MBNA ordinary cause citation

[flapjack21]

Hello all, I have been reading through the forum but am still very confused (terrified beyond all reasonable measure) and require some help defending a courtcase brought by MBNA. Here is the order of events so far

 

circa dec 2005 my partner filled in what he thought was a questionaire in a local shop and shortly thereafter he received a platinum card. the card has been upto it it's limit twice before and cleared then in april last year tragedy struck and we were no longer able to pay. I contacted mbna and put in place a short term agreement to pay reduced payments and during this time no interest was to be added to the account. Lo and behold three months later and £1200 of interest had been added whilst we had adhered to the agreement. Following this MBNa tried for an other agreement we refused unless they would supply the terms in writing and remove the interest added to the account needless to say they refused.

Around oct 16th 2009 I sent of a CCA letter and heard nothing back then the call started again and I told them I had sent this which they have denied receiving.

On March 17th 2010 an initial writ was received.

April 6th (removed head from sand) filed a notion to defend.

 

The initial writ seems to be an ordinary cause the details as follows:

Pursuers crave the court to grant the decree against he defender for payment to the pursuers of the sum of xxxxxxxxxx with expenses.

 

Condescendence

1. The parties are designated......blahblah blah standard boiler plate.

2. The defender maintains an account with the pursuers. The account number being xxxxxxxxxxxxxxxxxxxx. the pursuers granted the defender credit on the account subject to the defender maintaining an agreed repayment plan. The debit balance on this account is the sum of xxxxxxxxx. Copy certified account statements will be produced.

3. The defender has not maintained the agreed repayments. There remains a balance outstandng due and resting owing to the pursuers by the defender as at the date of action of xxxxxxx which is the sum sued for.

 

I have highlighted in red the part I think may be unusual, it seems to suggest that no CCA will be supplied! Any help gratefully received.

Thanks Flapjack

[flapjack21]

Please if someone could help that would be great. I have sent off the letter to their sols asking for info and renewed my CCA request by rec del this time to MBNA. Do I need to also do SAR because I am struggling to find the money. Any help gratefully received.

[chris2472]

Hi flapjack

Some one will be able to advise you soon. I think things have slowed down for the Easter break. One thing this site has taught me is that despite all the scary threats there is not much these people can do to you that really matters but there is probably a whole bunch of stuff you can do to them that they won't like at all. Try not to worry, one of the site team will be here to weave their magic just as soon as they can :grin:

[flapjack21]

Thanks Chris, I forgot all about the easter bank holidays and school holidays. Thanks for the reassurance it really helped make me feel a bit better.

[IdaInFife]

Hiya,

 

Sorry for the delay in getting a response.

 

Here is some info to start with copied from Monty

 

The Ordinary Cause process is outlined in this link:

 

Ordinary Cause Rules

 

I would also get hold of a copy of Charles Hennessy's book entitled "Civil Procedure and Practice" (costs about £40) which will give a good introduction to the process and help with the terminology and provide a basis for your defence and pleas in law.

 

You have to lodge Form O7 with 21 days as it states in the writ, the court will then issue you and the Pursuer Form G5 which sets out dates for submission of your defence and a period of adjustments to both their writ and your defence and pleas-in-law. The purpose is to allow the Sheriff to focus on the key issues of the case, during the adjustments process it will be between just the Defender and the Pursuer, following which the final version will form "the Record" which is what the Sheriff will make a decision on at the "Options Hearing". Don't worry too much about what these mean at the moment.

 

The key point is that the process is long and drawn out, purposefully to enable settlement through the adjustments process. The disclosure of documents during an Ordinary Cause process is through serving a Motion which can be done through a solicitor or Bailiff or at the Bar (at the hearing). They will also need to provide you with an Inventory of Productions when they submit the final Record that will contain any documents that they seek to rely on in court, you will have to do the same. My case filled three lever arch files since the Sheriff wanted each case printed out in full and all acts/SI's etc. So be prepared for a lot of work.

 

What I would suggest is that you:

 

1. File Form O7, post up what you get back in respect of Form G5.

2. Serve a Subject Access Request on the creditor/Pursuer as Ida suggests. You should also request your agreement and use a template letter from CAG. Send both with the correct payments and via Guaranteed next day delivery, do it quick since the post office is about to strike.

