MBNA and Optima (Claim form from Northampton )

[DonkeyB]

It’s taken as an additional 28 days beyond the initial filing period of 28 days, so you can get 56 days in all from the date of service, I think.

 

A response to a CPR18 request must also be accompanied by a statement of truth, I believe.

[DonkeyB]

I would suggest that in your letter to the court stating what the extension is, you make clear your calculation of the dates, and include their letter to you; and copy in the oppo for avoidance of doubt.

[Gthereal]

Hi All,

Christmas day and I thought I'd get this in as I'll be oop north visiting family for the next few days and time is of the essence.

 

I sent Optimas letter to the court with the agreed extension date of 7th January. I scanned and sent by email and the court have responded.

 

In Optimas response letter to the CPR 18 I sent they have included (in their words):

 

1. Credit agreement and full terms and conditions.

2. Recent terms and conditions.

3. Recent account statement.

 

I think I'm missing:

 

1. 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.

 

2. 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

 

3 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 MBNA.

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 Breakdownof 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 dataand a summary of the nature of the information you have disclosed.

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

 

The thing is my main interest is not in disputing the credit agreement. This may or may not be valid. I've always paid my debts until I lost my job last year and was unable to.

 

After paying MBNA the token £1 a month I returned to work on a lesser wage and sent all my incomings and outgoings to everyone that I owed money to. MBNA accepted my payment offer and I gave them my card details and payment left my account for several months. The latest statement they've sent me shows that I owe £700 less than I did at the beginning of the year.

 

I rather stupidly didn't check that the payments to MBNA had continued monthly and for reasons unknown to me they stopped taking the money from my account after 4 or 5 months. There was enough money in the bank, in fact it's still there waiting for them.

 

I feel that, because of the amount I owe, MBNA are attempting to push this towards CCJ then securing the debt on my home. They stopped taking the money so why should I add a CCJ to my credit history on top of the year old defaults??

 

It seems there is a gap of a few months between when MBNA stopped taking the money and when Optima sent their first warning letter. Unfortunately for me, due to working away I picked their warning letter and the court letter up at the same time. If MBNA had simply sent me a letter to tell me there was a problem I could have tried to rectify things.

 

Can anybody see any defence in what I've said above? I'm now wondering what I need to put on my court defence as it seems its going to go that far.

 

Thanks and Merry Christmas

 

G

[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:)

[Gthereal]

citizenB - No, they haven't passed anything onto a CA, between the last payments they took and the first letter threatening court action was a period of around 3 months. Then the letter came from Optima, who I think are a legal arm of MBNA - possibly DCA's also.

 

The money is still in the bank, waiting.

 

Anyone ever heard of them stopping taking their payments before?

 

Any ideas for the wording of a defence?

 

G

[Gthereal]

Just a little bump. Can anyone point me in the direction of the next step?

 

Can I file my defence online?

 

Given the circumstances outlined above, how would you word the defence?

 

Are there any example defences shown on here?

[The Mould]

Just a little bump. Can anyone point me in the direction of the next step?

 

Can I file my defence online?

 

Given the circumstances outlined above, how would you word the defence?

 

Are there any example defences shown on here?

 

Hello Gthereal

 

Do you have the agreement that was concluded between you and MBNA whereby MBNA had accepted your offer to pay at a rate of £190 per month?

 

The said agreement that was formed and concluded between you two parties superseded the original Credit Agreement and the terms and conditions thereof, MBNA have pleaded their claim under the original Credit Agreement!

 

Based upon your statements Gthereal, there is no cause of action for the claim pleaded by MBNA.

 

You performed under the new contract, there is no breach caused by you.

 

Can you post up the full details of the new agreement/contract that was agreed to by both you and MBNA please.

 

Kind Regards

 

The Mould

[Gthereal]

Unfortunately, I don't seem to have a written agreement. I only have the letter and expenditure froms that I sent. Couldn't remember if I had as there were lots of letters flying to and from the DCA's back then. Cap One turned down my offer but MBNA called me to to go through my expenditure form.

 

After spending some time on the phone with a seemingly very helpful advisor (I have his name but whether it was a real one I don't know) - I made an initial payment on my Debit Card and authorised him to take the negotiated amount from my account at the beginning of each month. They took the first payment 23rd Feb, then 4 more payments at the beginning of March, April, May & June then just stopped.

