Varde/Brachers claimform - MBNA card

[car2403]

OK cool. I will be reading plenty this weekend I feel! As a complete legal/court virgin and not the brightest person on earth it does all get very confusing when one person says one thing and then someone else says something completely different!! From what I've read over the past few days the unenforceable CCA and UR defences are pretty much ignored by judges now?

 

Yup, this is why lawyers earn so much money!

 

That's a reasonable assumption, given recent case law. It might be worth taking a view on whether it's easier to settle this. But we can argue unenforceability and counter claim for the PPI - a Judge will surely be swayed by the fact that they owe you more money than they are claiming from you, so this has a very good chance of success, IMHO.

[Smoothound]

By my calculations MBNA have till the 14th December to make a concrete offer. As usual they are stalling as long as they can plus I'm unsure what time frame is allowed once the offer is made for payment?

 

As an aside is there a recommended solicitors that I could use for my defence as I fear much of this court lark is beyond my comprehension I've read loads this weekend so far and my head is fit to explode!!

[car2403]

the time is only a good thing. Don't rush in to anything - especially not seeking the help of a Solicitor, at this stage - (believe me, you'll find it difficult to find one with sufficient experience to deal with this - there are more knowledgeable people on CAG! Honestly!) you will get to the point where it's all too much for you, and that's where you need some help here.

 

As a starter, have you read the links in my signature? **Nudge, nudge. Wink, wink**

 

If something isn't clear, then post back here.

 

TBH, it depends on what your approach is going to be - if I were in your position, I'd be fighting the unenforceability argument plus the recovery of the PPI amounts with some gusto and using the "I'll accept the PPI wipes out the debt and settle on that basis" as a fallback position. This all depends on how you're feeling about it. You may decide to try to settle on that basis, but all I'm saying is don't rush in to anything at this stage. This is what they want you to do - fold early, from the pressure. You have 24 days in which to make a decision.

 

As a starter for ten, how about you send them a letter (without prejudice save as to costs) and offer your backstop position as a settlement, now? If they ignore it, or respond and reject it, it will only win you favour with the Court later on re: costs. At least this puts the ball back in their court, so to speak. This might put your mind at rest, a little, as well? It's not easy dealing with a Court claim your first time around - I know, because I was in your position and in a mad panic too! I just read loads and became comfortable with the 'game' of Court action. It's not a game, it's very serious, but that's just the way I became used to dealing with it.

 

It's your claim, of course, so only you can decide what you need to do. There's no stigma in getting someone else in (Solicitor, or otherwise) to deal with it, it's just not my chosen method of attack. I always put in more hours on my own claim than any Solicitor would have done. I become an expert in my own claim. Each has it's intriguing elements and each turn on their own facts - this works to your advantage, as you will know more about your own claim than the 'other' side ever will, as they don't work like that.

 

Anyway, deep breaths, come to a decision and see where it takes you. If you need help, ask - the only daft questions are those that you don't ask...

[Basil Fawlty]

Car2043, in your experience does it go down better in court if you are paying something every month, even if you believe the agreement is unenforceable, or does this give them the opportunity to say that ''you're paying, so you must accept the agreement''?

 

BF

[car2403]

Car2043, in your experience does it go down better in court if you are paying something every month, even if you believe the agreement is unenforceable, or does this give them the opportunity to say that ''you're paying, so you must accept the agreement''?

 

BF

 

I'd avoid it as you'll be accused of acknowledging the debt and get the Judge in to all sorts of moral arguments that you ideally want to avoid.

 

It's up to the individual, though, although you'll just have to be very clear that you've paid the debt because it was owed, not because you legally acknowledge it's enforceability. (Although I can't see the difference in those statements, so the Judge might not neither )

[Basil Fawlty]

I'd avoid it as you'll be accused of acknowledging the debt and get the Judge in to all sorts of moral arguments that you ideally want to avoid.