 

Then post up what you get back.

 

One note of caution:- the costs with an ordinary cause action can be substantial, the process can go through legal debate, proof (leading of evidence) or proof before action (essentially the same). However many never get this far, but you need to be sure about your defence and legal arguments.

 

You should think about your defence? What angles do you have? the agreement? the insurance? the default notice?

 

here is alos some threads for you to read through:

Clydesdale/Yuill and Kyle ordinary cause credit card debt - Scotland Financial Legal Issues - Consumer Action Group

 

rbs Ordinary Cause citation £15k unsecured loan and 1.5k overdraft - Glasgow **WON+COSTS** - Scotland Financial Legal Issues - Consumer Action Group

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/204411-funding-corporation-scotland-3.html

[flapjack21]

Hi Ida, thank you for the advice, the main defence I think is that they have no signed agreement or possibly passing on a credit token illegaly as my partner only answered some questions in a local chain store. Actually when the card came through I remember being livid but he swore and continues to do so that he never applied for a credit card in store. This was in 2005 so I cant remember if he sent back an agreement. However on the writ they say they will provide 2 years of cerified copy statement as proof of the ongoing agreement (coincidentally that also coincides with us cancelling the ppi).

Also the Default Notice we have not received one although one was threatened when we asked for a copy of the agreement back in october.

I have already filed the 07 form on tuesday and on wednesday re-sent the CCA request and also a letter to the lawyers asking for all information pertinent to the case (as outlined in leedoe's thread).

I dont wish to question your advice but regarding the book is it applicable in Scotland. I thought there was no CPR thing please forgive me If I have got this wrong. I will complete the SAR on saturday as I cant get out until then.

Regarding the hard work I knew it was going to be an uphill slog but we have no choice but to defend we really can't afford to pay and we have tried to be fair and do everything right with MBNA but they keep pulling the rug out from under us at every turn, breaking agreements with us and telling barefaced lies plus you can never get anything in writing.

I haven't received the schedule thing yet should I have received it when I handed in the T07 form to court?

Again thank you for your help and I will have a good read through the links you have provided.

Take Care Flapjack 21

[flapjack21]

Ok, So I have the schedule it arrived on Saturday, MBNA's solicitors also contacted us by mail to say they would have the documents requested forwarded to us and also offer us to settle early at a reduced amount. Believe me If I could settle early I would but that is not an option for us do we need to acknowledge the offer of early settlement?

I am currently working on the plea's we only got 14 days to hand them in from wednesday 8th (I thought it was 21). But as they haven't supplied us with any of the docs requested yet I am a bit lost is there any way to force them to do so. If any one could spare the time to help I would really appreciate it. Thanks Flapjack

[flapjack21]

Oh and the above link to the ordinary clause rules has changed all you get there is a list of template documents to be used in the clause.

Ordinary Cause Rules

This link will take you to a very lengthy list of the rules of the clause. Just incase anyone is following this thread looking for answers or advice.

[mystery1]

Get the book. It is Scottish through and through and will help you. Cost should be able to be reclaimed as an expense if you win.

 

In court your partner will have to act if the card is his. You will be able to stand with him but not address the court "Mackenzie friend" unless you are allowed to be his "lay representative" but i was refused permission to be a lay representative in my mums case. This assumes that you do not use solicitors which is probably better as they don't seem to know too much about these kind of cases anyway.

 

 

You need to get a copy of the agreement to be able to challenge it and force the court to say they can't enforce it.

 

You need to get a copy of the default notice and find out when/how it was sent to again challenge the validity of the default notice.

 

In the mean time your basic defence is that they have provided no proof of a legally enforceable agreement. Place them to strict proof of a valid enforceable agreement.

 

If the solicitors are anything like those representing the Clydesdale (Yuill & Kyle) then you will find that all correspondence is aimed to arrive on the last day so you don't have time to reply. In these instances goto court and ask for a "motion at the bar" for an extension. If you make a written motion it's £40 but a motion at the bar is free.

 

 

It's nerve racking stuff but if you are prepared you can win quite easily with a duff agreement.

 

 

Keep a running tally of all costs for expenses as when you win you'll need to know what you claim back from them.

