MBNA and Optima (Claim form from Northampton )

[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

[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.

[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.

[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

[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.

[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

[citizenB]

You can actually send a CPR18 request, legitimately, asking the reason why they stopped taking the payments from the bank account. One reason could be that they passed the account on to a collection agent. Did they ? If so, then at the very least somone shoud explain why.

 

I agree. If they stopped taking the payments then they are responsible for the agreed terms of the new payment plan failing.

 

It is good that you have those payments stacking up in the bank as you can prove that it wasnt for any reason from your end the payments werent made:)

[citizenB]

a) The claimant’s reprehensive/employee with whom I held the said telephone conversation with gave his name as (put his name), he did not provide me with any details of his full name. The said telephone conversation on the (put date) lasted for approximately forty five minuets (45 mins).

 

Mould, should that be representative/employee

[citizenB]

Even better that the reprehensive employee has been doing a minuet for 45 mins!

 

Excellent find, Dotty.

 

It is so annoying that spell check doesnt actually pick up on what you MEAN to say and if the error makes a word.. it leaves it alone.. makes for some fun reading sometimes