CCJ - defence due - please help!

[Chipmeister]

Your SAR request seems OK to me. CPR 31.14 seems OK as well.

 

Thanks Wycombe. In your opinion, do you think I need to remove the part in bold on the CPR 31.14 - I'm not sure it is relevant in my circumstances but I don't want to remove it and invalidate the request in any way!

 

Thanks also for the CPR 18 template.

[wycombe]

Personally I would not include the bold bit. But wait and see if you get any further opinion before a final print off and mailing.

 

You seem to be on the way now and getting on top of everything which is good. Keep a strict eye on all your deadlines and you should be OK.

 

I'm offline now until later this eevening as I have to go out. If you need urgent help or more experienced opinion then mine you can always click on the little red triangle - the one that says 'report post' when you hover the cursor over it. Then a site member will have a look and make sure all is in order.

[Chipmeister]

Wycombe, you're a star. Thanks for all your help so far.

[Chipmeister]

Morning all,

 

Just bumping this in case others have any comments on the particulars of claim that I've posted and how they could affect my defence?

[citizenB]

Just responding to your S.O.S. Having a quick read of your thread to see where you are.

[citizenB]

Ugh.. I think you should have sent that CPR31.14 a lot sooner, however you werent to know. The chances that you will receive anything back in time for you to put in a fully particularised defence is now zilch. So if you do not have the documents you require then I think you are going to have to put in an embarrassed defence.

 

The request for more time that you highlight in the CPR31.14 is of little help to you as they will not receive this in time for a response.

 

Their original POCs were rubbish, however they have sent you a more detailed POC in the post.. although it still doesnt provide you withthe information you require. seems as though Optima are learning. However attached to the more detailed POC should have been copies of the agreements, default notices and also any other information they intend to rely on, such as how they have arrived at the balance they are requesting.

 

What I do see from the POC that came in the post is that their default notices would appear to have asked for the full amount and not the arrears.

 

Did the Default notices proper ask for arrears or the full amount as shown on the POC ?

 

Did you ever receive from MBNA or Optima a Letter before Action ?

 

Process to go to litigation. Default notice (valid), termination (which they say will happen in the DN anyway so they may not have sent you a separate termination notice, then a Letter advising you that within 7 days they intend to proceed to litigation.

 

Ok, the Default Notices. You didnt keep the envelopes, however MBNA do tend to use 2nd class or UK mail, so unless they can prove that they were sent by 1st class, 2nd class is assumed under the rules.

 

As you rightly point out. Both DNs were dated 9th of April which was a Friday. The earliest you could have received them (minus the weekend ) would have been for 1st class if proved .. Tuesday 13th April or Thursday 15th April. 1st class would have left you short by 1 day and 2nd 3 days short.

 

If you can confirm whether they asked for the full balance or the arrears on the Default notice that would help strengthen your argument.

 

As you have not received a copy of the agreements, you cant say for sure whether the breach they mention in the DN is correct or not. I think I have seen a lot of posts where there isnt a clause 8 for anyone to breach so that could be a bit problematical for MBNA:)

 

You have until 13th July to submit a defence by my calculations. You say the claim was issued on 10 June. + 5 days to receive + 14 days to acknowledge + 14 days to submit. (33 days from date of issue) = 13 July. I think you will need to submit online , by Monday 12th in order to avoid a default judgment.

 

If you havent already sent the CPR31.14 you can also request a full set of statements from inception of account. You will need to receive these in order to see if there are any charges that could be reclaimed. You have a copy of the Default Notices so there is little point in requesting those.

 

If you can answer the questions above that would be helpful.

 

Then I guess we sort out an embarrassed defence for you.

[Chipmeister]

Hi, thanks so much for responding! Answers in red to your questions below.

 

Ugh.. I think you should have sent that CPR31.14 a lot sooner, however you werent to know. The chances that you will receive anything back in time for you to put in a fully particularised defence is now zilch. So if you do not have the documents you require then I think you are going to have to put in an embarrassed defence.

 

The request for more time that you highlight in the CPR31.14 is of little help to you as they will not receive this in time for a response.

