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Hi CB, thanks for dropping by. I hope I'm in control, certainly at this point I don't feel overwhelmed by the info provided by MBNA - I can see what needs to be addressed and how to go about it. I may need some guidance on the agreements but I'll draft my full defence and hopefully CAGgers can offer advice.

 

BTW, my embarrassed defence was filed on 9 July 2010 and acknowledged by the Court on Monday 12 July. Is there a legal deadline that Optima have to provide their response to my defence by? It's just the docs they sent me were dated 2 August 2010 so the earliest anyone could have received them was 3 August (I got mine on 5 August as there was noone home to sign for the special delivery on 4 August when they first tried to deliver). It seems to me that it took a long time for them to submit their response!

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Hi

 

How they can state served 2nd August when it was only sent out to you that day (at best) who knows!

 

As you can prove that service of their latest documents was on the fifth, you should have 14 days from then to reply with your defence, I believe.

 

If you need the time it might be worth writing to them to that effect, asking for their agreement that you therefore have until 19th August to get your full defence to them. If they don't agree, it is something you can show the Judge to demonstrate how unreasonable they have been - perhaps?

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Hi

 

How they can state served 2nd August when it was only sent out to you that day (at best) who knows!

 

As you can prove that service of their latest documents was on the fifth, you should have 14 days from then to reply with your defence, I believe.

 

If you need the time it might be worth writing to them to that effect, asking for their agreement that you therefore have until 19th August to get your full defence to them. If they don't agree, it is something you can show the Judge to demonstrate how unreasonable they have been - perhaps?

 

Well, it just goes to show that special delivery works best when dealing with firms - at an office / court, there will always be someone there to sign for a package, whereas you cannot guarantee that there'll be someone to sign at a residential property. Under normal circumstances I wouldn't have gone to the sorting office until Saturday, but as I wasn't expecting anything in the post other than Optima correspondence I went to collect it the following morning after collecting the card.

 

I will write to Optima, and will call the court as well.

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Evening CAGgers, please find attached my full defence for review / comment / pulling apart!! I am not sure if I have included enough information but I am not keen to show all my cards at this stage. Please refer to post 209 for the docs in question, ie the agreements and the Claimant's Reply to Defence.

 

Many thanks to you all.

Defence prepared responding to Claimant’s Reply to Defence (“Claimant’s Reply”) dated 2 August 2010

 

1) I, Chipmeister, am the defendant in this action and make the following statement as my defence to the claim made by MBNA Bank Europe Ltd.

 

2) Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.

 

3) The Defendant refers to Paragraph 3 of the Claimant’s Reply. The Defendant confirms receipt of the letter attached as pages 1-2 of the Claimants’ Reply, however, these “more detailed” Particulars of Claim did not include copies of the purported written contracts upon the basis of which these proceedings have been brought, which surely the Claimant should have had to hand before commencing proceedings.

4) The Defendant appreciates that as the claim was issued via the Northampton County Court Bulk Centre that the Claimant does not have to file full Particulars of Claim, as the Claimant’s Reply notes in Paragraph 4, but this does not excuse the fact that the purported written contracts should have been included with the Claimant’s more detailed Particulars of Claim to allow the Defendant to prepare a full and proper defence.

4a) Also in Paragraph 4, the Claimant avers to have sent copies of the purported written contracts to the Defendant. The Defendant in fact received these documents on 5 August 2010, in the same package as the Claimant’s Reply.

5) Paragraph 5 of the Claimant’s Reply states that “a Letter Before Action” was sent by the Claimant’s solicitors to the Defendant dated 4 May 2010” (annexed as page 3 in the Claimant’s Reply) and Paragraph 6 states that “the Claimant avers that all pre-action protocol has been complied and the Claimant puts the Defendant to strict proof as to otherwise.” It is not up to the Defendant to prove anything in this respect as it is the Claimant that is bringing this action, but the Defendant believes that the letter detailed above does not comply as a Letter Before Action under the Civil Procedure Rules Pre Action Protocols Para 4.3 and puts the Claimant to strict proof as to otherwise.

6) The Claimant’s Reply notes the Defendant’s request dated 15 June 2010 requesting copies of any Consumer Credit Agreements purported to be the Defendant’s pursuant to S.77-79 of the Consumer Credit Act 1974.

