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

[citizenB]

Woohoo, that is brilliant.. Keep us informed

[caro]

Excellent news. Send copies and keep the originals though.

[MrHat]

Please can someone cast their eye over this letter I am planning to send to the Court today? I found a similar letter on a sticky above and have edited it to suit.....Also, can anyone point me to a recent thread so I can look at how costs are calculated and broken down?.......Sorry there will be no paragraphs in next post as I am at work and my pc here won't handle them....

[MrHat]

Dear Sir,

 

Further to the order made by Deputy District Judge sitting at Northampton (CCBC) County Court on 22/10/11.

 

I note that the claimant has now failed to file in court and serve on the defendant all of the documents in support of their claim despite being ordered to do so. In particular, the Claimant has refused to supply a full statement of the account showing how the balance claimed is calculated.

 

The claimant has had every opportunity to file such documentation and considering the size of the organisation, it is not unreasonable for them to have filed such documentation on time at the first opportunity, they have since been given a second chance to file documents by order of Deputy District Judge and they appear to have ignored the Honourable Judge’s orders and have failed to comply as directed.

 

The result of this failure, is that I am unable to file a fully particularised defence to the claimants claim as without the documentation which the Claimant relies upon, I am unable to answer their allegations as set out in their particulars and I am placed at a severe disadvantage, as I am a Litigant in person.

 

With a mind to saving costs, I would therefore request that pursuant to the order made by Deputy District Judge and CPR part 3.4, 2© that the claim is struck out and the Claimant be ordered to pay the defendants costs to be summarily assessed.

 

If this is not acceptable, then please refer this letter and the file to Deputy District Judge to highlight the Claimant’s non-compliance with the orders dated 28 October 2011 and for further directions to be issued. I have attached a letter documents that I received on 31/10/11 from the Claimant in response to my CPR 31.14 request of 25/08/11.

 

I note that the Default Notice is reconstituted and undated. Termination letter is missing and response to my CPR 18 request (of 25/08/11) requesting a full statement of the account is not forthcoming.

 

The Claimant has with complied with Deputy District Judge order.

 

Yours faithfully,

Edited November 9, 2011 by citizenB
Have popped some spacing in for you.

[citizenB]

Dear Sir,

 

Further to the order made by Deputy District Judge sitting at Northampton (CCBC) County Court on 22/10/11.

 

I note that the claimant has now failed to file in court and serve on the defendant all of the documents in support of their claim despite being ordered to do so. In particular, the Claimant has refused to supply a full statement of the account showing how the balance claimed is calculated.

 

The claimant has had every opportunity to file such documentation and considering the size of the organisation, it is not unreasonable for them to have filed such documentation on time at the first opportunity, they have since been given a second chance to file documents by order of Deputy District Judge and they appear to have ignored the Honourable Judge’s orders and have failed to comply as directed.

 

The result of this failure, is that I am unable to file a fully particularised defence to the claimants claim as without the documentation which the Claimant relies upon, I am unable to answer their allegations as set out in their particulars and I am placed at a severe disadvantage, as I am a Litigant in person.

 

With a mind to saving costs, I would therefore request that pursuant to the order made by Deputy District Judge and CPR part 3.4, 2© that the claim is struck out and the Claimant be ordered to pay the defendants costs to be summarily assessed.

 

If this is not acceptable, then please refer this letter and the file to Deputy District Judge to highlight the Claimant’s non-compliance with the orders dated 28 October 2011 and for further directions to be issued. I have attached a letter and copy documents that I received on 31/10/11 from the Claimant in response to my CPR 31.14 request of 25/08/11.

 

It is also noted that the Default Notice is reconstituted and undated. Termination letter is missing and there has been response to my CPR 18 request (of 25/08/11) requesting a full statement of the account is not forthcoming.

 

The Claimant has with complied with Deputy District Judge order.

 

Yours faithfully,

 

Mr H, I am a little puzzled by that last sentence.. !! Surely the claimant has NOT complied with the order and this is why you are writing.

 

I have also added some bits in blue to make the letter flow a bit better

[MrHat]

yes it was meant to say - The Claimant has NOT with complied with Deputy District Judge order!!! Thanks for your help

[citizenB]

I am having a search for a schedule of costs.. as soon as I find a current one, I will post it up. Meanwhile, Andy should be back today..

[MrHat]

Post #81 on this thread could be edited to suit - http://www.consumeractiongroup.co.uk/forum/showthread.php?312001-Received-letter-from-Bryan-Carter-Solicitors-***-Discontinued***/page5 - would I need to send this at the same time as my request for strike out or could it be sent later

[MrHat]

Any advice on whether I could send my costs later or do I need to send them at the same time?