 

OK - I will remove the parts in bold, take out the request for the DN (as I already have a copy, and Optima provided another copy in response to my request for a copy of the termination agreement) and get the CPR31.14 out today by recorded delivery.

 

Their original POCs were rubbish, however they have sent you a more detailed POC in the post.. although it still doesnt provide you withthe information you require. seems as though Optima are learning. However attached to the more detailed POC should have been copies of the agreements, default notices and also any other information they intend to rely on, such as how they have arrived at the balance they are requesting.

 

There were no copies of anything attached in the particulars of claim letter that they sent me or any such info as outlined in your post.

 

What I do see from the POC that came in the post is that their default notices would appear to have asked for the full amount and not the arrears.

 

Did the Default notices proper ask for arrears or the full amount as shown on the POC ?

 

The default notices mention both the arrears and the full amount - this is something that has bothered me for a while now as I am not certain whether the DNs are requesting arrears or full amount. The DNs are posted as an attachment in post 12 of this thread, if this will help?

 

Did you ever receive from MBNA or Optima a Letter before Action ?

 

Process to go to litigation. Default notice (valid), termination (which they say will happen in the DN anyway so they may not have sent you a separate termination notice, then a Letter advising you that within 7 days they intend to proceed to litigation.

 

Termination apparently happened in the DN so no separate termination letter received. I had a letter from Optima (but I don't have it with me to scan - it's at home. DOH!) saying that they would commence legal action but I don't think they actually gave me a timescale under which legal action would be commenced, as my letter asking them not to instigate legal proceedings until I had received information I had requesed crossed with their letter confirming that they had already begun lititigation.

On the particulars of claim sent by Optima someone has actually signed to say that the correct pre-action procedure has been taken (a copy of this is on this thread) so if they haven't presumably Optima and their employee could be in trouble?

 

Ok, the Default Notices. You didnt keep the envelopes, however MBNA do tend to use 2nd class or UK mail, so unless they can prove that they were sent by 1st class, 2nd class is assumed under the rules.

 

As you rightly point out. Both DNs were dated 9th of April which was a Friday. The earliest you could have received them (minus the weekend ) would have been for 1st class if proved .. Tuesday 13th April or Thursday 15th April. 1st class would have left you short by 1 day and 2nd 3 days short.

 

If you can confirm whether they asked for the full balance or the arrears on the Default notice that would help strengthen your argument.

 

The DNs mention both arrears and full amounts - if you could review them and confirm exactly which amount they are asking for in the DN I'd be grateful.

 

As you have not received a copy of the agreements, you cant say for sure whether the breach they mention in the DN is correct or not. I think I have seen a lot of posts where there isnt a clause 8 for anyone to breach so that could be a bit problematical for MBNA:)

 

Yes, I have seen a few of those!

 

You have until 13th July to submit a defence by my calculations. You say the claim was issued on 10 June. + 5 days to receive + 14 days to acknowledge + 14 days to submit. (33 days from date of issue) = 13 July. I think you will need to submit online , by Monday 12th in order to avoid a default judgment.

 

I'm keen to get my defence filed as soon as I can, but appreciate that folk are very busy here. The last thing I want is a default judgement.

 

If you havent already sent the CPR31.14 you can also request a full set of statements from inception of account. You will need to receive these in order to see if there are any charges that could be reclaimed.

 

OK, will add that request to the CPR 31.14.

You have a copy of the Default Notices so there is little point in requesting those.

 

Will remove that part from the CPR 31.14!

 

If you can answer the questions above that would be helpful.

 

I hope I've been clear on the points - please let me know if you need any further info. The amounts requested in the DN is what has thrown me completely!

 

Then I guess we sort out an embarrassed defence for you.

 

That would be fab - thank you so much for all your help so far.

[Chipmeister]

If you havent already sent the CPR31.14 you can also request a full set of statements from inception of account. You will need to receive these in order to see if there are any charges that could be reclaimed. You have a copy of the Default Notices so there is little point in requesting those.

 

Having reviewed the various letters I have ready to send out, I note that I have requested a full set of statements from inception of account in CPR 18, due to be sent to Optima by recorded delivery today. Do I now not need to mention it in the CPR31.14?

