MBNA and Optima (Claim form from Northampton )

[Gthereal]

Hi,

After being out of work for 4 months and defaulting on my CC's (MBNA & Capital One) I entered into a payment plan with MBNA. After 6 months of paying them the token amount I was able to start paying them. I was initially given the runaround as they sicked the Optima rottweilers on me to try and intimidate me into paying the full amount. After sending them the stream of requisite letters Optima admitted they didn't own the debt. I sent my budget to MBNA with the required bank details so MBNA could start taking the agreed £190 monthly payments. The money was leaving my account monthly and I thought I was happily paying off my debt.

 

Until now.

 

On Friday I received a County Court Claim Form for Northampton County Court. The claimant is MBNA Europe and the address for sending payments is the Optima address. The amount claimed is the full amount, £12800 and there's solicitors costs and Court Fees on top.

 

Looking back at my last 3 bank statements there has been no payment going to MBNA (I should have checked this). I'll need to do some digging to find out when the last payment was paid to MBNA. I've had the money in the bank and can think of no reason why they couldn't continue to take the monthly payment.

 

There's a response pack with an "Admission" form and a "Defense" form. What should my next steps be?????

[maroondevo52]

Hello and Welcome,

 

I'll move this thread to our Legal Issues Forum, hopefully you'll get some swift help in there.

 

Regards.

 

Scott.

[Gthereal]

Thanks for the move. Hope I can get some advice now. I'll continue reading through the forums but there are some loooong threads on here!

[Gthereal]

So the first thing I need to do is let them know that I'll be defending the whole case. This stops an automatic CCJ?

[maroondevo52]

Bump

[remus]

So the first thing I need to do is let them know that I'll be defending the whole case. This stops an automatic CCJ?[/QUO

 

thanks to 42man on my thread

 

 

OK....in the first instance you need to acknowledge the claim within 14 days of the date on it.....

 

Then I believe you have another 14+3 days to submit a defence....I presume you are going to defend all of this ? right in the first instance send this letter below (by recorded delivery/guaranteed) to the opposing solicitor (or whoever's name is on the claim form) - keep an eye on the timescales, and have a read through the legal successes forums also...

 

In the XXXX county court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION UNDER CPR 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial Breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h. Copies of statements for the entire duration of the credit agreement.

 

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

[Gthereal]

Thanks Remus,

I'll get right on it. Do you think it would be worth sending a letter to MBNA to ask why they stopped taking the money from my account?

 

G

[Gthereal]

Well, I sent off the letter and it's almost 14 days and I've had no response. There's only 2 days left to file a defence. Do I need to file an embarassed defence? How do I do this? Can this be done online at the Moneyclaim website??

 

Thanks

 

G

[remus]

Hi Gthereal, have a look at my thread, post 11 has a link to the short defence. LTSB Court claim - help please http://www.consumeractiongroup.co.uk/forum/showthread.php?158758-LTSB-Court-claim-help-please

[Gthereal]

Remus / anyone,

What do I do if the date that Optima have to send me info is beyond the date that I have to post a defence. I have a tracking number to say my letter was received on the 9th, giving them till the 23rd to respond.

 

I filed my intention to defend on the 2nd / 3rd online giving me till the 19th/20th to defend.

 

Do I just send the simple embarassed defence letter now?

[citizenB]

Oh heck.. did you send that CPR18 off ? I am not actually surprised that you didnt receive a response from them. You should have sent a CPR31.14 request.. please read the following thread...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

 

This will advise the difference between the two requests.

 

Is there any chance you can either scan in the Claim form minus any personal information ? If not, can you type out what it says on the Particular of Claim eg.. what exactly are they saying they are making this claim against you.

 

From the date on the claim form you get + 5 days for service +14 days for acknowledging and if you are intending to defend and have said this when acknowledging, you will receive a further + 14 days in order to submit a defence.

 

So from date of issue you will have a total of 33 days to submit a defence.

 

Which you cant do if you dont have the paperwork you require.

 

It might be in your interests to send off immediately a CPR31.14 request as shown below.

 

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, 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. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

 

You can only request items that are mentioned on the claim form (which is why I would like to know what they say) so please look at the section highlighted in blue carefully and remove those items that arent mentioned.