6a) The Claimant’s solicitor wrote to the Defendant on 28 June 2010 stating that the Defendant should approach the Claimant directly for this information (as attached at Chipmeister 1). The Defendant wrote to the Claimant’s solicitor on 30 June 2010 and referred them to Section 175 of the CCA 1974 (as attached at Chipmeister 2).

6b) The Claimant’s solicitor replied on 1 July 2010 advising that they require a further 21 days from the date of receipt of the Defendant’s letter (believed by the Defendant to be 21 July 2010) in order to provide the information required (as attached at Chipmeister 3). The Claimant’s solicitors then missed their own set deadline and the Defendant received the requested documents on 5 August 2010, in the same package as the Claimant’s Reply. The Claimant and their solicitors have frustrated the Defendant by failing to fulfil the S.77-79 request within the recognised time limits, and in the case of the Claimant’s solicitors, time limits set by them.

7) On 8 July 2010 the Defendant submitted requests under CPR 18 and CPR 31.14 via First Class Recorded Delivery for copies of the agreements, default notices copies of all statements since inception of the accounts in order to assess if the sum claimed is accurate, and any other documentation that the Claimant is relying upon in pursuit of this claim.

7a) On 13 July 2010 the Defendant received a letter from the Claimant’s Solicitors dated 9 July 2010 (as attached at Chipmeister 4) stating that such requests were inappropriate at this time. The Defendant waited until the recognised time limit of 7 days in respect of the CPR 31.14 request had passed, and wrote to the Defendant’s solicitors on 17 July 2010 (as attached at Chipmeister 5) exercising their rights under CPR 31.15. The Defendant did not receive a reply to this letter.

7b) Frustrated by the lack of response from the Claimant and their solicitors, the Defendant prepared and sent an Application Notice on Form N244 on 29 July 2010 (as attached at Chipmeister 6.)

7c) The Defendant heard nothing further from either the Claimant or the Claimant’s solicitor until 5 August 2010, when the Defendant received a package of documents from the Claimant’s solicitor, which contained the Reply to Defence, copies of the purported agreements, copies of terms and conditions and copies of default notices. The package also contained some copy statements as asked for in the CPR 31.14 request, although many of the copy statements requested were missing.

7d) In Paragraph 9 of the Claimant’s Reply, “the Claimant confirms that those requests (being CPR 31.14 and CPR 18) are being dealt with and will be dealt with imminently.” These matters have indeed now been addressed but as mentioned previously some information requested is still missing. The Defendant was again frustrated by the lack of communication from the Claimant and their solicitors and should not have felt the need to make an application to Court at considerable expense in an attempt to obtain the information required.

8) In respect of the Default Notices and paragraphs 10 to 15 of the Claimant’s Reply, the Defendant observes that the Claimant’s Reply includes print outs of the of the Claimant’s system notes. Paragraphs 11 and 13 state that the default notices were sent “using the equivalent of first class post”. The Defendant puts the Claimant to strict proof of the date of mailing of the Default Notices.

9) The Defendant notes that the Claimant’s Reply is detailed as having been served “this second day of August 2010”. These documents may well have been dated 2 August 2010 but were not received by the Defendant until 5 August 2010, as they were sent via Special Delivery and there was no-one available at the home of the Defendant to sign for them when delivery was first attempted on 4 August 2010. The Defendant is therefore further frustrated in having lost 2 of the 14 days in which to review all the documentation provided before the defence filing deadline of 4pm on Monday 16 August 2010.

9a) On collecting the envelope, the Defendant noticed Royal Mail tape over the sides noting “found open or damaged and officially secured.” This envelope contained important information and many of the Defendant’s personal details which were at risk of being disclosed to anybody who cared to look.

10) In response to many requests for the Claimant to provide a true copy of the original executed credit agreement, the Claimant has only supplied a “re-constituted” agreement. It is averred from the conduct of the Claimant that they do not have an original agreement to produce to the Court in support of its claim. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

 

11) Notwithstanding the fact that no valid credit agreement which complies with the Consumer Credit Act 1974 and subsequent Regulations made under the Act has been produced, it is averred that no valid default has been served upon the defendant and therefore the Claimant is precluded from taking this action.

 

12) In view of the matters pleaded, I respectfully request the court give consideration to striking out the Claimants’ case pursuant to part 3.4.

 

13) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending.

 

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings: or

 

© That there has been a failure to comply with a rule, practice direction or court order.

