MBNA county court Summons " Help Please

[DizzieDiva2010]

On my list I think I should list;

1) My witness statement

2) Tomlin Order

3) Computor Log Sheet showing print out of Severe Hardship Programme approved

4) The Default Notice

 

 

Amended Defence

 

I XXXXXX XXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by MBNAEurope Bank Ltd. except where explicitly stated below the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.

 

It is admitted that I once held an account numbered XXXX XXXX XXXX XXXX dated on or around November 2000 but the balance of this account was transferred to a new account and agreement within the MNBA Europe Bank Limited on or around xx xxxxx xxxxxx to account number xxxx xxxx xxxx xxxx by invitation from the the claimant and subject to an introductory special interest rate of x%. It therefore averred that account number xxxx xxxx xxxx xxxx has a nil balance

 

During the following years I suffered great distress and violence within my relationship with my ex partner and prolonged financial difficulties. This was brought to the attention of the claimant and they would place me on their severe hardship payment plan. This would entail a vastly reduced payment and interest frozen on the current debt. This was proved in writing and agreed between ourselves. Thus varying any terms and conditions of any original agreement and I refer to the screen shot from their computer systems showing an entry dated 181109 at 0956 Severe Hardship Program approved.

 

I honoured the agreement and tried to make payments as agreed. However with further financial difficulties with my other creditors and banking facilities this became imposable to maintain.

 

On the xx xxxx xxxxxxI received a Default Notice dated 8 March 2010 which was sent second class UK mail and was received on the 13th March 2010. The default notice did not allow 14 days and the time required for service. It referred to account number xxxx xxxx xxxx xxxx.

 

I was served a summons dated xx xxx xxxxxx from Northampton CCBC in which the Claimants plead the particulars has a "contract" conceived on or about November 2000.It is averred that any contract from that date is now dormant and is subject to a nil balance.

 

On the 11th May 2010 i requested a copy of the contract referred to by the Claimant by way of a Section 78 request. Enclosed with the letter was the £1.00 statutory fee, and it was sent by recorded delivery to the Claimant, furthermore I also requested further information by way of a CPR 31.14.

The Claimant responded to the CPR request by a letter dated 12th May 2010 stating that has they had not referred to any documents within their particulars, my CPR request did not apply.

With regards to my Sec 78 request they did not respond.

Furthermore MBNA did not give me adequate warning before issuing the summons and did not follow Pre Action Protocols. They ignored reasonable offers made to them by myself.

 

On the 11th May I also requested further information, because of the claimant’s frustrations, by way of a D.S.A.R.They did respond vaguely and included various documents terms and conditions screen shots and partial statements. Along with the inclusion of a purported credit agreement dated November 2000 which in essence was an application form.

 

Therefore being unable to supply a copy of the agreement that replaced the “contract" that they refer to in their particulars, under section 78(6)(a) of the Consumer Credit Act 1974, the Claimants are not entitled, whilst the default continues to enforce the alleged agreement.

 

Furthermore the Default Notice dated 8th March 2010 refers to the new account number which they are unable to furnish. As no agreement can be furnished between the Claimant and the Defendant, the Default Notice to which the Claimants refer has been issued unlawfully. Furthermore, the Default Notice requests payment of that which is denied, which includes penalty charges. Penalty charges are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and under The Unfair Terms in Consumer Contracts Regulations 1999. An amount stated in a Default Notice must be accurate to be enforceable, the inclusion of the aforementioned charges also renders it legally invalid.

 

The Claimants have instigated these proceedings unlawfully, given that they are still in default and are precluded from taking any enforcement action whilst said default continues. Furthermore, these proceedings have been initiated by the Claimants knowingly that I was subject to a severe payment plan is considered to be vexatious and along with the fact they have not proved that any debt exists.

 

The Claimants have produced a copy of an application form from a previous account held and cleared, which is not evidence that I entered into a credit agreement with the Claimants. Accordingly, I submit that no agreement exists between the Defendant and the Claimant for there to be any breach of the terms and conditionson my part.

 

As no agreement exists between the Claimant and the Defendant, the Default Notice to which the Claimants refer has been issued unlawfully along with any Termination.

 

The Claimants are not entitled to claim interestat the rate of 55.23% per annum from the date of these proceedings to the date of judgment, or at all, as there is no evidence that an agreement exists between the Defendant and the Claimant and is therefore denied.

Edited January 11, 2011 by DizzieDiva2010

[AndyOrch]

DD you only complete the last page as Defendent Section :-

I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.List and number here, as above, the documents in your control which you object to being inspected.

I would include their Costs Notice and payment evidence also with what you have already listed.

Regards

Andy

[DizzieDiva2010]

DD you only complete the last page as Defendent Section :-

 

I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.List and number here, as above, the documents in your control which you object to being inspected.

 

I would include their Costs Notice and payment evidence also with what you have already listed.

 

Regards

 

Andy

 

Will do.

 

Andy; if a defendant part defends you have told me that the defendant will usually end up with a CCJ, i have paid 11 token payments at £1 and one payment of £20 isnt that myself admiting the debt now? Therefore is this more than likely going to result in a CCJ with huge costs? If the Judge grants the CCJ will i have to pay these costs due to loosing my case or is this the Judges decision?