 

As this is a claim that exceeds £5,000 it will likely be allocated to Fast Track so you need to remove the section highlighted in red.

 

Send this either recorded or special delivery mail.

If you can advise what date you need to get a defence in by, then we will be able to work out what time you have left.

 

Embarrassed defence..

 

Have a read of the following thread and see if this applies to you.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?283443-Embarrased-Defences-and-the-problems-with-them.

 

HTH

[Gthereal]

Gotta love OCR.

Particulars of Claim

1. The Claimant's claim is in respect of a credit agreement regulated by the Consumer Credit Act 1974, made between the Claimant and the Defendant, whereby the Claimant provided the Defendant with a credit card and in return the Defendant agreed to pay at least the minimum monthly payment requested in each statement.

2. The Defendant failed to make the minimum payments, as required, and is therefore in breach of the said agreement.

3. A default notice was served on the Defendant, which expired on 25/03/2010 and the Defendant has failed to comply with the terms therein. A further demand for payment has been made, however the sum due remains outstanding. The Claimant's claim is therefore the principal sum inclusive of accrued interest which as at stands at 12,xxx.xx, plus costs.

4. The Claimant has complied with Sections III and IV of the Practice Direction on Pre-Action Conduct.

The Claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement

signed OPTIMA LEGAL SERVICES LTD

~Claimant'sSolicitor)

[citizenB]

Okey dokey, you can ask for the agreement, the default notice, the final demand, the letter before action (did you receive one ?)

 

You also require a statement of account or statements showing how the balance they claim has been made up in order to assess if it is correct.

 

HTH

[citizenB]

http://www.consumeractiongroup.co.uk/forum/blog.php

 

You may also want to read the_shadow's blog linked above. It looks as though MBNA have been censured by the OFT for poor communication with clients.. you might find something in that , that would be useful.

[Gthereal]

Thanks CitizenB I really appreciate the advice - I've drafted this letter and can post it today. What do I do in the meantime. I presume Optima will not reply to my original so I'm unlikely to get any information until after the 33 days I have to form a defence.

[Gthereal]

Well, I posted the CPR 31.14 letter earlier. I think I need to get my defence in by Christmas eve if it's 33 days from the date they sent out the CC claim.

[citizenB]

I posted this from pt2537 on another thread. I am not sure if at least the first pleading quoted might be of use to you.

 

Embarrassed Defences in my humble opinion do not work, why? . ... read the following thread..

 

http://www.consumeractiongroup.co.uk...lems-with-them.

 

Anyway, why doesn’t an embarrassed Defence work, well, here is my take on it

 

You receive a claim, the claimant refers to a credit agreement in his claim, the claim comes from the Bulk Centre and doesn’t have the agreement attached.

 

So, what do you do, well, the first thing, you seek an extension of time under CPR 15.5. As a party can agree to extend the deadline up to 56 days , yes 56 that’s 28 for the original time frames and a further 28 on top.

 

Why do you need the extension, well its simple, you need to obtain further information and documentation to be able to adequately defend.

 

You should also make a 31.14 request for the documents pleaded in the claim form, and this should be provided within 7 days of receipt. you must not sit on your butt though and must move fast as time is of the essence. You need to remember to file the acknowledgment of service too.

 

So, what if the Claimant fails to agree to the extension of time, well tell them that you are going to apply for an order of the court and costs against them for their unreasonable conduct. You apply on an N244, The reasons for your app will be obvious i would suggest and you should seek an extension of time, disclosure of the documents you need and costs.

 

Don’t forget to write to the court if the other-side agrees your extension, it is a must, if you forget then you could get a default judgment against you and thats just a pain. it is in the CPR so read it, CPR 15.5.

 

I’m not here to hold your hand, you have to do some work yourself, i suggest you read EVERY rule i refer to, cos it’s your ass that’s in the sling here.

 

Ok,

 

So, now you have your documents that are referred to in the Claim, you have 56 days for a defence ( I assume) and you have some points which you aren't sure of, so what do you do? Well if you need more information, then make a part 18request. See my thread on CPR 18.

