CCJ - defence due - please help!

[Chipmeister]

GH and FG - thanks ever so much. Will call the Court, confirm the fee and get 'em sent off post haste!

[Chipmeister]

Me again - just to confirm that I've spoken to the Court and the fee for the submission of the N244 requesting information under CPR is indeed £40.

 

Once again, OH has confirmed that there has been no post at Chipmeister Towers today...

 

Right! I'm off to the Post Office!

[citizenB]

Yep, £40.00 sounds correct. That will be without a hearing.. hopefully

 

"Chipmeister Towers", hmmm.. no wonder you have been targetted

[Chipmeister]

Yep, £40.00 sounds correct. That will be without a hearing.. hopefully

 

"Chipmeister Towers", hmmm.. no wonder you have been targetted

 

Yeah, with my 7 acres of landscaped gardens!!

 

Good to see you back CB, hope you had a good break.

[Chipmeister]

Evening all, I've had a special delivery card from the post office for a packet which requires a signature. I'm not expecting anything in the post that would require someone to take the effort to pay a fiver to deliver to me - does anyone know if MBNA send their Subject Access Requests by special delivery??

 

Or, would it be a copy of the court order I recently requested? Though surely that would be a letter not a packet??

 

If so, I'll make an effort to stop off at the post office tomorrow morning on the way to work to collect it!!

[foolishgirl]

The court is unlikely to send Rec. Del or similar & I wouldn't have thought MBNA would either. It's possibly a ploy from a DCA to see if you still live at that address?

 

However be careful how you sign for it chips. It's not unknown for the unscrupulous to copy & paste sigs from Rec. Del. slips. Make sure you use an 'unusual' sig. so you can identify in the future if needs be.

[Chipmeister]

That's what I thought - why would these people spend money on me?! Thanks for the warning FG - I'll make sure to alter my sig slightly.

[wycombe]

Morning CM

 

It is very likely your SAR.

 

MBNA sent mine by Special Delivery - and it was quite a large packet. So you will have plenty to scrutinise when you get home this evening.

[Chipmeister]

Well, lo and behold! The Special Delivery package was from Optima. So glad I went to pick it up as it contained much of the stuff I've been waiting for, and states it wants my full defence by Monday 16 August 2010. FG, I had to sign for it on one of those stupid machines so I didn't have to try to disguise the signature!!

 

What I will say from what I've read so far - their reply to defence seems poor. It does not contain sufficient information to prove MBNA sent the DN first class (even if they did it still falls short timewise), it claims that the first letter I received from them dated 4 May 2010 was their letter before action (as attached) and puts me to strict proof to show otherwise!!

 

Finally, the second agreement is dated incorrectly by me, not once, but TWICE. I apparently signed it before I was even born! This has not been picked up on by the person who signed the agreement under my signature with the incorrect date, or subsuequently by MBNA or Optima. How do I stand on this - is the agreement actually binding at all?

 

All the stuff sent to me (with the exception of the copy statements which made up most of the bulk of the package) is attached - please can someone review and comment?

 

Defence required by Monday 16 August 2010. Thanks as ever!

Optima Reply to Defence.pdf

Optima 31.14 and S78 Response.pdf

Credit Agreement 1.pdf

Credit Agreement 2.pdf

Original Terms.pdf

[emandcole]

Well, lo and behold! The Special Delivery package was from Optima. So glad I went to pick it up as it contained much of the stuff I've been waiting for, and states it wants my full defence by Monday 16 August 2010. FG, I had to sign for it on one of those stupid machines so I didn't have to try to disguise the signature!!

 

What I will say from what I've read so far - their reply to defence seems poor. It does not contain sufficient information to prove MBNA sent the DN first class (even if they did it still falls short timewise), it claims that the first letter I received from them dated 4 May 2010 was their letter before action (as attached) and puts me to strict proof to show otherwise!!

 

Finally, the second agreement is dated incorrectly by me, not once, but TWICE. I apparently signed it before I was even born! This has not been picked up on by the person who signed the agreement under my signature with the incorrect date, or subsuequently by MBNA or Optima. How do I stand on this - is the agreement actually binding at all?

 

All the stuff sent to me (with the exception of the copy statements which made up most of the bulk of the package) is attached - please can someone review and comment?

 

Defence required by Monday 16 August 2010. Thanks as ever!

 

 

Only had a very quick squizz at the reply to defence but good they have attached so much importance to the DN and confirmed it was compliant as they used an 'equivalent first class service'. What's that? Harry Potters owl?

 

As they've confirmed this and they are the claimant you'll be able to get them to prove they used such service, until they do second class service was used.