 

13) If the court considers such action inappropriate, it is requested that the court order the claimant to produce the following documents at a hearing:

 

a) An original credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983.

 

b) Proof of the time of mailing of any default notice sent by the Claimant in respect of the account.

c) 'The original signed, executed agreement must be held for 5 years following the closure of an account under The Money Laundering Regulations 2007 & there should be no reason why the Claimant should not produce an original at the hearing'

 

Without the production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice the Defendant’s rights to a fair trial.

 

 

Statement of Truth

 

I, Chipmeister, believe the above statement to be true and factual.

 

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

 

Date..................... ......................... .................

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Me again - I was also distressed to notice, whilst doing some research, that Practice Direction 16 paragraph 3.4 states that "Particulars of claim which are not included in the claim form must be verified by a statement of truth, the form of which is as follows:

‘[i believe][the claimant believes] that the facts stated in these particulars of claim are true.’" This statement is actually in the additional PoC sent to me - does this mean they can get away with not sending copies of the purported agreements with the additional PoC?? I haven't focused on this in my defence just in case.

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Evening CAGgers, please find attached my full defence for review / comment / pulling apart!! I am not sure if I have included enough information but I am not keen to show all my cards at this stage. Please refer to post 209 for the docs in question, ie the agreements and the Claimant's Reply to Defence.

 

Many thanks to you all.

 

Defence prepared responding to Claimant’s Reply to Defence (“Claimant’s Reply”) dated 2 August 2010

 

1) I, Chipmeister, am the defendant in this action and make the following statement as my defence to the claim made by MBNA Bank Europe Ltd.

 

2) Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.

 

3) The Defendant refers to Paragraph 3 of the Claimant’s Reply. The Defendant confirms receipt of the letter attached as pages 1-2 of the Claimants’ Reply, however, these “more detailed” Particulars of Claim did not include copies of the purported written contracts upon the basis of which these proceedings have been brought, which surely the Claimant should have had to hand before commencing proceedings.

 

4) The Defendant appreciates that as the claim was issued via the Northampton County Court Bulk Centre that the Claimant does not have to file full Particulars of Claim, as the Claimant’s Reply notes in Paragraph 4, but this does not excuse the fact that the purported written contracts should have been included with the Claimant’s more detailed Particulars of Claim to allow the Defendant to prepare a full and proper defence.

 

4a) Also in Paragraph 4, the Claimant avers to have sent copies of the purported written contracts to the Defendant. The Defendant in fact received these documents on 5 August 2010, in the same package as the Claimant’s Reply.

 

5) Paragraph 5 of the Claimant’s Reply states that “a Letter Before Action” was sent by the Claimant’s solicitors to the Defendant dated 4 May 2010” (annexed as page 3 in the Claimant’s Reply) and Paragraph 6 states that “the Claimant avers that all pre-action protocol has been complied and the Claimant puts the Defendant to strict proof as to otherwise.” It is not up to the Defendant to prove anything in this respect as it is the Claimant that is bringing this action, but the Defendant believes that the letter detailed above does not comply as a Letter Before Action under the Civil Procedure Rules Pre Action Protocols Para 4.3 and puts the Claimant to strict proof as to otherwise.

 

6) The Claimant’s Reply notes the Defendant’s request dated 15 June 2010 requesting copies of any Consumer Credit Agreements purported to be the Defendant’s pursuant to S.77-79 of the Consumer Credit Act 1974.

 

6a) The Claimant’s solicitor wrote to the Defendant on 28 June 2010 stating that the Defendant should approach the Claimant directly for this information (as attached at Chipmeister 1). The Defendant wrote to the Claimant’s solicitor on 30 June 2010 and referred them to Section 175 of the CCA 1974 (as attached at Chipmeister 2).

 

6b) The Claimant’s solicitor replied on 1 July 2010 advising that they require a further 21 days from the date of receipt of the Defendant’s letter (believed by the Defendant to be 21 July 2010) in order to provide the information required (as attached at Chipmeister 3). The Claimant’s solicitors then missed their own set deadline and the Defendant received the requested documents on 5 August 2010, in the same package as the Claimant’s Reply. The Claimant and their solicitors have frustrated the Defendant by failing to fulfil the S.77-79 request within the recognised time limits, and in the case of the Claimant’s solicitors, time limits set by them.