 

1) Shall i send my witness statement with this form?

2) In your opinion shall i request the previous Judge and question why i have a new Judge?

3) Shall I question why my claim has been allocated to the fast track when the debt is under £5000?

4) I want disclosure of the executed agreement for the second account number how do i go about this, shall i add this to my list?

5) I want my SAR complied with and my missing statements how do i go about this also?

Edited January 11, 2011 by DizzieDiva2010

[AndyOrch]

Will do.

 

Andy; if a defendant part defends you have told me that the defendant will usually end up with a CCJ, i have paid 11 token payments at £1 and one payment of £20 isnt that myself admitting the debt now? No because your not denying the debt either Therefore is this more than likely going to result in a CCJ with huge costs? Not if its dismissed but if not then very likely so If the Judge grants the CCJ will i have to pay these costs due to loosing my case or is this the Judges decision? He may restrict them and adjust the debt by the unfair interest and inflated costs. That is what your fight is all about not avoiding the debt

 

1) Shall i send my witness statement with this form? No the Court and Claimant are already in receipt

2) In your opinion shall i request the previous Judge and question why i have a new Judge? No its not your jurisdiction

3) Shall I question why my claim has been allocated to the fast track when the debt is under £5000? Absolutely change to SCT is vital and will restrict the Costs

4) I want disclosure of the executed agreement for the second account number how do i go about this, shall i add this to my list?[/color]No you cant list requests but you could disclose an old statement with the original account number

5) I want my SAR complied with and my missing statements how do i go about this also?

Raise it at Trial as its vital for the debt to be proved.

Andy

[DizzieDiva2010]

Raise it at Trial as its vital for the debt to be proved.

 

 

 

Andy

 

1) Im unable to disclose a statement with the first original account number due to MBNA not sending me them in my SAR (not fully complying) there is a reason why they are not complying IMO.

2) I shall put a request to the Judge for SCT, is a letter sufficient?

3) Does the form N265 have to go to the court or Restons?

[AndyOrch]

Doesn't have to be a statement anything to prove the original account existed.

You could write to the Case Manager asking why, sometimes claim of less than 5K are allocated to FT due to the its complexities.Yours is far from complex only the Claimant is making appear so.

The N265 goes to the Claimants Sols but retain a copy for yourself and bundle.As I have already stated its always an idea to write/ email firstly asking if they are ready to exchange and you will reciprocate on receipt of theirs.Always an heads up to view theirs before completion of yours.

[DizzieDiva2010]

On my list I think I should list;

1) My witness statement

2) Tomlin Order

3) Computor Log Sheet showing print out of Severe hardship Programme approved

4) The Default Notice

5) Costs Notice/Payment Evidence

6) Letter Confirming Severe Hardship Approval

7) Application Form

8) Emails/Letters sent to MBNA Who put the smily face? lol

9) CPR 31.14 Letter to Restons

10) Reciept showing account number.

11) Subject Access Request letter & responce

12) Booby prize for MBNA lol

Edited January 11, 2011 by DizzieDiva2010

[AndyOrch]

On my list I think I should list;

1) My witness statement

2) Tomlin Order and amendments and responses

3) Computer Log Sheet showing print out of Severe hardship Programme approved

4) The Default Notice

5) Costs Notice/Payment Evidence

6) Letter Confirming Severe Hardship Approval

7) Application Form

8) Emails sent to MBNA ? Absolutely

9) CPR 31.14 Letter to Restons

SAR request CCA Request and response

[DizzieDiva2010]

Doesn't have to be a statement anything to prove the original account existed.

You could write to the Case Manager asking why, sometimes claim of less than 5K are allocated to FT due to the its complexities.Yours is far from complex only the Claimant is making appear so. I will do so tomorrow.

The N265 goes to the Claimants Sols but retain a copy for yourself and bundle. Ok i thought i sent it to the Court! As I have already stated its always an idea to write/ email firstly asking if they are ready to exchange and you will reciprocate on receipt of theirs.Always an heads up to view theirs before completion of yours. Will email them

 

8) Emails sent to MBNA (this was offering them payment before they unlawfully terminated my account & ignored)

 

Why does number 8) appear with a smily face lol

Edited January 11, 2011 by DizzieDiva2010

[AndyOrch]

Ok for now DD? Long day for me time for my beauty sleep:oops:

[DizzieDiva2010]

Ok for now DD? Long day for me time for my beauty sleep:oops:

 

Thank you for your help tonight. Night.

[DizzieDiva2010]

Andy; Sorry to bother you again I have brain fog this morning, I am also dealing with Natwest and the Financial Ombudsman and cannot think clearly!

 

Your advise was; You could write to the Case Manager asking why, sometimes claim of less than 5K are allocated to FT due to the its complexities.Yours is far from complex only the Claimant is making appear so.

 

In my letter to the case manager how should i draft this letter, why is my case far from complex and why is the claimant making it appear so? I know you will word this better than me and it will be shorter and straight to the point, my letter's are too long.

