to, I therefore request an Unless Order be served, if the Claimant fails to comply with this order I request without further order the claim be struck out.

 

What do you think?

Have I missed anything?

Do I need to fill out a form as well?

Do I mention my costs?

 

Kind regards,

 

PL

Edited March 25, 2010 by pigland