 

7) On 8 July 2010 the Defendant submitted requests under CPR 18 and CPR 31.14 via First Class Recorded Delivery for copies of the agreements, default notices copies of all statements since inception of the accounts in order to assess if the sum claimed is accurate, and any other documentation that the Claimant is relying upon in pursuit of this claim.

 

7a) On 13 July 2010 the Defendant received a letter from the Claimant’s Solicitors dated 9 July 2010 (as attached at Chipmeister 4) stating that such requests were inappropriate at this time. The Defendant waited until the recognised time limit of 7 days in respect of the CPR 31.14 request had passed, and wrote to the Defendant’s solicitors on 17 July 2010 (as attached at Chipmeister 5) exercising their rights under CPR 31.15. The Defendant did not receive a reply to this letter.

 

7b) Frustrated by the lack of response from the Claimant and their solicitors, the Defendant prepared and sent an Application Notice on Form N244 on 29 July 2010 (as attached at Chipmeister 6.)

 

7c) The Defendant heard nothing further from either the Claimant or the Claimant’s solicitor until 5 August 2010, when the Defendant received a package of documents from the Claimant’s solicitor, which contained the Reply to Defence, copies of the purported agreements, copies of terms and conditions and copies of default notices. The package also contained some copy statements as asked for in the CPR 31.14 request, although many of the copy statements requested were missing.

 

7d) In Paragraph 9 of the Claimant’s Reply, “the Claimant confirms that those requests (being CPR 31.14 and CPR 18) are being dealt with and will be dealt with imminently.” These matters have indeed now been addressed in part but as mentioned previously some information requested is still missing. The Defendant was again frustrated by the lack of communication from the Claimant and their solicitors and should not have felt the need to make an application to Court at considerable expense in an attempt to obtain the information required.

 

8) In respect of the Default Notices and paragraphs 10 to 15 of the Claimant’s Reply, the Defendant observes that the Claimant’s Reply includes print outs of the of the Claimant’s system notes. Paragraphs 11 and 13 state that the default notices were sent “using the equivalent of first class post”. The Defendant puts the Claimant to strict proof of the date of mailing of the Default Notices and that the delivery service times of the equivalent service are indeed the same as Royal Mail's First Class postal service.

 

9) The Defendant notes that the Claimant’s Reply is detailed as having been served “this second day of August 2010”. These documents may well have been dated 2 August 2010 but were not received by the Defendant until 5 August 2010, as they were sent via Special Delivery and were signed for as received on the 5th August, not the 2nd August. The Defendant is therefore further frustrated in having lost 2 of the 14 days in which to review all the documentation provided before the defence filing deadline of 4pm on Monday 16 August 2010.

 

9a) On collecting the envelope, the Defendant noticed Royal Mail tape over the sides noting “found open or damaged and officially secured.” This envelope contained important information and many of the Defendant’s personal details which were at risk of being disclosed to anybody who cared to look and I am disadvantaged because I cannot be confident that I have received all the documents that were meant to be enclosed.

 

10) In response to many requests for the Claimant to provide a true copy of the original executed credit agreement, the Claimant has only supplied a “re-constituted” agreement. It is averred from the conduct of the Claimant that they do not have an original agreement to produce to the Court in support of its claim. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

 

 

 

 

11) Notwithstanding the fact that no valid credit agreement which complies with the Consumer Credit Act 1974 and subsequent Regulations made under the Act has been produced, it is averred that no valid default notice has been served upon the defendant and therefore the Claimant is precluded from taking this action. The Claimant is put to Strict Proof that a Default Notice, valid in all respects according to the Consumer Credit Act was sent and particularly that the correct minimum period of 14 days for remedy was allowed for within any such notice and that any date before which any remedy must be made was correctly calculated from the actual date of posting and allowing for the service level offered by the postal service used by the Claimant.

 

12) In view of the matters pleaded, I respectfully request the court give consideration to striking out the Claimants’ case pursuant to part 3.4.

 

13) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending.

 

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings: or

 

© That there has been a failure to comply with a rule, practice direction or court order.

 

13) If the court considers such action inappropriate, it is requested that the court order the claimant to produce the following documents at a hearing:

 

a) The original executed credit agreement, which must fully comply with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983.

 

b) Proof of the time of mailing, delivery service, and that the delivery service used is 'equivalent to First Class post' of any default notice sent by the Claimant in respect of the account.