 

Regarding the DN however if your case comes down to such matters and you get a judge who knows the CCA and the importance of the DN in the process you may have to be mindful of the Brandon case. Some idiot in the high court decided they'd ignore parliament and rule that a short dated DN is perfectly fine .

 

Believe its been appealed and common sense should prevail but bear it in mind if Optima try to use a widely condemned and criticised example of 'judiciary excellence' to get round the DN. If it does come to that suggest the claim is eventually settled dependent on the outcome of the appeal - only fair.

[foolishgirl]

Well, lo and behold! The Special Delivery package was from Optima. So glad I went to pick it up as it contained much of the stuff I've been waiting for,

Hmmm.... methinks that Optima may have been reading this thread & putting 2+2 together (there was a guest viewing yesterday for some time) & hoping that by sending the stuff you have requested by Spec Del (no less!!) they hope to avoid a court order & costs thereof.

 

(Pity for them that they didn't use the same service for the DN!!)

 

So, not having had time to digest your docs yet, to deal with the applic. first.

 

1. Do you have ALL the docs you were requesting in your CPR31.14?

 

2. If you don't let the app go ahead

 

3. If you do, I suggest you contact the court & ask them if you can amend the app for simply the costs issue to be considered but I suspect they will say you will need to withdraw & deal with the costs at the hearing.

 

However if they say you can amend, check with the court but I think you will probably only need to write in stating that as the Claimant has now provided the info you requested, you wish to amend your applic. for the costs only issue to be considered on the grounds that the Claimant did not provide the info within the stipulated time limits, nor did they comply with the time limit set in the reminder you sent. They have therefore put you to needless expense in seeking the application for strike out & you seek the costs thereof.

[foolishgirl]

Comments on your docs FWIW

 

1. Agree with emc on the DN postage issue - strict pop required, also for the LBA.

 

2. These look like typical MBNA agreements. They need to prove that Page 2 was on the reverse of Page 1 or otherwise attached to it. Unlikely given that Page 2 occupies about one third of the space of Page 1. They also need to prove that those (suspect) T&Cs were applicable at the time of the agreement & were actually sent to you as part of the application process.

 

Have a look in the MBNA forum - you'll see losts of egs of agreements like this & the reasons as to why they shouldn't be enforced.

[Chipmeister]

Hi FG, replies below in red:

 

 

1. Do you have ALL the docs you were requesting in your CPR31.14?

I have everything I requested except (and I quote from my draft order) "with a copy of any proof of postage" in respect of the DN. However, Optima may claim that the ridiculous print outs they sent me constitute proof of postage so not sure how to approach this? Should I let the app go ahead? I know they have received it as I sent it SD but I have not received any confirmation from the Court as yet.

 

2. If you don't let the app go ahead

 

3. If you do, I suggest you contact the court & ask them if you can amend the app for simply the costs issue to be considered but I suspect they will say you will need to withdraw & deal with the costs at the hearing.

 

[Chipmeister]

Hi emandcole, responses in red below:

 

Only had a very quick squizz at the reply to defence but good they have attached so much importance to the DN and confirmed it was compliant as they used an 'equivalent first class service'. What's that? Harry Potters owl?

LOL!

As they've confirmed this and they are the claimant you'll be able to get them to prove they used such service, until they do second class service was used.

My N244 specified "with a copy of any proof of postage". I don't think I have that, do you?

 

Regarding the DN however if your case comes down to such matters and you get a judge who knows the CCA and the importance of the DN in the process you may have to be mindful of the Brandon case. Some idiot in the high court decided they'd ignore parliament and rule that a short dated DN is perfectly fine .

Thanks, will read up on this. Forewarned is forearmed!

 

Believe its been appealed and common sense should prevail but bear it in mind if Optima try to use a widely condemned and criticised example of 'judiciary excellence' to get round the DN. If it does come to that suggest the claim is eventually settled dependent on the outcome of the appeal - only fair.

[Chipmeister]

Thanks FG, responses in red:

 

Comments on your docs FWIW

 

1. Agree with emc on the DN postage issue - strict pop required, also for the LBA.

I've kept the envelope for the "LBA". I still don't believe I have received a proper LBA - I don't agree that what they are claiming can be relied upon.

2. These look like typical MBNA agreements. They need to prove that Page 2 was on the reverse of Page 1 or otherwise attached to it. Unlikely given that Page 2 occupies about one third of the space of Page 1. They also need to prove that those (suspect) T&Cs were applicable at the time of the agreement & were actually sent to you as part of the application process.

The way they sent the agreements was quite odd - they were double sided A3 sheets with those terms on the back. Of course they could have added anything...