 

part 18replies must be verified with a statement of truth so can be relied upon in court in evidence and are binding.

 

So, you get all the info, what now

 

Well its Defence time

 

So, none of this I’m embarrassed because no cause of action blah blah,

 

Why not say the following

 

 

 

The Defendant takes issue with the Claimants pleadings. The Claim is a Bulk Centre claim, however, the rules on pleading apply even to the Bulk Centre and furthermore the Bulk Centre rules and guidelines state that if you cannot properly particularise the claim in 1024 characters then you should not use the Bulk Centre to issue the claim. The Claimants pleadings amount to circa 258 characters, leaving at least 700 characters available for the Claimant to plead adequately. The Defendant is embarrassed by the Claim, which faces him.

 

That sets out the issues, and a judge is more likely to accept that than "there is no cause of action ,,,,,," which is nonsense in most cases.

 

It is also helpful to note that HHJ Platts in HFO v Patel made it clear, that if you wish to raise an allegation of improper execution, then you must plead the breaches, not just say the agreement is unenforceable.

 

So, if the agreement is illegible then you say so but if the document is sooo illegible that you can read it, don’t go spouting off about the prescribed terms blah blah blah and what Lord Nichols of Birkenhead said in Wilson v FCT as its irrelevant

 

if you made a s78(1) request and the only document you have been disclosed to date is illegible and can’t be read then say so

 

for example

 

 

 

 

The document referred to as the “credit agreement” a copy of which is annexed to this

amended Defence marked exhibit is not easily legible and therefore fails to comply

with Regulation 2 Consumer Credit Cancellation Notices and Copies of Documents

Regulations 1983

 

No statement of account was provided

 

No terms applicable at the time of the purported assignment were provided.

 

Accordingly the Claimant is not compliant with s78 (1).

 

The Defendant is unable to plead as to any deficiencies within the agreement, nor is the

Defendant able to properly assess the document which the Claimant relies upon. The

Defendant accepts that further to the judgment of HHJ Platt’s in HFO v Patel and HHJ

Waksman Qc in Carey v HSBCthat the Defendant should plead any issues surrounding

any allegations of improper execution emanating from the agreement. However, since

the only documents produced are so grossly illegible, the Defendant is unable to plead

as to any defects. This seriously prejudices the Defendant as the Defendant is unable to

assess if this document is complete, if there are other documents referred to within it, if

the statutory content required by s61 (1)(a) CCA 1974 and Regulation 2 and schedule 1,2

and 6 Consumer Credit Agreements Regulations 1983 is present and accurate within the

document which the Claimant relies upon.

 

 

don’t waffle, it’s pointless, set out the facts that you are relying upon

 

plead your defence and remember, that CPR 16, where a party makes a denial as to the pleaded case of the Claimant, the rules require that a positive averment as to the facts you rely upon in rebutting the Claimants point. so if you don’t agree with the Claimants points in their claim say so, if you never signed an agreement and remember 100% say so, do not put the Claimant to strict proof of a signed agreement as you will just get Carey thrown in your face.

 

 

 

I will keep looking for you anyway.

[Gthereal]

So, from that thread I've decided not to submit an embarassed defence. I have something more specific but need a bit more time to chase down some details.

 

I need to ask for an extension under CPR 15.5. I can't find the exact rules on this though. Could anyone point me towards these?

 

Is there a CPR 15.5 template letter?

Can I send the letter straight away or do I have to wait a period of time after sending the 31.14 letter?

If there is a required period to wait after the 31.14 letter what do I do if this period of time takes me beyond the 33 days?

 

Any advice or pointing in the right direcion appreciated.

[citizenB]

So, from that thread I've decided not to submit an embarassed defence. I have something more specific but need a bit more time to chase down some details.

 

I need to ask for an extension under CPR 15.5. I can't find the exact rules on this though. Could anyone point me towards these?

 

Is there a CPR 15.5 template letter?

Can I send the letter straight away or do I have to wait a period of time after sending the 31.14 letter?

If there is a required period to wait after the 31.14 letter what do I do if this period of time takes me beyond the 33 days?

 

Any advice or pointing in the right direcion appreciated.

