MBNA and Arrow Global - claim form received - bal prob all unlawful charges ***Struck Out With Costs***

[MrHat]

DRAFT #1

 

 

The Defendant admits that on or about XX/11/1999 he entered into an agreement with MBNAand which was an agreement regulated by The Consumer Credit Act 1974 (The Act).

 

 

The particulars of claim are vague and do not provide sufficient detail to enable the defendant to plead effectively or at all.

 

 

The Claimant has failed to respond to a request, pursuant of CPR 31.14 and dated 25/08/2011, for copies of documents mentioned in the particulars of claim, in particular the 'default notice' and the 'notice of assignment'.

 

 

It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate.

 

 

It is denied that MBNA or Arrow Global served a default notice upon the Defendant complying with the provisions of section 88 of The Consumer Credit Act 1974.

 

 

It is admitted and averred that since the termination identified above, Arrow Global have made demand of the Defendant for the payment of money the subject of this claim.

 

 

Incorporated within the sum demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment. The Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

 

The Claimant has refused to respond to a request made pursuant of CPR 18 (dated 25/08/2011) to disclose a complete list of transactions, fees and charges citing that no such information is held by the Claimant or original creditor. The balance claimed cannot therefore be justified or accepted as accurate by the Defendant.

 

 

Further and in any event, by reason of the matters set out above and the requirements of section 87(1) of the Act, the steps taken by Arrow Global hereof were steps which Arrow Global were not entitled to take.

 

 

In the circumstances the facts and matters set out in the Particulars of Claim do not give rise to an entitlement to claim any of the relief now sought by the Claimant. The Claimant’s claim to be entitled to £1300 or to any other sum is denied.

 

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforesaid reasons

 

 

 

 

Part 20 Claim

1. The defendant intends to claim sums paid to the claimant in relation to penalty Charges Incorporated within the sum demanded by the Claimant are sums claimed for their administration fees, late payment charges and like provisions.
   
2. The defendant refers to As a consequence of the claimants failure and refusal to provide documents, the defendant is unable to plead the Part 20 claim with particularity.
   
3. And the defendant claims:-
   i) An order requiring the claimant/Part 20 defendant to disclose statements of account covering the entire period of the alleged agreement and a copy of the alleged agreement.
   ii) £4,600 unfair charges including restitution interest (please see attached list and calculations)
   iii) Additional unfair charges and restitution interest once a full list of transactions and charges has been obtained
   

[MrHat]

any comments welcomed...

[AndyOrch]

You don't need point 2 in the Part 20 as this would undermine your claim, IE if without particularity then your claim is also.

Otherwise nearly as good as one of mine:wink:

 

Andy

[MrHat]

Cheers Andy. For the part 20 I can make a a claim with particularity so will remove that. I will leave provision for charges applied on account prior to 2004 (as I have no details of charges before then)

 

Just making sure that my defence takes into account the following:

 

prior to claim issue...

 

1. SAR from MBNA and Arrow yielded no default, termination or assignment letters

2. CCA request was fulfilled a while ago and I do have a copy of original agreement (signed)

 

since claim issued...

 

3. CPR 31.14 (referring to default, termiantion, and assignment letters ) sent and no reply thus far

4. 28 day extension agreed and filed with court in light of CPR 31.14 response delay

5. Refusal to reply to CPR 18 request - 'no records of charges are kept'

 

I now know that

 

6. Balance is entirely made up of charges. If you add interest, my counterclaim far exceeds the claim

 

Arrow probably do not know that MBNA replied to my SAR request with charges listed from 2004-2007

 

My defence is due on 11th Oct. Should I finalise and enter my defence prior to then - is there any advantage in doing so? Or is it best to wait until nearer new deadline. Want to make the best 'chess move' here

 

Many thanks in advance!

[MrHat]

one other question - when I hover over the word 'restitution' it says that I can only go back 6 years. Is this true and therefore can I only go for 8% stat interest on anything prior to 6 years?

[AndyOrch]

Go back as far as you can prove, I have had success with 9+ years:wink:

[AndyOrch]

In hindsight Mr H if there are further claims leave point 2 in the Part 20.