 

In March, I had a letter from MBNA asking for £1,800. Obviously I couldn't pay this so I called and was told that my payment scheme obviously hadn't got into the system before this was sent so to ignore this. But the letter did show that the outstanding balance had reduced by the initial payment I made over the phone.

 

Around April / May I had the first letters from Optima. These were the usual DCA type threatening letters, and similar to what I was getting form Cap One DCA's, asking me how I intended to pay the full amount. The recent correspondance from Optima quotes a letter from them in May which was a response to my statutory request and asked for my settlement proposals. Again, I ignored this as I was already in a monthly repayment agreement and thought that this was another scare tactic from a DCA.

 

I've only just pieced this all together as it was a very stressful time with lots of confusing letters flying around. Am I screwed??????

 

I need to send the defence letter off tomorrow if possible. Could anyone please advise me if there's anything I should be putting down on the defence letter.

 

I still haven't received all the requested information, including a recent statement. The latetest statement I have is from February and so doesn't take into account the 5 payments I have made since.

 

Thanks in advance.

Edited January 4, 2011 by Gthereal

[The Mould]

Unfortunately, I don't seem to have a written agreement. I only have the letter and expenditure froms that I sent. Couldn't remember if I had as there were lots of letters flying to and from the DCA's back then. Cap One turned down my offer but MBNA called me to to go through my expenditure form.

 

After spending some time on the phone with a seemingly very helpful advisor (I have his name but whether it was a real one I don't know) - I made an initial payment on my Debit Card and authorised him to take the negotiated amount from my account at the beginning of each month. They took the first payment 23rd Feb, then 4 more payments at the beginning of March, April, May & June then just stopped.

 

In March, I had a letter from MBNA asking for £1,800. Obviously I couldn't pay this so I called and was told that my payment scheme obviously hadn't got into the system before this was sent so to ignore this. But the letter did show that the outstanding balance had reduced by the initial payment I made over the phone.

 

Around April / May I had the first letters from Optima. These were the usual DCA type threatening letters, and similar to what I was getting form Cap One DCA's, asking me how I intended to pay the full amount. The recent correspondance from Optima quotes a letter from them in May which was a response to my statutory request and asked for my settlement proposals. Again, I ignored this as I was already in a monthly repayment agreement and thought that this was another scare tactic from a DCA.

 

I've only just pieced this all together as it was a very stressful time with lots of confusing letters flying around. Am I screwed??????

 

I need to send the defence letter off tomorrow if possible. Could anyone please advise me if there's anything I should be putting down on the defence letter.

 

I still haven't received all the requested information, including a recent statement. The latetest statement I have is from February and so doesn't take into account the 5 payments I have made since.

 

Thanks in advance.

 

Very briefly Gthereal

 

You want those statements that show your payments being made as per the agreement, as the payments were set up to be paid via your debit card, then only you can request that this payment is to be cancelled, the claimant is at fault, you need to state these facts in your defence, just defend based on the facts that you have stated here.

 

You have not breached nor repudiated on any agreement and the agreement pleaded in the claimant's claim was superseded with a new agreement between the two parties in this action, you have performed your obligations under the said new agreement, the claimant has not kept to his agreement, you are not at fault, the claimant has no cause of action to rely upon for commencing with these proceedings.

 

Kind Regards

 

The Mould

[Gthereal]

With the Optima claim being:

 

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.

So, can the defence be :

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

Item 2 of the claim states that I failed to make minimum payments. This is incorrect. I made token payments of £1 for the allowed 6 month period. At the end of this period I contacted MBNA with income and expenditure forms, paid an initial amout of £121 then agreed a monthly payment of £141. I gave my Halifax current account details and asked for payments to be taken at the beginning of each month.

 

Monthly payments were taken from my account until June 2010 after which MBNA stopped taking payment. Money is still available in my account and I can see no reason why MBNA have ceased to take any further payments.

 

Letters from Optima started after I had begun making monthly payments to MBNA and within the period that MBNA were taking money from my account. None of these letters make reference to the monthly agreement which started in February though they are aware that I have made payment to reduce the outstanding balance by £685.

 

The recent statement supplied by Optima does not include the £685 paid between February and June.

 

Further documentation requested by the myself has not been supplied by MBNA or Optima.