 

It's up to the individual, though, although you'll just have to be very clear that you've paid the debt because it was owed, not because you legally acknowledge it's enforceability. (Although I can't see the difference in those statements, so the Judge might not neither )

 

Thats exactly as I thought, and I havent paid them anything for a long while now, but I seem to remember in one case mentioned on this forum that the judge said that he couldnt understand why the debtor wasnt paying anything (think it might have been the Harrison case). I'm asking this as Varde have an MBNA account of mine and its only a matter of time before I'm in court with it like smoothound I suppose.

 

BF

[Mr-Pieman]

Just to back up Car's points,

I have had several claims issued against me one was for over £5k, to save things getting messy at a latter date I sent the Claimant (not their solicitors by the way as they are generally muppets they don't want you to settle) an offer "without Prejudice save as to costs". My offer asked for removal of certain insurances and the refund of fees. To my surprise they accepted I have a Tomlin order for an amount I can pay back. It will take decades to pay back but what the hell. I requested a 14day grace period should I default on a payment, the Claim was then stayed. It's not the best but I avoided a relatively small amount turning into stupid money.

 

I never supplied any I&E only a judge can request that my sending a "Offer" it basically pulls the rug from under them should they refuse and try to do you for inflated costs at a latter date. They cannot use your offer against you as acceptance of the debt either should they try.

 

The ball will be in their court so to speak.

 

PM

[car2403]

Thats exactly as I thought, and I havent paid them anything for a long while now, but I seem to remember in one case mentioned on this forum that the judge said that he couldnt understand why the debtor wasnt paying anything (think it might have been the Harrison case). I'm asking this as Varde have an MBNA account of mine and its only a matter of time before I'm in court with it like smoothound I suppose.

 

BF

 

Unfortunately, Judges, especially in the County Court, are so used to dealing with debt claims that they become short sighted and ignore the protection that the CCA gives Consumers.

 

If more lower level Judges understood the law, they wouldn't need to get themselves in these convoluted situations and we'd see more consistency in the small claims track.

[Mr-Pieman]

The interesting thing about Varde is they have a Consumer credit license but only a class A one. They CANNOT chase the debt have a look at the OFT sheet on licenses. Basically they have to get "Organisations" like EC to chase it.

 

However a class A license only lets you do the following :-

 

Category A

Consumer credit business

 

If, as part of your business, you lend money, offer credit or give people time to pay for goods and services, you are likely to need to apply for Category A.

Consumer credit business covers a wide range of transactions, such as:

• hire purchase

• issuing credit cards

• budget accounts

• instalment sales

• cash loans

• subscription accounts

• trading checks

• overdrafts

• personal loans.

 

They claim you owe them a debt so in my mind they need at the very least a Class D too.

 

Category D

Debt adjusting

 

If you help people with their debt problems by taking over their debts or negotiating on their behalf, you are likely to need to apply for Category D (where the debts arise under consumer credit or hire agreements).

Debt adjusting1 consists of:

• negotiating terms with the creditor on behalf of an individual

for the discharge of a debt, or

• taking over, in return for payments by the debtor, his obligation to discharge a debt, or

• any similar activity concerned with the payment of a debt.

Since 31 October 2004, it has not generally been debt adjusting

to carry on any of the above activities solely for debts due under mortgages regulated by the FSA. Such activity is regulated by the FSA (for further details see ‘Where to go for more information’).

Your business is classified as Category D if you intend to provide debt adjusting services with no limitation. This would allow you

to provide such services on a commercial basis (that means that either you or an associate* will charge a fee or otherwise receive

remuneration in connection with the provision of such services and/or in the course of carrying on any consumer credit or ancillary credit business and do not operate, for example, solely as a non-commercial charitable service). You are likely to require this category if you or any of your associates provide any consumer credit or ancillary credit services on a commercial basis.

*’associate’ has the meaning given by section 184 of the Act.

 

 

They need a class G not F sorry my mistake

 

Category G

Debt administration

 

From October 2008, if you want to carry out activities (other

than debt collection) relating to consumer credit or consumer

hire agreements on behalf of another person who is the creditor, including someone to whom the agreement has been assigned

(in the case of consumer credit), or owner (in the case of consumer hire) you will need to apply for Category G.