 

M1

 

PS if you are near the Mitchell library in Galsgow i believe they have an excellent law section.

[seriously fed up]

Hi Flapjack, Ida asked me to drop by and have a look at this.

First thing I would suggest is having a look at this thread (if you havent found it already) http://www.consumeractiongroup.co.uk/forum/mbna-successes/238861-mbna-court-action.html. There are a number of strong points in it for you

 

1. its in Scotland
   
2. it concerns MBNA
   
3. most of all it was won by the defender, and tbh, I would have reckoned you have a better chance of being successful than Moragh. For instance if they are suggesting "substantial discount" at this stage, that could reflect their own poor view of their chances, as they offered to this to Moragh, but only at the last minute.
   

The advice to get hold of a copy of Hennessy is good as it takes you through court procedure (specifically re Scotland btw), so it gives you some idea of what its like. It will also give you a better grasp of your rights in front of the court. Mystery1 is sadly right - they often (though not invariably) submit documents late, so you get less time to think through the implications so can respond less effectively - if they pull that one, ask for a adjounrnment. Also, if they go off into legal jargon - particularly during a hearing - pull them up - you are a litigant in person and proceedings need to be understandable to you as well to them. But that's an issue for late, IF this gets to court. I am not altogether convinced it will, as they sometimes put out court claims hoping the other side will just cave in to prevent it getting there. Once they know you not only have a good, well thought out case, but one that might win, they may well run up the white flag. The fact they are offering a substantial discount, as I said, is a good sign imo.

So we need to get you a good case, and to do that we need to see the documents that they are going to rely on. When you get these, scan them and put them up here. They need to have an agreement, signed by your partner and including the terms prescribed by the Consumer Credit Act - rate of interest + how the credit limit will be determined and notified (or what it will be) + repayment arrangements. From your description of the signing up process, I dont think there is a hope in hell they will be able to come up with this. However, that's not to say they wont come up with something. Have a look at the thread referenced above. In that case they photocopied random T&Cs on the back of a sig form. In some ways its a pity it didnt get to court as there is a clear issue of fraud there. That's not to say they wont try. Mystery1 is right - you need to put them to strict proof here - really screw them down, as if they dont have a proper signed agreement (see the requirements in s61) they need to go to Court for an order (s 65), but if the prescribed terms are missing even a court cant issue an order (S127 (3))

A copy of the Consumer Credit Act 1974 would be handy - you can download this from the net - do a google search. Also the agreement regs (1983/1553 - a google on that should work). If you can get in to a Law Library somewhere (eg the Mitchell Library) see if you can get hold of a copy of Goodes' Consumer Credit Law. Its about three volumes long and its not only not a racy read but a difficult one. However its a well respected source, even by Sheriffs.

Key thing in all this are the documents they will rely on in court. Best thing to do is to familiarise yourself with the surrounding law so that when they arrive you will know what to look for.

Hope that helps

[flapjack21]

Thank you both so much, so in the first incidence I need to reply to the plea's that they have not provided proof of a legally enforceable agreement got it. I will just go and order the book I will write out the preliminary plea's on friday to give them a chance to get the agreement to me (which I do not believe they will). Once I have done the plea's I'll pop up a draft. Thanks for the help and the goodwill messages cheered me up no end.

[seriously fed up]

The thread that Ida recommended

 

(http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/176298-need-help-court-defence.html)

 

has some excellent posts from Monty - see 12-17 and 23. Number 25 is important as well as it shows how to make a formal request for the kind of information that you are looking for them to fess up to. It might be an idea for you to work through this thread reasonably closely as while the details differ (eg it involves RBS and a loan) quite a lot of the procedure and claims are the same, so they are a good illustration (ie you would need to adapt), setting out the format and the phraseology. You might also look at the thread I suggested re Moragh

 

Have a look, prepare your response and put it up for us to have a look. I reckon that the more you pressure them on putting up the documents they are going to rely on, the less likely it is that this will get to court.

[Monty2007]

Hi flapjack

 

I would suggest making a counter claim for all the charges when you submit your defence. You need to complete Form O7 (notice of intention to defend) and pay a fee (£80 or so). From what you state in relation to the flyer type application this should be winnable.