[MrHat]

Right - I have sent off the letter by fax (without breakdown of costs). I wanted to get it in today as advised by court yesterday...

[caro]

Good letter.

[MrHat]

We'll see if it works. Not expecting it to but it can't do any harm.

[caro]

Positive thinking!

[MrHat]

For the second time, the court has 'not received' my fax so I have e-mailed them a copy of my letter and attachments as a backup.

 

My file is showing that an e-mail has been received but it has not been dealt with yet.

 

My 2 weeks from the deadline on the General Directions Order is up this Friday so I need to take care that I don't lose by default by not filing a defence in time. This could be the case if the court decides that they are satisfied that the Claimant has complied with the order sufficently.

 

I think I need to start thinking about my defence so I don't end up leaving it to the last minute and would appreciated any views.

 

The main points as far as I am concerned are

 

1. They have not complied with judges orders fully, or my original CPR 18 request asking for information on how they arrive at the figure claimed making it impossible to enter a full defence

2. I have evidence (from a SAR of the OC) that the entire balance is made up of charges (is this a defence or merely a counterclaim argument?)

3. CPR 31.14 request yielded only an undated recon default notice. No termination notice supplied but it was not specifically mentioned in POC so not sure CPR 31.14 is valid here

 

Any ideas on how to play my hand?

[caro]

The charges are a defence. I'm sure others will be able to advise on the rest.

[AndyOrch]

Hi responding to your PM.

 

Ok have you spoken to the court this week to clarify your options re application and defence submission date?

Explain what you have stated above Northampton can suspend the date and issue further direction to the claimant.Once you have clarified and they still refuse to suspend then a semi holding/ factual account defence will have to be submitted on time.

 

Andy

[MrHat]

Thanks Andy...I have been told to call the court back tomorrow to see what they have done with my letter. I will ask to speak to the fees team and get some guidance. Will post and update tomorrow.

[MrHat]

Hi - I spoke to the court and my letter has been passed on to the District Judge. It may be a while before he looks at it. I was advised to e-mail or fax in a defence by Friday to be on the safe side. She said that they would file it 'in a special place' and only submit it as a defence if needed. Does that make sense based on what others have had to do in similar situations????

[AndyOrch]

Stand bye defence to allow the Court time to catch up but covering you also in the event they don't.

 

Andy

[MrHat]

Hi - this is a rehash of a defence I (with Andy's help and using other examples) drafted a while ago when I thought I'd have to file on the original deadline (in Sept). Any comments/suggested edits welcomed. I aim to have this finalised tomorrow and will e-mail it to them on Friday. Remember - this is a 'standby defence'

 

 

Defence

 

 

The Defendant admits that on or about XX/11/1999 (he/she) 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 fully 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 a true copy of the 'default notice'.

 

 

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.

 

 

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.

 

 

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 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.

 

 

An order was made by Deputy District Judge X sitting at Northampton (CCBC) county court on 22/10/11 for the Claimant to supply documents requested pursuant of CPR 31.14 and CPR 18 by 04/11/11.

The claimant has had every opportunity to file such documentation and considering the size of the organisation, it is not unreasonable for them to have filed such documentation on time at the first opportunity, they have since been given a second chance to file documents by order of Deputy District Judge X and they appear to have ignored the Honourable Judge’s orders and have failed to comply as directed.

I note that the claimant has now failed to file in court and serve on the Defendant all of the documents in support of their claim despite being ordered to do so. In particular, the Claimant has refused to supply a full statement of the account showing how the balance claimed is calculated.

 

 

The result of this failure, is that I am unable to file a fully particularised defence to the claimants claim as without the documentation which the Claimant relies upon, I am unable to answer their allegations as set out in their particulars and I am placed at a severe disadvantage, as I am a Litigant in person.

 

 

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.

 

 

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]

BUMPing this thread as I have to get this finalised today so I can send tomorrow. Any help would be greatly appreciated!

[MrHat]

one last ttt

 

[AndyOrch]

Its fine Mr H lets hope it wont be required.You could add in the intro that this defence is submitted in the event that my application (dated) as not been processed

in due time of this defence submission as advised by the CCBC as the claimant as continually frustrated disclosure and refused to supply documents that their claim is reliant upon. Then your defence ......

 

Just an idea and rather embarrassing for the Claimant and Court in away?

 

Andy

[MrHat]

Thanks for coming to the rescue Andy!

 

I will add that bit in, it can do no harm...

[MrHat]

Right - I have polished up my standby defence and submitted it with a covering letter. Not much I can do now but wait for news......thanks again to all that have helped out on this thread.....will be back with an update when I have news