[wycombe]

CM - Excellent input from CitizenB

 

I am not going to be much use today as I need to spend some time on my WS in between a hospital visit and a trip to see the powers that be in my local unemployment office!

 

But I will look in this evening and see how you are getting on.

[Chipmeister]

Wycombe, to know I have support and help is a great thing

 

Best of luck with your missions for the day!

 

CM

[citizenB]

RIghto, what they actually say on the DN is:

 

In order to remedy this breach we must receive payment of £ XX.XX amount by 26th April 2010.

 

Your account balance is : £ XXX.XX

 

So if the figure they ask for in the first sentence is arrears and not the full balance then that is ok. If they are asking for the figure from the 2nd sentence then that is wrong.

 

Aha, so even though they said "pursuant to the CPR 7.5.2" they did not provide information that they were going to rely on

 

Now strangely enough there is NO 7.5 (2) but there is a a 7.3 (2)

 

7.3

Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

CPR 7.5 is as follows :

 

7.5

Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

 

 

 

Preaction Protocols

Practice Directions 16

7.1 (2)

 

. Exchanging Information before starting proceedings

7.1

 

Before starting proceedings –

(1) the claimant should set out the details of the matter in writing by sending a letter before claim to the defendant. This letter before claim is not the start of proceedings; and

 

 

(2) the defendant should give a full written response within a reasonable

 

So IMHO, they havent follower preaction protocol

 

I have left a message on Wycombe's thread asking others to come and visit you..

 

See what response you have had by this evening.. then we can work on something for you tomorrow.

 

An embarrassed defence should be precisely that.. embarrassed so at this stage you wont be going in to any details.. just politely pointing out that without information, you are unable to submit a defence at this stage and that in the event the information requested is provided to you, then you reserve the right to answer more fully.

[citizenB]

Having reviewed the various letters I have ready to send out, I note that I have requested a full set of statements from inception of account in CPR 18, due to be sent to Optima by recorded delivery today. Do I now not need to mention it in the CPR31.14?

 

Sorry I missed this earlier. Yes, I would leave the request in the CPR31.14 That way they cant deny that you requested them

[Chipmeister]

Answers below in red!

 

RIghto, what they actually say on the DN is:

 

In order to remedy this breach we must receive payment of £ XX.XX amount by 26th April 2010.

 

Your account balance is : £ XXX.XX

 

So if the figure they ask for in the first sentence is arrears and not the full balance then that is ok. If they are asking for the figure from the 2nd sentence then that is wrong.

 

In order to remedy this breach we must receive payment of £ ARREARS FIGURE amount by 26th April 2010. Your account balance is : £FULL BALANCE. So this all seems to be in order and presumably this means there is no unlawful recission in my case?

 

Aha, so even though they said "pursuant to the CPR 7.5.2" they did not provide information that they were going to rely on

 

Nope!

 

Now strangely enough there is NO 7.5 (2) but there is a a 7.3 (2)

 

7.3

Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

 

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

CPR 7.5 is as follows :

 

7.5

Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

 

That certainly isn't relevant - these were both credit card agreements!

 

 

 

Preaction Protocols

Practice Directions 16

7.1 (2)

 

. Exchanging Information before starting proceedings

7.1

 

Before starting proceedings –

(1) the claimant should set out the details of the matter in writing by sending a letter before claim to the defendant. This letter before claim is not the start of proceedings; and

 

(2) the defendant should give a full written response within a reasonable

 

So IMHO, they havent follower preaction protocol

 

OK, good to know. Unfortuantely I won't be able to post the letter from Optima up here until tomorrow morning but from memory I don't think this letter could be classified as a letter before claim.

 

I have left a message on Wycombe's thread asking others to come and visit you..

 

Bless you!

On the subject of Wycombe's thread, I read through it last night and it mentions that his card agreement was signed in a petrol station. I know for certain that I signed up for one of the credit cards outside a football stadium and got a free scarf for doing so! To be honest, I signed up purely for the funky scarf - I didn't expect to get the card as I already had a credit card with MBNA, but MBNA approved this second card. Bloody expensive scarf eh?!