 

Hello, if you have not received a response to your CPR31.14 within the time you specified then you can send a request for more time under CPR15.5 No template as such but here are the bones of a draft from my own files.

 

Dear Solicitor

 

Court references

Claim number

Between Bank v Gthereal

 

Documents requested under CPR31.14 and CPR31.15 had not been received by me.

I am therefore requesting that you agree to an extension of time under CPR15.5, in order for you to provide those documents to enable me to be able to submit a fully particularised defence.

“Agreement extending the period for filing a defence

15.5

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part15.htm#IDAUXNTB

(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.”

Please confirm your agreement in writing by (give them a date here).

Should I not receive your agreement, I will apply to the court for further time.

 

Yours etc.

 

You should also find more about applying for more time in the following thread.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

HTH

[Dotty50]

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part31.htm

 

Hope this link works ok john

[Gthereal]

Thanks Citizenb and Dotty.

 

I sent off a request for an time extension this morning. Then when I got home from work there was an unexpected letter from Optima. It's a reply from my CPR 18 request!

 

They start by telling me that CPR 18 does not specify a time limit. (I'd asked for response with 14 days.)

 

Then they point out that I have already had a copy of my credit agreement. - True, at the start of the year I was sent it, but think I'm entitled to ask for another copy as it was almost 8 months ago.

 

They also sent: the Credit agreement, Recent Terms and Conditions & a Recent Account Statement. They also state they've written to their client for recent account statements and wil forward them to me.

 

They they tell me that I appear to have failed to file an Acknowledgement of Service - this isn't true as I filed this online. They are however "prepared to grant a 28 day extension" to the 7th January 2011.

 

They finish with.

 

"Having reviewed the credit agreement we are satisfied that there is no legitimate basis upon which to defend our clients claim. We fail to see why you would wish to incur the costs of filing a fully pleaded defence and we reserve the right to draw this letter to the courts attention on the issue of our client's cost."

 

Is any of this unreasonable? I'd like a 28 day extension from now if possible. Should I still call the courts tomorrow to tell them the 7th???

 

Should they have provided more documents than these, there are a lot less than stated in the CPR 31.14 letter.

[citizenB]

Erm, did you ask for the agreement on the CPR18 then ? Cos that is for information only.. perhaps to clarify a certain point but NOT for documents.

 

CPR31.14 is the letter for documents mentioned in the POC.

 

When did they write that letter then because the 7th January is not 28 days lol.

 

Optima will try and baffle you with bits of law that they do not seem to understand themselves. CPR18.. you can request information to be given to you within a certain time .. read the 1st post in the following and scroll down a bit. There is a template CPR18

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

 

Yes, I would telephone the court in the morning and ask if you can email / fax the letter over to them as they will want to see a copy of the "permission.

 

Whilst you are speaking to the court you can confirm that your AoS was accepted and in time.

 

If they havent sent you all the documents that you requested in your CPR31.14 then you must send a follow up letter asking for them.

 

If you let us know what the court says tomorrow. Then list what documents you are now missing, we can help you draft something to send to Optomists

[citizenB]

Aha, right yes you were misinformed as to the CPR request you were to send once you first received the claim form.

 

CPR18 is as already explained for information or clarification of a point and you can send one of these every day with a 14 day time limit if you wish and as long as your request is not unreasonable. It is what they are for.

 

CPR31.14 is the request for documents mentioned in the PoC.

[Gthereal]

Yes, I got some misinformation here but it was good intentioned (and free) so I'm not complaining and it looks like Optima have replied to it in some form and agreed to at least a form of extension if not the full amount.

 

When I speak to the courts should I mention that I also sent CPR 31.14 last week and that a 28 day extension should apply from that date? That way we should ensure that MBNA get all of the other requested documents to me.

 

They wrote the letter on the 16th December.

 

They haven't sent all the requested documents but to be fair they won't have received my CPR 31.14 request by the time they posted this letter so I'll also do a trace on that letter to find out when their 7 days is up.

 

I'll let you know what the courts say tomorrow.

 

Cheers Again

[citizenB]

The extension really is an agreed date between the parties for an extension of 28 days from the original filing date.. I think. However, it doesnt actually need to be 28 days.. so long as it is not more than 28 days IYKWIM