legarty / varde / mbna county court letter - Help!!!

[tjhookah]

I have just received an N1CPC dated a couple days back with varde as the claimant and legarty acting as their solicitors. It relates to an mbna card i took out sometime in 07 or 08 that I stopped paying as I was going through hardship.

 

The POC state:

 

'The claimant is the assignee of a debt(s) from mbna europe bank ltd. Notice of assignment was provided to the defendant by the claimant in writing. Despite demand for payment the assigned debt(s) remains due. The claimant complied with section III and IV and annex B of the PD pre-action conduct.

 

and the claimant claims: credit card account number XXXX balance of XXXX as of ??/??/2009. Interest under s69 of the county court act 1984 at the rate of 8% a year from ??/??/2009 to ??/??/2012 of XXXX and also interest at the daily rate at the same rate upto the date of judgement or earlier payment at a daily rate of XX AND cots.'

 

 

So where do I stand? The debt is around 2k and I'm in a situation where I can pay a quarter of it but not all. I would prefer to defend this but if I don't, will I have to acknowledge the N1 form or just discard it?

 

Do you think I would lose the case if I defended it? Is this bully boy tactics? Please help I don't know what to do!!!

[cymruambyth]

On what grounds would you be defending? If you do not reply to the claim form you will gain a CCJ by default. If you are in a position to repay a quarter it may be worth getting in touch with the claimant to.see if you can come to an arrangement to clear the debt and get the claim withdrawn.

The form shows al the time scales which you must keep to. I would acknowledge service on line (AOS), if you say you are going to defend you in effect get 33 days from date of claim to submit defence.

[tjhookah]

thanks, i;m not sure what grounds i am able to defend on? If i dont acknowledge the claim and call them before the 14 days and come to an agreement, will they withdraw the claim or do i till have to go online and acknowledge / defend it?

[consumeredge]

Particulars of Claim

 

The Claimant is the Assignee of a debt from MBNA Bank Europe Limited

 

Notice of Assignment was provided to the Defendant by the Claimant in writing.

When? And for how much?

Despite demands for payment the assigned debt remains due.

What letters were received from the Claimant demanding payment as the following statement made by the Claimant could prove crucial?

The Claimant complied with section III and IV and annex B of the PD pre-action conduct.

 

If you intend to dispute the claim I would take your time and read through the following:

Section III PRINCIPLES GOVERNING THE CONDUCT OF THE PARTIES IN CASES NOT SUBJECT TO A PRE-ACTION PROTOCOL

SECTION IV – REQUIREMENTS THAT APPLY IN ALL CASES

Annex B is merely about Information to be provided in a debt claim where the claimant is a business and the defendant is an individual,

　

(1) Provide details of how the money can be paid (for example the method of payment and the address to which it can be sent);

 

(2) State that the defendant can contact the claimant to discuss possible repayment options, and provide the relevant contact details; and

 

(3) Inform the defendant that free independent advice and assistance can be obtained from organisations.

　

By stating to the court Section III and Section IV the Claimant must prove they have complied with Annex A,

 

Guidance on pre-action procedure where no pre-action protocol or other formal pre-action procedure applies

　

1. General

 

1.1

 

This Annex (Annex A) sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol or other formal pre-action procedure applies. It is intended as a guide for parties, particularly those without legal representation, in straightforward claims that are likely to be disputed. It is not intended to apply to debt claims where it is not disputed that the money is owed and where the claimant follows a statutory or other formal pre-action procedure.

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2. Claimant’s letter before claim

 

2.1

 

The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –

(1) The claimant’s full name and address;

(2) The basis on which the claim is made (i.e. why the claimant says the defendant is liable);

(3) A clear summary of the facts on which the claim is based;

(4) What the claimant wants from the defendant;

(5) If financial loss is claimed, an explanation of how the amount has been calculated; and

(6) Details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant.

　

2.2

 

The letter should also –

(1) List the essential documents on which the claimant intends to rely;

(2) Set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this;

(3) State the date by which the claimant considers it reasonable for a full response to be provided by the defendant; and

(4) Identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see.

　

2.3

 

Unless the defendant is known to be legally represented the letter should –

(1) Refer the defendant to this Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction; and

(2) Inform the defendant that ignoring the letter before claim may lead to the claimant starting proceedings and may increase the defendant's liability for costs.

3. Defendant’s acknowledgement of the letter before claim

 

3.1

 

Where the defendant is unable to provide a full written response within 14 days of receipt of the letter before claim the defendant should, instead, provide a written acknowledgement within 14 days.

　

3.2

 

The acknowledgement –

(1) Should state whether an insurer is or may be involved;

(2) Should state the date by which the defendant (or insurer) will provide a full written response; and

(3) May request further information to enable the defendant to provide a full response.