 

I am willing to pay the July - December monthly payments if MBNA can explain why they stopped taking payment so that we ensure this situation doesn't happen again.

 

I fail to see why this requires a court action when a simple letter making me aware that MBNA had stopped taking payment and explaining why would have prompted me to attemt to make payments in some other way.

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

 

I do have statements showing all 5 of the payments that I made between February and June. My July to December statements also show that there were sufficient funds to cover further monthly payments.

Edited January 4, 2011 by Gthereal

[Gthereal]

Bump - Can anyone take a look at my defence, please. I'm not sure if I'm going into too much detail or if anything here isn't relevant.

 

I've been reading some other threads and see that some defendants have submitted their defences via email. Is this OK? My deadline is the 7th so I was hoping somebody could have a look before I send it Special Delivery tomorrow. If email / fax is OK I have slightly longer?

 

Thanks in advance and also for all the advice I've already been given. I just want to be sure I'm submitting a valid defence, maybe once I'm happy with that I can look at paying for some legal advice.

[The Mould]

Good evening Gthereal

 

OK, that is not looking to bad (don't take that the wrong way please, I know this process is alien to you).

 

Right, you need further details of the facts of this matter stated in your defence, such as, the name of the representive of the claimant whom you spoke with where it was mutually agreed by the two parties in this action to abandon the original contract and replace it with a new contract, the date of that telephone call when the new contract was formed and concluded orally, the duration of the call (or the approx duration thereof, if you have it or can remember it well).

 

Those bank statements that you have for that period, is the minimum amount stated on the statements required for payment different to the agreed amount that was to be taken from the claimant by way of the debit card details you supplied him with?

 

Come back. Roger.

 

Kind Regards

 

The Mould

[The Mould]

Gthereal

 

What is the date that your defence needs to be filed by?

 

You know what this claim is about, you know the facts of this matter, so, you are able to file a fully particularized defence against the claim, I will help you to do this, can you let me know about that filing date please.

 

Kind Regards

 

The Mould

[Gthereal]

This needs to be filed by the 7th, this Friday.

 

I do have the name of the person that I spoke to so I can quote this. I also have the date as, luckily, I made an intitial payment over the phone of what I could afford at that moment (£121). Call duration was approximately 45 minutes as we went through my expenditure form.

 

Minimum payment at the time on this visa card was £198. The amount we calculated that I could afford, when taking into account other debts, was £141.

 

Thanks The Mould

[The Mould]

Good afternoon Gthereal

 

Here is a draft for your defence.

 

In The Northampton County Court

Claim no. xxxxxxxxxx

Claimant: MBNA

Ref: xx/xxx/xxxxxx

Defendant: Mr Gthereal

Date: xx January 2011

　

DEFENCE:

I, Mr (put your name), age xx years (put your age), of (put your address), am the defendant in these proceedings and I make the following statement in my defence/response to the claim pleaded by the claimant.

 

1. The allegation pleaded in para/point 1 of the claimant’s Particulars of Claim is denied.

 

2. The allegation pleaded in para/point 2 of the claimant’s Particulars of Claim is denied.

 

3. It is admitted by the defendant that he did enter into a Credit Agreement with the claimant, the said agreement was concluded between the two parties in these proceedings on (put the date).

 

The reasons why the defendant denies the said allegations pleaded

4. It will be noted that the said Credit Agreement is pleaded by the claimant as being the subject of his claim, with the allegation that the breach thereof pleaded by him in para/point 2 is the cause of action that provides the grounds of his standing before the court seeking enforcement of the said Credit Agreement.

 

5. On the (put date), after communicating with the claimant to notify him of my financial difficulties, he gave his consent permitting me to make a token payment of £1.00 for a temporary period of six (6) months, when this temporary agreement/arrangement to pay at the said rate was at an end, the claimant and I held discussion in a telephone call on (put date) regarding a new agreement/contract with a new minimum payment amount to be paid by me on to the account on the date that the sum was due.

 

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).

 

b) During the said telephone conversation, both parties mutually agreed to abandon the original Credit Agreement (the subject of these proceedings). A new Contract/Agreement was formed and concluded between the two parties on the said date.

 

c) By mutual consent, both parties agreed that the minimum payment that was to be paid into or to the account on the date that the payment became due, was to be a sum amount of £141.00.