 

c) 'The original signed, executed agreement must be held for 5 years following the closure of an account under The Money Laundering Regulations 2007 & there should be no reason why the Claimant should not produce an original at the hearing'

 

Without the production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice the Defendant’s rights to a fair trial.

 

 

Statement of Truth

 

I, Chipmeister, believe the above statement to be true and factual.

 

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

 

Date..................... ......................... .................

 

I have annotated in red where I think you should make some changes - I am sure others will comment too.

Edited by indebtandharrased
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Morning all,

 

I have done some further research on my "agreements" and have noticed that although they are headed Credit Agreement under CC 1974 (which of course is wrong already, it should be Credit Card Agreement), I have ticked and initialled next to a box which clearly states "I understand that this is a Credit Card Application".

 

Presumably then it is an application form and not a Credit Agreement (or indeed a Credit Card Agreement)?? This I think should be mentioned in my defence!

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Quite right. This from my own defence - the claimant subsequently discontinued.

 

In addition the term “Credit Agreement” is incorrect. This application form should actually be for a “Credit Card Agreement” which is a completely different form of credit with separate rules governing the exact layout and wording of terms.

The Consumer Credit (Agreements) Regulations 1983 state:

SCHEDULE 1

INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN MODIFYING AGREEMENTS

Regulation 2(1)

TYPE OF AGREEMENT INFORMATION

Nature of agreement

All types

(1) Subject to paragraph (2) below, a heading in one of the following forms of words—

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974"

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--"Credit Agreement regulated by the Consumer Credit Act 1974". The defendant would therefore argue that the agreement type has clearly been mis-stated as Credit Card Agreement is clearly applicable for running-credit agreements.

As the claimant is technically relying on an inaccurate credit agreement heading the claimant must also accept that a “Credit Agreement” must contain the following terminology to conform with form and content regulation. Once again with reference to The Consumer Credit (Agreements) Regulations 1983 a “Credit Agreement” must amongst other details and without exception contain:

The nature of the agreement (Covered above)

The term “Credit Limit” and not as this application shows, “Credit Value”.

The Total Amount Payable

The Total Charge for Credit

Clearly a fixed sum Credit Agreement is very different to running-account credit. If the claimant insists they have a valid “Credit Agreement” these terms must be included. These terms are not to be found anywhere on the pre-contractual application rendering the claim irredeemedly unenforceable.

 

 

You can also question the application form aspect of 'an agreement' that is headed as an application form. It is important that the form is entitled as an application, preferably more prominent than the credit agreement bit. Use this:

 

 

As the application was pre-contractual it was signed blind. The Consumer Credit Act 1974 states:

(59): Agreement to enter future agreement void

An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations.

 

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Brilliant, thanks for all that! Most importantly, I understand what you are telling me and will amend my defence accordingly. Presumably, within my defence I should quote The Consumer Credit (Agreements) Regulations 1983 so that the DJ can understand where I am coming from? That said, I don't want to be seen as trying to blind the DJ with science, and I certainly don't want to loose his attention at any point during my defence. What do you advise in this regard please?

 

Thinking about it, both of these applications were made at football grounds, and as I recall, the forms I completed were on a clip board. At no point do I remember removing the form from the clipboard and looking at the back, or indeed being prompted to do so! Should this also go into my defence?

 

At this stage I can't move forward with a full defence in respect of the defective DNs as I do not have sufficent information from the Claimant in respect of proof of posting. Plus, I may well have all I need from the "agreements"!

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Thinking about it, both of these applications were made at football grounds, and as I recall, the forms I completed were on a clip board. At no point do I remember removing the form from the clipboard and looking at the back, or indeed being prompted to do so! Should this also go into my defence?

 

Yes :-) it's pretty important if the Prescribed Terms were on the back, but are not referenced from teh front or as you say you were not given the opportunity to read them properly given that you were dealing with someone on commision trying to sign up as many peeps as poss in the shortest possible time.

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ok. got to go out- however assuming this is a defence to a SJ application it is not sufficient to show that there is a reasonable prospect of defending the claim

 

if it is the defence for a main trial- again as with the above and with the greatest of respect- it seems to be "waffling" and will confuse/bore the judge.

 

you need (IMO) to be concentrating on the facts of the matter and need to cut out/Abbreviate a lot of the "who did and did not do what, where and when" as the judge really wont be interested

 

you need to show what is wrong with agreements. DN's NOA's etc and not waste time on them not responding in time

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Just read through your draft defence above. Check out 7a as you refer to Defendants solicitors think you mean Claimants sols. Merits of argument aside, if it were me I would be using more denials in body of defence (ie I deny that ..... ) as I believe that it may go against you in some circumstances if you do not clearly plead that you deny a particular point.