 

Andy

[MrHat]

Will have a go at draft 2 later Andy! What do you think about my last question in post #204?

[AndyOrch]

Leave it till the deadline no brownies for being too early.

[MrHat]

Just an update: Still not CPR 31.14 response or CPR 18 response

 

Defence deadline is 11th October. Will be submitting by end of the week

[AndyOrch]

You can make application to enforce the CPR 18 request at a cost though.

 

Andy

[MrHat]

Is there any point though Andy? Would it not be better to submit a defence as suggested before

[AndyOrch]

Well you could have it struck out for non compliance, once a defence is entered you could be open and at risk to costs.

 

Andy

[AndyOrch]

Claim No:

 

Draft Order

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant

on (date) pursuant to CPR 31.14 and CPR 18 (date) by the provision to the Defendant of documents mentioned

in the Particulars of Claim, namely [here list the documents sought in the CPR 31.14 request

for example, [1] the agreement [2] the default notice and [3] the assignment,]

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against

the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the

standard basis and pursuant to the provisions of The Litigants in Person (Costs and

Expenses) Act 1975.

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event]

[assessed in the sum of £130.00]

 

Andy

[MrHat]

I would need to request a further extenion too wouldn't I?

[MrHat]

Andy - to remind you of where we are, please look at post #186. In posts #187 & #196 you give advice which appears to conflict with advice given today

[AndyOrch]

Its just an option(from protection of costs)and I still stand by that advice, your counter claim does give you a stronger stance than just an holding defence.

Time is restricted agreed so yes further extension may be advisable.

 

Andy

[MrHat]

Ok Andy - I know you are dealing with a lot of different threads so wanted to make sure that you are briefed properly on this one. So the advice is to ping an N244 off to the court with a draft order and request for further extension enclosing £45? Draft order to be something like the one in post #144 ok??? Thanks

[AndyOrch]

Move fast if that option is acceptable, time is ticking.Check with the Court after submission that a bar is placed on your defence date.If this is your first extension agreement by the claimant may be required and confirmed in writing.

 

Andy

[MrHat]

Andy - I have alread extended once (from Sept 13th to Oct 11th - 28 days) which was agreed with the cliamant and the court was notified. I thought I could not get more than 28 days without an N244. Is this correct?

Edited October 4, 2011 by MrHat

[AndyOrch]

You can request further extensions but if any exceed 28 days then this would involve an application fee.As you are making an application anyway with fee no harm just add it as a further request to the existing extension.

 

With regards to your comment re N24 you have lost me this is a General form of Judgment or Order?

 

Andy

Edited October 4, 2011 by Andyorch

[MrHat]

sorry meant N244 not N24

[MrHat]

hmmm...a little stuck and undecided on my next move. The way I see it is that I have 3 options:

 

 

1. Try and get an agreement from the claimant to extend for another 28 days and notify court. Pros: No cost; will be able to defend fully if docs are received. Cons: This could drag on forever

 

 

2. N244 application sent to court to force disclosure by the claimant of strike out. (if no extension agreed by claimant, also apply fro one from the court). Pros: Would force the claimant to show their hand, puts the clock on it. Cons: Costs at least £45, may not be accepted by judge, will not be looked at until after deadline

 

 

3. Enter a defence as drafted on post #201 Pros: Puts the ball in their court, perhaps the counterclaim will get them to back off? Could always defend on other points later on in the process Cons: Could be liable for costs if I lose, lacking the info I need to enter a more comprehensive defence

 

I could try a combination of 1 and 2?

 

Please tell me if I'm talking rubbish!

 

I am prepared to risk losing and paying up a few hundred in costs but would be worried if I opened myself up to a risk of them adding thoudands on top.

[AndyOrch]

As this will be SCT (small Claims track) the risk would be minimal.Just checked your thread:wink:

 

Andy

[MrHat]

Thanks for checking Andy!

 

so shall I proceed with the suggested defence (with a few tweaks)? It is my preferred option to be honest (gut feel). Or is there a compelling reason to try for an 'unless' order and go for strike out. Having read numerous other threads, I see that it is rare to be successful with a strike out attempt...