 

See what response you have had by this evening.. then we can work on something for you tomorrow.

 

Many thanks, much appreciated.

 

An embarrassed defence should be precisely that.. embarrassed so at this stage you wont be going in to any details.. just politely pointing out that without information, you are unable to submit a defence at this stage and that in the event the information requested is provided to you, then you reserve the right to answer more fully.

OK!

So, action for me for today is: CPR 31.14 and CPR 18 requests to be sent to Optima, both request statements from inception of the accounts and SAR request to be sent to MBNA with £10 postal order.

[citizenB]

So, action for me for today is: CPR 31.14 and CPR 18 requests to be sent to Optima, both request statements from inception of the accounts and Subject access request request to be sent to MBNA with £10 postal order.

Yep

 

Yes, it most certainly was an expensive scarf..

 

 

[Chipmeister]

 

Yep

 

 

Right, all done, got my proofs of postage and recorded delivery slips for all 3 letters. I was most impressed with the size of the first class stamps the Post Office put on the envelopes - no proof of postage issues with those!

 

So, now to dates. I will be tracking my 3 letters and, assuming they are delivered tomorrow (being Friday 9 July) and Saturday 10 and Sunday 11 are included in the 7, 14 and 40 day requests, am I correct in thinking that the deadline dates to receive information will be as follows:

 

CPR 31.14 to Optima Legal - 7 days from receipt - due date Friday 16 July

CPR 18 to Optima Legal - 14 days from receipt - due date Friday 23 July

SAR to MBNA - 40 days from receipt - due date Wednesday 18 August

 

Also, Optima Legal defaulted on my S78 request by not responding within the 12 + 2 days, and, on the last day it was possible for them to comply, they responded by returning my cheque for £1 and telling me to request the information directly from MBNA. I had to remind Optima of S175 of the CCA 1974 and the following day (dated Thursday 1 July) I received a letter from Optima saying that they were dealing with my request (the cheque for £1 was banked on Monday 5 July) and that they required a further 21 days to comply with my request from the date of receipt of my letter (which would have been 1 July 2010). I would hope to receive this information from them by Thursday 22 July 2010. Is it worth mentioning in my defence that the one request I made in plenty of time (on 15 June 2010) was not complied with in the correct time scale, and further mentioning that Optima Legal cannot simply set timescales to suit themselves once they have already defaulted on a legal deadline?

[wycombe]

CM - Thanks for your comments on my thread - appreciated!

 

With your defence it is always worthwhile pointing out defects in what the opposition have or have not done.

 

Make sure you yourself remain squeaky clean in this respect and always get everything done and dusted with a bit of time to spare. There is nothing worse then trying to do everything at the last minute - this where mistakes happen and you can fall flat on your face.

 

Great to see you are getting good advice from CitizenB.

[Chipmeister]

Hey Wycombe,

 

Hope all going well for you after your busy day. Am looking to start drafting my defence for submission over the weekend.

[Chipmeister]

Well, here it is, my first stab at an embarrassed defence. I wonder if I waffle on a little too much, and indeed if some of the particulars I have used are applicable to my case. Plus, is the defence too long to file on-line, in which case it may have to be sent recorded delivery to the Court tomorrow to ensure it is received on Monday 12 July!

 

Oh well, here goes. Comments and amendments VERY WELCOME!!

------------------------------------------

Claim Number:

Between

MBNA Europe Bank Limited Claimant

And

Defendant

Defence

 

1. I, ......................... ......................... ........, 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 is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

4. The Claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the Court’s attention to the following matters:

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written contracts referred to; the method the Claimant calculated any outstanding sums due, or any other matters necessary to substantiate the Claimant’s claim.

b) A copy of the purported written contracts that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) The Claimant has brought this action without fair warning in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received.

d) On 15 June 2010 the Defendant submitted a request via first class mail pursuant to S.77-79 of the Consumer Credit Act 1974 (“CCA 1974”) for copies of any Consumer Credit Agreements purported to be the Defendants to the Claimant’s solicitor. The Claimant’s solicitor wrote to the Defendant on 28 June 2010 stating that the Defendant should approach the Claimant directly for this information. The Defendant wrote to the Claimant’s solicitor on 30 June 2010 and referred them to Section 175 of the CCA 1974. 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 1 July 2010) in order to provide the information required. The Claimant has frustrated the Defendant by failing to fulfil the S.77-79 request within the recognised time limits.