Please note:

• You will not need this category if you are acting in your own interest, for example administering loans made by you that

have not been assigned by a third party. The loans HAVE been assigned by a third party.

• You can exercise and enforce the rights of the creditor or

owner of the consumer credit or consumer hire agreement under this category, as long as you are not doing anything

which may amount to debt collecting. This means that in

order to take steps to enforce agreements and secure

payments on behalf of another person you will need Category F, debt collecting.

 

 

I have recently emailed the OFT to find out what license a company such as them should have. I think they are committing an offence.

 

PM

Edited November 20, 2011 by Mr-Pieman

[car2403]

I think you're right to point this out, Mr P, but it doesn't really help the OP - especially as the OFT won't intervene in individual cases.

 

Did you contact the OFT, SH? Even if just to stick the boot in!

[Smoothound]

I think you're right to point this out, Mr P, but it doesn't really help the OP - especially as the OFT won't intervene in individual cases.

 

Did you contact the OFT, SH? Even if just to stick the boot in!

 

I am drafting a letter currently

 

Thanks for all the good advice this weekend guys! I'm a much happier bunny now

[car2403]

I am drafting a letter currently

 

Thanks for all the good advice this weekend guys! I'm a much happier bunny now

 

Good stuff!

 

Now, it's surely your turn to get the bourbon creams in?! Tesco value will do, I'm not choosey!

[Smoothound]

Good stuff!

 

Now, it's surely your turn to get the bourbon creams in?! Tesco value will do, I'm not choosey!

 

Sorted LOL

[Smoothound]

Got the following back from Brachers today:-

 

[car2403]

 

Tsk, tsk.

 

How can there be a claim with no documentation?

 

I'd be applying for extra time to defend from the Court based on a failure to supply information related to the claim without which you can't defend.

 

Or, you defend now on the basis of not having an enforceable agreement with a counterclaim for the PPI they owe you (which they can't enforce against you)

 

BTW, thinking about that, where is the PPI outlined in the agreement? don't recall seeing that.

[Neillfc]

Car2043 can you tell me whether it is worth me sending a CPR request to 1st credit, who are taking me to court over a credit card debt for £2294.31 or will they claim it's not relevant as the claim is going to be dealt with by small claims court

[AndyOrch]

Duty of disclosure continues during proceedings

 

31.11

 

(1) Any duty of disclosure continues until the proceedings are concluded.

 

Disclosure before proceedings start

 

31.16

 

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

 

 

Documents referred to in statements of case etc.

 

31.14

 

(1) A party may inspect a document mentioned in –

(a) a statement of case;

 

 

Consequence of failure to disclose documents or permit inspection

 

31.21

 

A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

 

 

Cant seem to find anything in the CPR were it states Disclosure of Documentation only follows the filing of a defence.Must be in Brachers own CPR version.

CPR requests applies to all claims until its allocated.

 

Regards

 

Andy

[Smoothound]

So basically I should write to the court to ask for an extension of time to make my defence due to current non disclosure of requested documents attaching Brachers letter as proof and also write to Brachers and gently remind them I cannot make a defence if I do not have sight of the documents they are using to make my claim plus also point out that they are making up their own version of the CPR?

 

 

On a slightly different tack as I don't live near the Brighton Court when would be the appropriate time to ask for it to be moved more local to me?

[AndyOrch]

So basically I should write to the court to ask for an extension of time to make my defence due to current non disclosure of requested documents attaching Brachers letter as proof Not until you have agreed verbally and had written conformation from the Claimant, then attach that to your request to Court requesting extension pursuant to CPR 15.5 and also write to Brachers and gently remind them I cannot make a defence if I do not have sight of the documents they are using to make my claim plus also point out that they are making up their own version of the CPR? No

 

On a slightly different tack as I don't live near the Brighton Court when would be the appropriate time to ask for it to be moved more local to me?

Within your above request

Regards

Andy

 

[car2403]

The options are to either file a defence based on the fact that you can't defend due to non-disclosure (a holding defence) or applying to the Court to enforce your CPR request.