R

ps just noticed DD reply above and see this is a SJ app.

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I trust you have kept the envelope that the SAR arrived in, along with the post office tape. You should make an official complaint to the Information Commissioner in respect of a poorly packaged SAR.

 

For your own peace of mind, I would take everything that came in the SAR to your local post office and have them weigh it on their scales and advise the cost of postage. Then check that it tallies with the cost of the postage on the packing.

 

If this was sent SD then there should be a weight on the receipt that was given to the sender. At least you will be able to establish if any contents are missing.

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Hello all,

 

Firstly, thanks to all the people who have looked in. I can confirm that this is NOT a response to an SJ, it is a response to the Claimant's Reply to Defence, and also my defence based on the documentation the Claimaint finally got round to sending me.

 

RWRM, thanks for the heads up on 7a - will make that amendment, and will also add denials as I have to amend the defence to state all the issues that make the agreements they have sent me incorrect.

 

DD - appreciate you looking in. I was thinking that as part of my defence I needed to respond to the points raised in the Claimant's reponse? Perhaps this isn't the case. Facts on dodgy agreements only then! As mentioned earlier, I can't go too far on the defective DN as I need to put the Claimant to strict proof as to when the DN was posted - that printout they provided doesn't prove anything!

 

CB - hello! I have most certainly kept the envelope that the documents came in, but it was an envelope from Optima not from MBNA containing documents I asked for in my SAR request. Good idea re the postage - I will do that.

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Interesting times! I have just spoken to the Court, who have confirmed that my application has gone to the Judge and it is therefore too late to make any amendments, even though during the course of my call I confirmed that the requests detailed in the application had been largely (but not completely) fulfilled. This did not come as a great surprise to me as the application was received by the Court on 29 July 2010.

 

I asked whether the Court had received a copy of Optima's Reply to Defence, and if so, can the Court please confirm whether I do have to file a full defence by 4pm on Monday 16 August 2010 as Optima have stated? I was told that I can file a full defence anytime I like, as long as it is clearly labelled. However, my case at the Court has now apparently ground to a halt until my application is dealt with and the Judge has given directions.

 

On post 209 of this thread are all the documents Optima sent to me, but here is a quote from their covering letter:

 

"In light of the fact that we have now provided you with all of the documentation in order for you to file an amended Defence, we require that you file a fully amended pleaded Defence by 4pm on 16 August 2010.

 

Should we not receive your amended Defence by this date, we hereby put you on notice that we will be making an application to the Court to strike out your Defence. Further, we hereby put you on notice that we will be seeking our clients' costs incurred to date, which will of course increase your liability to our client."

 

As FG pointed out in a previous post, it is not for Optima to set legal deadlines, it is for the Court to do this. The Court could not confirm receipt of Optima's Reply to Defence, and yet surely, if Optima sent it directly to me they MUST have sent it to the Court??

 

Do I file my defence before 4pm on Monday 16 August 2010 (I have no problem in doing this) or do I ignore their deadline and risk the full wrath of Optima's application to strike out my embarrassed defence?

 

I'm a bit confused right now!

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OK folks, I have totally revised my defence. I thought I may as well go for it and put in as much detail as possible. Could CAGgers please review and basically advise what I need to keep and what can go - I need to keep the Judge's attention as I need to keep my home!!

 

This is, in fact, only the first detailed part of my defence which deals with the Default Notices and why I think they are invalid. I feel I have to move forward with the DN defence as, aside from not having the proof of postage from the Claimant, I have all I'm going to get for now.

 

The second part of my defence (still under construction and to be posted up later) will deal with the purported agreements and why I disagree.

 

So, for now, Part 1 of Chipmeister's amended defence. (not a response to an SJ). Thanks to you all in anticipation.

 

Defence prepared responding to Claimant’s Reply to Defence (“Claimant’s Reply”) dated 2 August 2010

 

1) I, Chipmeister, am the defendant in this action and make the following statement as my full defence to the claim made by MBNA Europe Bank Limited.

 

2) Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.

 

3) The Court will be aware of the Application made by the Defendant on 29 July 2010 (annexed at Chipmeister 1.)