 

Also on this " General Form of Judgment or Order" 2) There shall be simultaneous exchange of witness statements by 16 February 2011? (im worried im going to miss a deadline because i dont understand)

Thanking you very much.

[AndyOrch]

Andy; Sorry to bother you again I have brain fog this morning, I am also dealing with Natwest and the Financial Ombudsman and cannot think clearly!

 

Your advise was; You could write to the Case Manager asking why, sometimes claim of less than 5K are allocated to FT due to the its complexities.Yours is far from complex only the Claimant is making appear so.

 

In my letter to the case manager how should i draft this letter, why is my case far from complex Because you state so and why is the claimant making it appear so? Because they insist on FT I know you will word this better than me and it will be shorter and straight to the point, my letter's are too long. Sorry DD Idont have time to draft that for you today Im sure you can manage something short and succinct

 

Also on this " General Form of Judgment or Order" 2) There shall be simultaneous exchange of witness statements by 16 February 2011? (im worried im going to miss a deadline because i dont understand) Whats not to understand your WS is mostly completed anyway(bar any last min adjustments) and you will exchange the same way as with your N265 (4 weeks yet anyway to 16/2/11)

Thanking you very much.

 

Regards

Andy

 

[DizzieDiva2010]

I have not recieved disclosure from Reston Solicitors as yet!! The DEADLINE was 12 January 2011!!! Im going to send mine today. because it will be late.

[AndyOrch]

I have not received disclosure from Reston Solicitors as yet!! The DEADLINE was 12 January 2011!!! Im going to send mine today. because it will be late.

 

Allow until Friday if no receipt email them requesting exchange and copy the County Court.

 

Regards

 

Andy

[DizzieDiva2010]

Regards

 

Andy

 

 

No worries. I recieved their disclosure list today and it listed everything they have sent me including general correspondance, nothing new. I sent mine today recorded. I shall get on and tweek my witness statement in order to send it in time.

Thanks

[DizzieDiva2010]

 

1) Are they asking me to accept a CCJ and court proceedings will be stopped? If so will i have to pay costs on top of my debt?

 

2) They admit that the bank did accept me on a Severe Hardship Programme so why did they terminate my account and issue court proceedings, is this unreasonable on their behalf?

 

3) They are ademant they sent the Default Notice first class when i have the original envelope which is second class UKmail.

 

4) The account i opened in 2000 was closed down and had a nil balance, therefore a new account was opened and they are using the application form for the old account and have not furnished a credit agreement for this new account.

 

5) MBNA to this day still have not sent me all my statements going back 6 years which would show the old account number and the DATE the account had a nil balance and was closed. The statements i have recieved begin with the new account number in 2008 and there is no reference that the new account number is related to the same agreement!!

 

6) On the application form the terms and conditions they have given me are in no way related as it states on the form "IMPORTANT-DATA PROTECTION Before you sign this agreement you should read condition 11 in the terms and conditions provided. CONDITION 11 states for the period of six months starting on the date of opening the account they will not increase the interest rate on any cash advance or handling charge!

 

7) With regards to late fee's, the account should have had no interest applied as that was the offer when i opened it.

 

8) They do not see how CPR will assist me?

 

Edited January 26, 2011 by DizzieDiva2010

[Old Cogger]

Any response in letters from you state "Without Prejudice".

[DizzieDiva2010]

Any response in letters from you state "Without Prejudice".

 

Will do..

[Chipmeister]

I understand "without prejudice" to mean "this document is not admissable in court."

 

If my understanding is correct then it is interesting that Restons have titled their letter with it!!??

[Dotty50]

I understand "without prejudice" to mean "this document is not admissable in court."

 

If my understanding is correct then it is interesting that Restons have titled their letter with it!!??

 

That was my thinking too, you have nothing to hide Dizzie, send an open response accordingly.

 

From reading on here it seems that they just try to force your hand and it's really not fair!

 

BTW, I have yet to see any DN's sent 1st class, perhaps that's why the letter is WP! That's one porky pie, perhaps there are others within?

[gh2008]

'WP' only covers documents that are genuinely trying to seek/offering a settlement.

 

The idea is that the document can then not be used against them to show that they are willing to accept less etc.

 

WPSATC basically means that the doc can be produced when it comes to deciding costs and can show whether one party has tried to act reasonably or not - if you lose and were offered a reasonable deal before, you could get seriously stung when it comes to costs.

 

You do not have to head replies with WP as the WP covers the whole 'conversation' if it is indeed wrt negotiating an offer

 

putting WP on a letter that is not a genuine offer to settle means nothing... it can still be used - there is caselaw to back that up somewhere

 

just my understanding following lots of research on the subject

[Chipmeister]

There is no genuine offer of anything in Dizzy's letter from what I can see - it just looks like a list of reasons they've come up with to try and scare her into dropping her defence. How are these people allowed to practice law? It's shocking.

[gh2008]

exactly - I would say it was cause for a complaint against the bank TBH ....

[Dotty50]

MBNA have only recently had their knuckles wrapped so another complaint.................another nail in their coffin!