 

e) It was agreed, by both parties, that the said new minimum payment was to be paid to the account by way of my debit card, the claimant was furnished with the full details thereof and, in order to seal/conclude our new contract, he took a payment of £121.00 from those said debit card details during the course of the said telephone conversation.

 

6. From the moment that the said new contract was formed/concluded, I honoured the said contract through performance of my obligation to this new instrument that I had agreed to be now bound by.

 

7. The agreed payment and method thereof under the term(s) of the said new contract was payment via debit card transaction, this such method of payment can only be cancelled by me by way of express notice in writing to the recipient notifying him that I withdraw my consent authorizing him to draw any further funds from the said debit card.

 

a) I contend that at no time after agreeing to the [same] thing (the said new contract) with the claimant did I ever cancel my consent which granted the claimant the authority to draw the agreed said payment that was due to him from the said debit card details that I had supplied him with.

 

b) I contend that at no time after agreeing to the [same] thing (the said new contract) with the claimant, did I ever withhold any payment that was due to him.

 

8. I contend that the discussion and negotiation that was held between the two parties during the course of the said telephone call with (put the rep’s name) [did] form and conclude a new legally binding agreement/contract between us two parties that then superseded the original Credit Agreement and all subsequent terms and conditions thereof.

 

9. I contend that the only Heads of Terms to the said new contract between the two parties were, that I was to pay £141.00 per month (the due date for payment), which I did agree to and, the claimant was to draw the said sum at/on the date the said payment was due via the debit card details that he was supplied with, which he did agree to, further, I assert that this said rate of payment and the said method of payment was to continue until the balance on the account was paid in full, which, again, both parties in this action had agreed to.

 

10. In bringing this action against me without any notice or warning, it has become clear and unequivocal to me that the claimant has abandoned the said instrument that he agreed to be bound by, I contend that the claimant has repudiated the said new contract without legal excuse, just cause or any good or valid reason. I assert that, if the claimant can (as he has done) abandon his obligation(s) under the said new contract (in the manner that he has done) then, as a matter of common justice, under the principles of the common law of contract, I too can abandon my obligation(s) under the said new contract and treat my obligation(s) thereto as discharged, as I am the non-breaching party of that said new contract.

 

11. I contend that the claim brought by the claimant is without merit, is incoherent and that he has no grounds for his pleaded cause of action to seek enforcement for his pleaded claim, consequently, I absolutely deny liability for his pleaded claim and his stated allegations thereof and put him to strict proof to substantiate the entirety of his said allegations.

 

12. The evidential value of the facts stated herein will be submitted/filed to the court by way of the documents/exhibits that I intend to rely upon in my defence, the list of my essential documents is presently being compiled and shall be filed and served accordingly upon its completion, if the claimant wishes for his claim to proceed.

 

STATEMENT OF TRUTH

　

Signed………. Date

(Defendant)

 

OK, Gthereal

 

This is in draft format at present, obviously you have a greater understanding of the facts/details/events etc, etc, than I would have, so this DRAFT should help you to understand what to say in your defence.

 

Edit/Amend/Add all and any further facts/details/issues that you wish to, put those dates in also.

Read, re-read and digest everything (I think I have not covered everything), check it all, double check it.

 

Hopefully it will be ready for you to send off to court on the morrow (registered/next day only), when you have it fully ready, you can also fax it to the court (fax and registered post it!).

 

Then, compile your list of documents that you can rely upon to substantiate your defence, make three (3) copies of each document, one for the court, one for the claimant and one for you, have them all ready for when you need to file a copy to the court and serve a copy upon the claimant (if he decides to continue with his claim).

 

I hope that will help you somewhat.

 

As I say, this is in DRAFT, add or delete anything that is relevant or not relevant.

 

I should be back on tonight around 9 or 10pm.

 

Kind Regards

 

The Mould

　

　

　

　

　

　

　

 

　

Edited January 5, 2011 by The Mould
Spacing between paragraphs

[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

[Dotty50]

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

[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

[Dotty50]

I couldn't resist it CB and if it gives us a chuckle that's a good thing!

[Gthereal]

Well, I edited those - cheers. No reprehensive minuets now.

[Gthereal]

The Mould - I thank you very very much.

 

I've filled in the blanks and edited the part about a token payment as I can't find any record on my bank statements so believe I offered the £1 but was told it wasn't necessary.