 

Have a look in the MBNA forum - you'll see losts of egs of agreements like this & the reasons as to why they shouldn't be enforced.

Will check this out, thanks.

 

I was really worried when I received the package this morning, but having studied the documents I still don't think they are taking me seriously. Hmmmm - more fool them!

 

Any thoughts on the agreement I dated in two places with a date actually prior to my birth???!

[foolishgirl]

Any thoughts on the agreement I dated in two places with a date actually prior to my birth???!

 

IMO this should make an agreement void - how could you sign an agreement before you were born? But I suspect a DJ would overlook it as a de minimis error unless you could point to case law for similar.

[foolishgirl]

My N244 specified "with a copy of any proof of postage". I don't think I have that, do you?

 

No, but not sure that it is grounds for granting an SO as you could always seek it again as part of disclosure & then argue out the case for not having it as available material evidence at the hearing.

[Chipmeister]

No, but not sure that it is grounds for granting an SO as you could always seek it again as part of disclosure & then argue out the case for not having it as available material evidence at the hearing.

 

That's fair enough. I will contact the court to see if they will amend the order re costs etc.

 

So, I should have enough to construct my defence presumably, although I do not consider the screen dumps they have provided as proof as postage. I guess that simply goes in my reply.

 

Do I file this full defence with the Court or Optima? Optima say I have until 4pm on Monday 16 August to file a defence.

[foolishgirl]

 

So, I should have enough to construct my defence presumably, although I do not consider the screen dumps they have provided as proof as postage. I guess that simply goes in my reply.

 

Screen dumps are DEFINITELY not pop but this will go in your defence & later, your WS plus in your AQ you will ask for directions that this be provided.

 

Do I file this full defence with the Court or Optima? Optima say I have until 4pm on Monday 16 August to file a defence.

 

It's not up to Optima to decide on timetables!! Your deadline for submission depends on the date of the claim - you have 14 days to acknowledge service & a further 14 days to submit your defence. You can work out the date from that, sometimes it's at the top of the claim form but if you are unsure, confirm with the court.

 

You send your defence into the court - use Spec. Del to ensure it gets there. You can do it online but I think you will probably the space permitted is inadequate. It's up to you whether you send Optima a copy or not as the court will send them one if you enclose enough copies but if you do, 2nd class is OK but get POP.

 

 

If you want help with your defence, post up a draft for comments before submitting.

[Chipmeister]

If you want help with your defence, post up a draft for comments before submitting.

 

Thanks FG. As I have already filed an embarrassed defence on line I'm guessing the timetable on the N1 form is no longer relevant, ie when I acknowledged service I was granted the extra time to submit my defence, that time is now passed. Presumably Optima have sent a copy of their missive to the Court, so if I check on MCOL there may be an update on my case giving me until 4pm on Monday 16 August. I will check with the Court to see what's what.

 

I will indeed post up a draft for comments - I will work on it over the weekend as I'm pretty happy with the response I need to prepare, I just need to be sure I'm not being too "wordy!"

 

Thanks as ever for all your input.

 

Chips

Edited August 5, 2010 by Chipmeister
added info

[Chipmeister]

Well, I've just finished going through the statements. There are loads missing for 2007 on one account and 2006 for the other. This won't prevent me from submitting my defence but is it worth asking them for the missing statements?

[Chipmeister]

Well, I've just finished going through the statements. There are loads missing for 2007 on one account and 2006 for the other. This won't prevent me from submitting my defence but is it worth asking them for the missing statements?

 

I've also noticed in the "updated" terms and conditions, I have a paragraph 8, as mentioned in the DN! What a coincidence...

[Chipmeister]

Just had a read of the MBNA thread on unenforceability - my credit agreements do not have any reference to a credit limit on them and are prior to 2007. This suggests to me that they are unenforceable? Is my understanding correct please?

[foolishgirl]

There are loads missing for 2007 on one account and 2006 for the other. This won't prevent me from submitting my defence but is it worth asking them for the missing statements?

These should come from MBNA as part of your SARs request but it may be worth dropping a line to Optima too if you asked for statements as part of your CPR31.14 & let them know that they have not completely fulfilled your request.

 

Just had a read of the MBNA thread on unenforceability - my credit agreements do not have any reference to a credit limit on them and are prior to 2007. This suggests to me that they are unenforceable? Is my understanding correct please?

 

Need to have a proper look at your docs but usually credit cards state that a limit will be determined from time to time by the OC (or similar phrase) & does not need not be quoted as an exact figure.

[citizenB]

Hi chipmeister. Just catching up on your thread. You seem to be in control of things.