 

Once you have a submitted form O7 you then get a list of dates and actions from the Sheriff court which you need to post up. We have all been through this so there is now a lot of expertise with Ordinary cause cases so don't worry too much. Part of their game is to make you worry so don't!

 

SFU/Ida/me and others will help you as much as possible but it will be you defending so do get hold of Hennessey's book and read the OC cases on CAG which will give you some background. You have a lot of time before you get to the options stage and the process is easier in Scotland.

[flapjack21]

Hi All, A little later than promised as I am laid up at the moment and having difficulty concentrating anyway here is the draft of my partners defence which is to be submitted midweek. As expected no agreement has turned up which is making it somewhat difficult to formulate an adequate defence bu on the plus side I did find a document which looks like the default notice. Anyway here is the draft so if any of you kind people have suggestions I will be happy to hear them.

Template for Cag.doc

 

Has anyone had a chance to look at this, it is getting handed in tomorrow and I am a bit nervous I fouled it up. Like I said in my previous thread I am laid up with a severe ear infection and nothing seems to be making sense to me at the moment.

[seriously fed up]

Hi sorry - I did notice this at the weekend and had meant to get back to you, but other distractions ...... Sorry

The main problem that I can see isnt with the argument in the defence (I'll come to that) but with the way in which you have worded it. Rather than me going through your defence line by line, can I refer you to my M&S thread, mainly on the basis that its one I know about (and also that it was won) rather than its particularly good. You can find this at http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/199747-help-court-papers-m-2.html, and in particular you want to have a look at post 31 (Monty's suggested revisions of my first draft). There is also very good guidance at post 29 from Monty on "how to do it". But some specifics

1. you dont need to reproduce their assertions in your defence - just respond to them in order - so for instance in respect of 1 you could just say "The averments regarding the defender are admitted. The existence of jurisdiction is admitted. Quoad ultra not known and not admitted."
   
2. in the second answer you dont need "it is denied!" - "it is explained that ..." should suffice. In the same section I think your second point "Furthermore any such agreement would be regulate" could be more clearly put - I think what you mean is that you are insisting that they produce the original original - not a photocopy or a microfiche but the original original. Could be clearer
   
3. re the third condescendence why not just say that what they have sent as a default notice is in breach of s87 and 88. By all means say this, but this is the thing to focus on - where they have been remiss and the consequences for them of this. It rather reads to me you were more anxious to get the statute right. Lastly, finish up with "The DEFENDER will present the default notice received from the PURSUERS within his first Inventory of Productions.
   
4. re the last condescendence try "The PURSUERS, by virtue of not having served a valid Default Notice, are not entitled under the Consumer Credit Act 1974 Section (88) (1) to demand payment of the balance and the DEFENDER craves that the application be dismissed."
   
5. The pleas in law look fine to me.
   
   

So basically its a matter of tidying a few things up and amending a few phrases. Btw thought it was Thursday this was due in (being a last minute sort of person this is important to me).

You are quite right to press them on the agreement as they are very weak on this. Keep in touch with how it goes.

[flapjack21]

Thank you so much for your help I will check out your thread and ammend as suggested. You are quite right it is thursday it is due in but I will be having a small surgery (If they do it with the ear infection, I dont think they will but better safe than sorry) so it must go in tomorrow as Mr Flapjack will be accompanying me. Thanks Again

 

 

I have since made the amendments you suggested and read through your thread (Congratulations on winning btw) on conscedence 2. I have removed the part about requesting a copy under S77-79 which I feel may have confused the issue as what I wanted was to bring attention to the fact that the agreement was governed by CCA 1974 as they had made no mention of this instead wish to provide 2 yrs copy certified statements.

 

Again thanks very much for your precious time and advice. It is people like you and other caggers that ensures me there is hope for the human race yet.

Flapjack 21

[seriously fed up]

that's ok and I hope in the long run it does help.

Just a couple of observations

 

1. by putting up the statements they are probably going to go down the road of "lending took place, they took the money and should pay it back". If this gets to court you are going to have to be very strong to keep it away from this and on the issue of whether they have the documents that would allow the court to make an enforcement order. You really need to screw them down on strict proof. That is quite a different issue
   
2. thanks for the congratulations - but if you have a good read a lot of people helped me with that - Monty, Welshmam, Beetle etc. That's how it works - what goes around comes around.
   