 

3a) The Defendant received a package of documents from the Claimant’s solicitor on 5 August 2010 containing the Reply to Defence, copies of the purported agreements, copies of terms and conditions and copies of default notices. The package also contained some copy statements as asked for in the CPR 31.14 request, although many of the copy statements requested were missing, thus the CPR 31.14 request has only been dealt with in part.

 

4) The Claimant’s Reply states that the default notices were sent “using the equivalent of first class post”.

 

4a) Practice Direction – Service of Documents – First and Second Class Mail

 

1) Under Section 7 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.

 

8 March 1985

J R Bickford Smith, Senior Master

Queen’s Bench Division

 

Until the Claimant can provide irrefutable proof that the default notices were sent by First Class mail, service by Second Class mail must be assumed.

 

4b) Both the Default Notices issued by the Claimant were dated 9 April 2010, which was a Friday. As it has been assumed that the Default Notices were not sent by First Class post it should therefore be accepted as having been delivered, after 4 working days, on 15 April 2010, and the Defendant accepts that the Default Notices were probably received on that date.

 

4c) To comply with the Regulations and to be valid as to its form, a Default Notice must state the actual date by which the breach is to be remedied, as stated in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) Schedule 2(3):

1) A specification of:

 

a. The provision of the agreement alleged to have been breached; and

b. The nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

c. If the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

d. If the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

“c” above clearly states “not less than 14 days”. The Claimant is therefore at liberty to increase the time available for remedy but not to reduce the time by even one day. In the Consumer Credit Act 2006, Parliament took the specific measure in S14(1) of increasing the minimum time that must be made available to the consumer for remedy of breach from the 7 days given in S88 of the 1974 Act to 14 days; had Parliament thought that 13 days, 12 days or ant lesser period was satisfactory then the Defendant is confident that such a minimum period would have been included in the amendment to the Act, rather than 14 days which was included in the amendment.

 

Therefore this minimum time period is prescribed in an Act of Parliament, not rules of the Court, and the Defendant respectfully submits that what is prescribed in the Act is in no need of interpretation and no Court should take it upon itself to abridge, vary or dismiss as of minor importance, the will of Parliament.

 

4d) The Default Notices sent by the Claimant are dated Friday 9 April 2010. To allow service in line with the statutory requirements outlined above, four working days were required to allow for a second class postal service (excluding Saturday and Sunday which are not considered working days). Thus, the remedy date should be 14 calendar days from Thursday 15 April 2010, namely Thursday 29 April 2010 and the “BEFORE” date, as printed on the Default Notices, one day later, being Friday 30 April 2010. The Default Notices (annexed as Chipmeister 2 and Chipmeister 3) specifies the date “BEFORE” which the Defaults had to be remedied as Monday 26 April 2010, which is four days short of the minimum period prescribed by statute.

 

Even if the Default Notices had been sent by a service equivalent to First Class post, as the Claimant states, the Default Notices would still be defective as the date “BEFORE” which the breach could be remedied contained in the Default Notices should have been Wednesday 28 April 2010 to allow for service after 2 working days and the minimum of 14 days accorded by Statute for remedy plus one day more to arrive at the “BEFORE” date.

 

4e) The prescribed format for a Default Notice document is laid down in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment Regulations: the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 2004 (SI2004/3237); in these regulations it clearly states that a date of remedy must be given and it must be at least 14 days from the date of service. The Act also sets out via Section 88(1) that “the Default Notice must be in the prescribed form”. The mandatory word “must” in both Section 88(1) of The Act and in the above Regulations makes it clear that no variation is acceptable; therefore no variation can be dispensed with as of minor importance.

 

4f) An internet search found many examples, all in the public domain, of Default Notices being sent by MBNA allegedly using second class post or mailing services for their transmission, (being UK Mail) the general consensus being that MBNA generally use this type of service for sending such documentation.

4g) The Defendant denies that the Default Notices were sent by way of First Class mail and puts the Claimant is put to strict proof that the Default Notices were sent as stated in the Claimant’s Reply.

 

4f) Notwithstanding the points raise above, UK Mail is not a Royal Mail First Class service. UK Mail collects mail from the customer and then sends it to one of their processing centres where it is coded for the postcode of delivery. It is then transported to their depot nearest to a Royal Mail centre that deals with that postcode’s delivery offices. The UK Mail User Guide states

“the services provide customers with a two-day delivery of pre-sorted mail and track-tracing of mail bags to the point of hand over to Royal Mail for final sortation and delivery.”