 

There's no mention of the fact that Optima still haven't replied to my CPR 31.14 request sent on the 16th December. Should I mention this also??

 

Would it be useful for me to mention that the "recent statement" they've supplied is from February 2010 and so doesn't include the 5 payments that I've made since this date??

Edited January 5, 2011 by Gthereal

[The Mould]

The Mould - I thank you very very much.

 

I've filled in the blanks and edited the part about a token payment as I can't find any record on my bank statements so believe I offered the £1 but was told it wasn't necessary.

 

There's no mention of the fact that Optima still haven't replied to my CPR 31.14 request sent on the 16th December. Should I mention this also??

 

Yes, absolutely inform the court of the claimant's non-compliance with your said request.

 

I wrote that draft as quick as I could, upon being notified of my spelling mistakes, I cried out aloud with laughter:lol: (very tired of late) Oh I don't know, excuses, excuses. Tut tut.

 

Kind Regards and good luck with your defence.

 

Remember to read up on - Contact Law/ breach of contract (different types of breach), repudiation of contract and what constitutes the formation of a contract etc, etc all relevant to your defence as well as all of the facts/circumstances that you already have knowledge of.

 

The Mould

[Gthereal]

I've added these two point to the end. I'll fax and post this letter tomorrow.

 

Thanks you again to everyone that has given advice on this thread so far.

[Gthereal]

Hello again.

This hasn't gone to court (yet) as I wrote them a letter and offered the a F&F of £3,000 which was refused, and they made me a counter offer of £10,500! I then followed this up with a F&F of £4,500 which would take me right to the end of a £3,000 overdraft facility but I though it'd be worth it to pay this debt off early. I also pointed out that I was offered (verbally unfortunately) by MBNA last year the ability to pay them 35% of the outstanding balance to clear the full amount and that the £4,500 was more than this 35%. Further to this I reminded them that (as it was they who hadn't taken my monthly payment) I was willing to continue with this payment if they could explain why they stopped taking the payment and ensure that it wouldn't happen again.

Today I received another letter declining my F&F offer and denying they ever made the 35% offer. I was unsurprised. They have however accepted my offer to continue the monthly payments - great I thought, that's all I wanted them to do since before this whole debacle! Here's the catch: If I accept the "offer" they'll add £890 worth of legal costs to the outstanding balance, which they now claim stands at £13,300!

What's this - with legal costs my debt now stands at almost £14,200 when I should only owe £12,800! So, if I agree to this they'll draft a Tomlin Order to stay the proceedings.

Can they really add this £890 for sending a few letters? Also, does the fact that the balance without legal costs is £500 more than I calculate mean they are adding interest?

[The Mould]

Hello again.

This hasn't gone to court (yet) as I wrote them a letter and offered the a F&F of £3,000 which was refused, and they made me a counter offer of £10,500! I then followed this up with a F&F of £4,500 which would take me right to the end of a £3,000 overdraft facility but I though it'd be worth it to pay this debt off early. I also pointed out that I was offered (verbally unfortunately) by MBNA last year the ability to pay them 35% of the outstanding balance to clear the full amount and that the £4,500 was more than this 35%. Further to this I reminded them that (as it was they who hadn't taken my monthly payment) I was willing to continue with this payment if they could explain why they stopped taking the payment and ensure that it wouldn't happen again.

Today I received another letter declining my F&F offer and denying they ever made the 35% offer. I was unsurprised. They have however accepted my offer to continue the monthly payments - great I thought, that's all I wanted them to do since before this whole debacle! Here's the catch: If I accept the "offer" they'll add £890 worth of legal costs to the outstanding balance, which they now claim stands at £13,300!

What's this - with legal costs my debt now stands at almost £14,200 when I should only owe £12,800! So, if I agree to this they'll draft a Tomlin Order to stay the proceedings.

Can they really add this £890 for sending a few letters? Also, does the fact that the balance without legal costs is £500 more than I calculate mean they are adding interest?

 

Hello Gthereal

 

In your circumstances, the answer to the question of them adding those recovery costs is NO, because it was the claimant, by his conduct/action of stopping the said normal monthly payments, who caused his cause of action in the first instance, you were not at fault, you have your evidence to substantiate this fact, so, inform him politely, that he can stick his additional costs up his nose.

 

Kind Regards

 

The Mould