 

Do not phone Brachers. You've said your piece in that letter and they've chosen to ignore it. (and have - delibrately or unintentionally, but difficult to see how a law firm could - misinterpreted CPR)

 

If you do nothing, or do something that doesn't involve contacting the Court by formal application, then they could seek Default Judgment at the appropriate time.

[Smoothound]

OK Thanks guys

 

Personally I think my best form of defence is probably attack by writing to the court and enclosing the letter I sent to Brachers and the reply and pointing out it is impossible for me now to file a defence until I have sight of the documents to build a defence and please could the court ask Brachers to supply?

[AndyOrch]

Hi Smooth

 

Make the application as Car advises re non disclosure either before the extension or after (if agreed).Don't refer to it as " it is impossible for me now to file a defence until I have sight of the documents to build a defence" Most DJs take a dim view of that argument and the Claimants will pounce on it as being an excuse (as implied in your response from Brachers),you need the documents to clarify their claim, procedure and amount being claimed, is lawful valid and accurate.

 

Regards

Andy

[Smoothound]

OK. I can see how my wording could be seen as an excuse rather than a defence!

 

So best plan would be to ask Brachers for a 28 day extension to my allowed time(is there a std letter for this? As you can see above my wording could be better ) and once this has been allowed by Brachers then ask the court to enforce my CPR request saying I need the documents to clarify their claim procedure and amounts are valid and accurate?

[AndyOrch]

Thats it yes, there is no standard letter for extension its simply a request pursuant to CPR 15.5.They have stated they will give you 14 days notice of any any further action, you suggest a 28 day extension to allow time to disclose said documents.This can be done in writing or by verbal (subject to time constraints) just ensure that they confirm in writing their agreement, you then attach that to your request to the Court.

 

Regards

 

Andy

[Mr-Pieman]

Hi Smooth,

I believe the Claimants representative is talking rubbish. They are correct the documents don't have to be attached to the claim form as it was issued electronically. But and it's a big one Practise direction 7.3 does not override CPR 31.14 in fact CPR 31.14 is the way you do ask for documents. As Andy has said their is nothing about receiving documents after a defence is filed.

 

I would imagine they are trying to drag it out without sending you anything they will then try for a summary judgement. You have requested documents they have stated that they are going to get them however they have given you no time frame when this will be or even granted you the extension you requested in your letter.

 

I believe you need to request an extension from the Claimant, you then need to inform the court of this don't trust the Claimant to do this its the Defendants responsibility.

 

Agreement extending the period for filing a defence

 

15.5

(1)The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

 

(2)Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

 

 

 

I would also draft up an application under CPR 31.16 ordering that they disclose the documents is this right?

 

Disclosure before proceedings start

 

31.16

(1)This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

 

(2)The application must be supported by evidence.

 

(3)The court may make an order under this rule only where –

 

(a)the respondent is likely to be a party to subsequent proceedings;

 

(b)the applicant is also likely to be a party to those proceedings;

 

©if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

 

(d)disclosure before proceedings have started is desirable in order to –

 

(i)dispose fairly of the anticipated proceedings;

 

(ii)assist the dispute to be resolved without proceedings; or

 

(iii)save costs.

 

(4)An order under this rule must –

 

(a)specify the documents or the classes of documents which the respondent must disclose; and

 

(b)require him, when making disclosure, to specify any of those documents –

 

(i)which are no longer in his control; or

 

(ii)in respect of which he claims a right or duty to withhold inspection.

 

(5)Such an order may –

 

(a)require the respondent to indicate what has happened to any documents which are no longer in his control; and

 

(b)specify the time and place for disclosure and inspection.

 

 

At the end of the day by disclosing the documents early that they must have in their possession it will help expedite the case to an early conclusion which will save costs and the courts time. Without early disclosure you are unable to clarify the claim (thanks andy) and the Claimants cause of action before the court.

 

They are Claiming you owe a debt to a company you have had no prior correspondence with at all or signed any agreement with. You requested clarification. They denied & delayed you getting the clarification.

 

Unfortunately letters to the court do no good, you need applications so they can act.

 

I'm still waiting for my response from the OFT. It should be next week.

 

 

PM