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, copies of all statements since inception of the accounts and any other documentation that the Claimant is relying upon in pursuit of this claim. The time limits in respect of these requests have not yet expired.

e) The Claimant is put to strict proof of the date of mailing of any Default Notices that they claim were sent and that their content was valid. To be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such a document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - (2001) GCCR 2255) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - (1996 4 All ER 119).

5). I respectfully ask the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents.

Statement of Truth

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

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

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

[wycombe]

CM - you are now well on the way!!!

 

With your embarassed defence:

 

If your claim was issued through the Northampton C.C. Bulk Centre then the Claimant is allowed to issue the claim without the supporting documents attached. (4 B). They are not supposed to commence action without these docs though hence your CPR requests for the docs they are going to rely on in court.

 

Make sure you did not receive a Letter Before Action. I claimed this in error (due to being in hospital and my wife chucking everything in the bin!!) Not a big deal really as you can submit an amended defence as soon as the opposition provide copies of what they have.

 

Further down the line familiarise yourself with the case law/precedents etc that you are quoting in your support and print off the bits relevant to your case so you can quote/refer directly should the need arise.

[Chipmeister]

Morning Wycombe! Thanks for the support.

 

In respect of whether or not I received a letter for action, I have attached all correspondence between Optima and myself for review by CAGers. I do not think that any of it constitutes a letter before action and that this should be used in my defence, if my understanding is correct.

Optima - is this letter before action.pdf

[Chipmeister]

I found a shortened embarrassed defence on Dizzie's thread. Please could someone advise whether this shortened defence is more appropriate in my circumstances, or am I best to stick with my original draft?

 

Any advice and comments gratefully received!

 

----------------------------------------------------------

 

Claim Number:

Between

MBNA Europe Bank Limited Claimant

And

Defendant

Defence

 

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

2. The Particulars of Claim disclose no cause of action and are self evidently an abuse of process in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

3) Further to the above, the Defendant is unable to plead effectively at all. The Defendant is embarrassed.

Statement of Truth

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

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

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

[wycombe]

Personally I would stick with the original because it is outlining why your defence is embarassed. But before doing anything wait and see if you get any more comments regarding this.

 

You may get a judge like this one:

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-3022616.html

 

So best to cover as much as you can.

[Chipmeister]

Personally I would stick with the original because it is outlining why your defence is embarassed. But before doing anything wait and see if you get any more comments regarding this.

 

You may get a judge like this one:

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-3022616.html

 

So best to cover as much as you can.

 

OMG!!! That is well harsh. Good to know though, and hope terrytibbs100 finds the advice he needs.

 

Thanks for your comments as ever Wycombe - hope all went well for you yesterday.

[wycombe]

CM - You are most unlikely (I hope) to get a judge like that one. But they do exist unfortunately. We as LIP's are extremely vulnerable if we get someone who is prejudiced against us before we even start! One of the reasons to make sure you are totally on the ball and ready for most eventualities.

 

With me I am awaiting the letter before action in my local hospital. I am due for some major abdominal surgery. This is a continuation of what got me into this debt mess originally! Such is life!

[Chipmeister]

CM - You are most unlikely (I hope) to get a judge like that one. But they do exist unfortunately. We as LIP's are extremely vulnerable if we get someone who is prejudiced against us before we even start! One of the reasons to make sure you are totally on the ball and ready for most eventualities.

 

With me I am awaiting the letter before action in my local hospital. I am due for some major abdominal surgery. This is a continuation of what got me into this debt mess originally! Such is life!

 

I live in hope that I am totally on the ball - I have learnt so much in the last week or so. I didn't even know what a CPR or SAR request was, let alone the timescales involved in responding to them!

Oh my goodness, you have been through the mill Still, you seem to have a very optimistic attitude despite it all. You are an example of true courage in the face of adversity!!