Keep us in touch with how it goes. I do think you have a good case.

[flapjack21]

Supposing they do even then would the court not need the signed agreement before they could enforce it under S65 or is that an entirely seperate issue?

I hope to be in your position one day so I can help someone in my partners position, as you say what goes around comes around.

I hope I implied my thanks to all the caggers who have helped in any case in the past which are available to see and learn from I think all the posts I have read have helped in some way.

Flapjack 21

[seriously fed up]

Oh absolutely - which is why you need to press them on producing the original document and not some made up piece of nonsense. As I said, they look like they are going down the "moral" "lending took place, now pay back what we say you owe" route. You need to go down the route of s61 1a requires a signed document containing the prescribed terms. If they cant then the account can be enforced only by a court (s65), but s127 (3) prevents a court from doing this as they are in breach of s61 1a. Your case isnt did learning take place, but do you (MBNA) have the documents to allow this court to make an enforcement order.

Lets see what they come up with.

btw - yes you did and i hope you will.

[flapjack21]

Had the options hearing today, their lawyers asked for an extension to the adjustments of three weeks (My partner did not object though I thought he should have). I think this is a good sign we have got them on the run. The default notice they provided in their inventory of products was a total shambles basically no more that a statement with a notice of the default sums. Their lawyer/solicitor looked less than happy that we had turned up. The Agreement they provided is not enforceable due to a lack of their signature under 61 and plus there are issues with the prescribed form of the cancellation notice under 64. I am taking this a positive. Anyone else have any thoughts?

[seriously fed up]

what were the grounds they put up for the extension? I suspect if you had objected it wouldnt have made much difference - they would still have got it - but it might have drawn out more of their reasoning, and let them see that you arent going to be pushed around (dont imagine btw that if you ask for an extensions next time that becasue you didnt object this time that they wont then).

If their DN is wrong and they have effectively terminated by taking an action demanding the full sum then you want to have a look at cases involving Unlawful Rescission of Contract - try here http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-642.html at post 12838 (dont start at the beginning whatever you do ) - post by BRWW- I wont spoil your enjoyment of it by telling you what is there. Best to read it by yourself.

The document they have provided will be a "it looks like this sir" document - this is what he signed (but we just dont have the original) - they never say the last bit. This is actually quite disgraceful as not only do they not have a case - 61 1a is quite clear "a SIGNED COPY" - but also (assuming here that this case was raised since 1st December last year) they had to aver that the agreement existed. Its clear it does not and I would put a wee word in with the Sheriff that their POC are telling porky pies. He wont do anything but it was proposed prior to 1st December that a copy of the agreement would have to be put in with the POC - so no agreement means no claim - but it was watered down to an averment. This allows them to continue to frighten people with court even though they have no basis for the claim in law. Dont imagine for a minute that their solicitors didnt know about this btw - make them squirm as well if you can.

It sounds to me as if you have done very well. I wouldnt be surprised if you get a letter between now and the next hearing offering "a significant discount", and if you sit tight they might seek a jointly agreed motion for dismissal or just withdraw the case. If they go for jointly agreed motion of dismissal, ask for absolvitor to put it away for good and all.

[Monty2007]

It is a strange part of the OCR process, the Sheriff always seems to agree to an extension to the adjustments period mainly because he wants all aspects of the dispute to be resolved such that he can concentrate on aspects that are still in dispute. It is also "unfair" that the Pursuer gets to compile the Record, in my case they submitted a substantive adjustment the day before the closing of the record - so obviously I had no chance to respond to their adjustments!! So it works both ways..........

 

Their lawyer would have been miffed that you turned up, 99% of these cases are unopposed and the decree is granted in favour of the Pursuer.

 

You are in a winning position, with the "agreement" and DN you have two shots so ensure you have all your inventories of productions ready and ensure you submit all the statues that you refer to.

 

The Sheriff will almost certainly direct a legal debate at the next calling since the dispute is on a contract, remedy and legal precedent. So prepare well in advance. Who are the lawyers from the other side?

 

PM me if you don't want to disclose on CAG, if they are a certain Glasgow firm I can help you more.......

[SRR1972]

Good luck Flapjack - this looks a lot like my issue as well so all the best to you