 

Therefore, the mail is in the hands of UK Mail for at least two days before reaching Royal Mail, thus it cannot by definition be a First Class service, only a second class service.

 

The UK Mail User Guide also makes it abundantly clear that “UK Mail shall not be liable to the Customer or to any other person for failure to deliver within this timescale” and “the Customer acknowledges that UK Mail is required to use Royal Mail for the final delivery, and accordingly is not able to offer any assurances as to the actual delivery day of any mailing item.

 

4g) The Claimant is seeking to rely in the information contained in the Default Notices as their legal entitlement to terminate the agreements and pursue these claims. However, the Default Notice is defective in that it does not permit sufficient time for the default to be remedied as prescribed by S88 of the Consumer Credit Act 1974 and the associated regulations – Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

4h) At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (“the Act”) the creditor must deliver a default notice which complies with all of the requirements of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to claim any benefit they may have enjoyed under S87 and subsequently terminate the agreement and make any demand for early payment. I will refer to the judgement of Woodchester Lease Management Services Limited v Swain and Co NLD 14 July 1998 that confirms this.

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It's a defence chips, not a WS - try to keep it short & sweet eg. you don't need to elaborate too much as to why the DN falls foul of the regs etc, just refer to the statute etc. Let them work it out.

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Interesting times! I have just spoken to the Court, who have confirmed that my application has gone to the Judge and it is therefore too late to make any amendments, even though during the course of my call I confirmed that the requests detailed in the application had been largely (but not completely) fulfilled. This did not come as a great surprise to me as the application was received by the Court on 29 July 2010.

 

I asked whether the Court had received a copy of Optima's Reply to Defence, and if so, can the Court please confirm whether I do have to file a full defence by 4pm on Monday 16 August 2010 as Optima have stated? I was told that I can file a full defence anytime I like, as long as it is clearly labelled. However, my case at the Court has now apparently ground to a halt until my application is dealt with and the Judge has given directions.

 

On post 209 of this thread are all the documents Optima sent to me, but here is a quote from their covering letter:

 

"In light of the fact that we have now provided you with all of the documentation in order for you to file an amended Defence, we require that you file a fully amended pleaded Defence by 4pm on 16 August 2010.

 

Should we not receive your amended Defence by this date, we hereby put you on notice that we will be making an application to the Court to strike out your Defence. Further, we hereby put you on notice that we will be seeking our clients' costs incurred to date, which will of course increase your liability to our client."

 

As FG pointed out in a previous post, it is not for Optima to set legal deadlines, it is for the Court to do this. The Court could not confirm receipt of Optima's Reply to Defence, and yet surely, if Optima sent it directly to me they MUST have sent it to the Court??

 

Do I file my defence before 4pm on Monday 16 August 2010 (I have no problem in doing this) or do I ignore their deadline and risk the full wrath of Optima's application to strike out my embarrassed defence?

 

I'm a bit confused right now!

 

Mmmm,

 

What Optima like to do is engage you in back and forth communications, gradually weeding out your full defence. Be careful.

 

They cannot tell you to file a full defence, only the court can.

 

If you have all of the documents requested by you under CPR, then you are in a possition to file a full defence. If not, tell them so. Be careful about debating each point they raise in response to your defence, pre hearing.

 

You can use arguments to disuade them from proceeding, without showing all of your hand.

 

Vint

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Mmmm,

 

What Optima like to do is engage you in back and forth communications, gradually weeding out your full defence. Be careful.

 

They cannot tell you to file a full defence, only the court can.

 

If you have all of the documents requested by you under CPR, then you are in a possition to file a full defence. If not, tell them so. Be careful about debating each point they raise in response to your defence, pre hearing.

 

You can use arguments to disuade them from proceeding, without showing all of your hand.

 

Vint

 

OK - as I thought! I believe I am in a position to file a full defence. This, when ready, will be sent to the Court, not directly to them!

 

What do you think would happen if Optima tried to get my embarrassed defence struck out?? Would they be likely to succeed?

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So really I'm saving all the detail for my witness statement - at this stage my defence is merely pointing out what I intend the defend further in court? I'm getting a bit confused, I thought I would have had to put as much info into the defence as possible, but now I'm wondering whether to play my cards a little closer to my chest?? Any further advice gratefully received!

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