　

3.3

 

If the date stated under paragraph 3.2(2) of this Annex is longer than the period stated in the letter before claim, the defendant should give reasons why a longer period is needed.

　

3.4

 

If the defendant (or insurer) does not provide either a letter of acknowledgement or full response within 14 days, and proceedings are subsequently started, then the court is likely to consider that the claimant has complied.

　

3.5

 

Where the defendant is unable to provide a full response within 14 days of receipt of the letter before claim because the defendant intends to seek advice then the written acknowledgement should state –

(1) That the defendant is seeking advice;

(2) From whom the defendant is seeking advice; and

(3) When the defendant expects to have received that advice and be in a position to provide a full response.

　

3.6

 

A claimant should allow a reasonable period of time of up to 14 days for a defendant to obtain advice.

　

4. Defendant’s full response

 

4.1

 

The defendant’s full written response should –

(1) Accept the claim in whole or in part; or

(2) State that the claim is not accepted.

　

4.2

 

Unless the defendant accepts the whole of the claim, the response should –

(1) Give reasons why the claim is not accepted, identifying which facts and which parts of the claim (if any) are accepted and which are disputed, and the basis of that dispute;

(2) State whether the defendant intends to make a counterclaim against the claimant (and, if so, provide information equivalent to a claimant’s letter before claim);

(3) State whether the defendant alleges that the claimant was wholly or partly to blame for the problem that led to the dispute and, if so, summarise the facts relied on;

(4) State whether the defendant agrees to the claimant’s proposals for ADR and if not, state why not and suggest an alternative form of ADR (or state why none is considered appropriate);

(5) List the essential documents on which the defendant intends to rely;

(6) Enclose copies of documents requested by the claimant, or explain why they will not be provided; and

(7) Identify and ask for copies of any further relevant documents, not in the defendant's possession and which the defendant wishes to see.

　

4.3

 

If the defendant (or insurer) does not provide a full response within the period stated in the claimant’s letter before claim (or any longer period stated in the defendant’s letter of acknowledgement), and a claim is subsequently started, then the court is likely to consider that the claimant has complied.

　

4.4

 

If the claimant starts proceedings before any longer period stated in the defendant’s letter of acknowledgement, the court will consider whether or not the longer period requested by the defendant was reasonable.

　

5. Claimant’s reply

 

　

5.1

 

The claimant should provide the documents requested by the defendant within as short a period of time as is practicable or explain in writing why the documents will not be provided.

　

5.2

 

If the defendant has made a counterclaim the claimant should provide information equivalent to the defendant's full response (see paragraphs 4.1 to 4.3 above).

6. Taking Stock

 

6.1

In following the above procedure, the parties will have a genuine opportunity to resolve the matter without needing to start proceedings. At the very least, it should be possible to establish what issues remain outstanding so as to narrow the scope of the proceedings and therefore limit potential costs.

　

6.2

 

If having completed the procedure the matter has not been resolved then the parties should undertake a further review of their respective positions to see if proceedings can still be avoided.

　

 

POC…The Claimant claims: credit card account number XXXX balance of XXXX as of ??/??/2009.

 

POC…The Claimant claims Interest under S69 County courts act 1984 at the rate of 8% a year from ??/??/2009 to ??/??/2012 of XXXX

For the Claimant to seek interest from xx/xx/2009 until xx/xx/2012 what Statements of Account were received from the Claimant to the Defendant between xx/xx/2009 and xx/xx/2012?

 

POC… Interest at the daily rate at the same rate up to the date of judgement or earlier payment at a daily rate of XX

This appears as though the Claimant could also seeking interest from the date of issuing the summons up until Judgement or earlier payment?

　

In relation to claims which could and, arguably, should have been brought sooner, Claymore Services Ltd v Nautilus Properties Ltd is a useful authority. Here Jackson J summarised three principles relating to the period during which interest accrues:

　

"(1) Where a claimant has delayed unreasonably in commencing or prosecuting proceedings, the court may exercise its discretion either to disallow interest for a period or to reduce the rate of interest.

(2) In exercising that discretion the court must take a realistic view of delay… It is not reasonable to expect any party to take every litigious step at the first possible moment, or to concentrate on litigation to the exclusion of all else. Delay should only be characterised as unreasonable for present purposes when, after making due allowance for the circumstances, it can be seen that the claimant has neglected or declined to pursue his claim for a significant period.

(3) When determining what disallowance or reduction of interest should be made to mark a period of unreasonable delay, the court should bear in mind that the defendant has had the use of the money during that period of delay."

Jackson J held that the claimant was guilty of unreasonable delay between December 2004 and December 2005 and the interest payable to it was reduced by 50% during this period.

　

　

　

I would be querying the interest