County Court Claim - Hillbillies (prev MBNA)

[Battlescars]

Hi CAG,

 

Long time member but having had computer issues (amongst other things) don't get to post often..but read lots and so here's what i did and where I am. I'm no Legal Bod, but here goes...

 

Claim form issue date 2nd May, received 5th May, ackd (full def) 6th May, BankHol 7th May, sent CPR letter 8th May, they received 9th May, rang sols 16th May (said ring claimant), rang claimant 17th May (didn't have all docs requested, waiting on DN & their :???:NOA) got full extension, received what they had 18th May, sent extension to Northampton 22nd May, they received 23rd May (which i found out today), need to check they confirm extension tomorrow (didn't have their no. to hand today).

So original defence was set 4th June but as this was BankHol again, (lost 3 days) & I was gonna be set for 1st June. Once extension agreed this should now make new def by 2nd July - so I've got 5.5 weeks to get my defence together).

 

POC - The claimant's claim is in respect of a credit facility, ACCOUNT NUMBER, provided by MBNA at the defendant's request on (over 10yrs ago). The agreement was subsequently defaulted. Failure to meet requests for payment resulted in account the account being terminated. On (2 days after remedy date on DN approx 2yrs ago) all legal and beneficial interest for the monies was assigned to Hillbillies. The defendant was duly notified in writing of the assignment and that a balance of (over £5k) was due. The balance of (over £5k - minus tokens) remains owing from the defendant.

 

So what is my next move? part 18, N244 or wait to defend. Want to be prepared and not bodge anything up.

 

Thanks for listening.

BS

[Battlescars]

Urgent Help!

 

I have just rang the court today who informed me that the full extension letter I sent in last Tues which they received last Weds (and haven't logged yet) needs to come from the sols and not the claimant? is this correct? Defence due Friday if extension isn't agreed.

What do I need to do? Not much time now.

Rangs sol's who have informed me that I need to get claimant to tell the sols to send me a letter and the bloke who signed the SOT retired before issue date!!!!

[AndyOrch]

HI Battle responding to your PM

 

CPR15.5

(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.

 

Nope dosent say anything that it must come from the Solicitor just the Claimant.Ring them back and advise what I state and hopefully you will get a more knowledgeable telephone clerk.

 

Andy

[Battlescars]

HI Battle responding to your PM

 

CPR15.5

(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.

 

Nope dosent say anything that it must come from the Solicitor just the Claimant.Ring them back and advise what I state and hopefully you will get a more knowledgeable telephone clerk.

 

Andy

 

Cheers Andy. I did have a lengthy phone convo with her telling her this and she said it had to have the sols noted on the letter as they are the ones who have brought proceedings. Claim form says Claimant: Hillbillies & sOT signed by (now retired before issue date) sol as claimants solicitor.

 

Oh and they say they do nothing but note it regarding extension. is that right?

Edited May 29, 2012 by Battlescars
extra info

[AndyOrch]

Well if they want to be pedantic then you need to speak to the Sol and get them to email same response.Northampton do have a facility to bar the default judgment process until the agreed defence date but yes its quite true the agreement is between you and the Claimant/Sol that a further 28 days is deemed agreeable.They just simply do not request default judgment.

 

Regards

 

Andy

[Battlescars]

spoke to sols who send me back to claimant claiming they have file and are dealing with it.

 

Ok regards that then. I have proof of extension so they won't be honouring CPR 15.5 will they. I'm sure when it's logged by tomorrow it'll be fine, will update tomorrow then. Cheers again.

 

EDIT: sorry, what should I do with regard to post 1 next step too?

Edited May 29, 2012 by Battlescars
extra info

[AndyOrch]

Await if any disclosure then review your next move, start in the meantime to draft a defence in the event that there is no disclosure.N244 strike out, no on what grounds? CPR 18, no you must wait until they respond to your CPR 31.

 

Andy

[Battlescars]

How long should I wait for full disclosure of CPR 31.14 then & then just wait to defend?

 

Just to confirm, you said no to N244 (I thought this ordered disclosure of CPR 31.14 unreceived items via judge) & no to PART 18 (I have some q's regarding the docs they HAVE sent me), or do I just wait for no disclosure and stick it all into a defence?

 

Sorry for all the q's.

[AndyOrch]

How long should I wait for full disclosure of CPR 31.14 then & then just wait to defend?

 

Just to confirm, you said no to N244 (I thought this ordered disclosure of CPR 31.14 unreceived items via judge) & no to PART 18 (I have some q's regarding the docs they HAVE sent me), or do I just wait for no disclosure and stick it all into a defence?

 

Sorry for all the q's.

 

They have 56 days to comply with your CPR31 request, they never respond within7/14 days.Dont fall into the trap of basing your defence on none compliance of docs that is not a defence to the claim.

Use the CPR tactfully to your advantage.By all means if you have questions with regards to docs not referred to in the P.o.C then CPR 18.If there is no compliance at all you can bring this to the Courts attention within your AQ, the Claimant is frustrating your attempts for clarification ( not to submit a defence).

 

When you referred to the N244 I assumed you was implying strike out not disclosure.N244 can be made to disclose its not always successful and at £80 a pop you cross your fingers and hope the DJ will agree.Most wont and state wait until standard disclosure (post defence) now why are you defending? See my point?

 

Winning at litigation is about using your knowledge of the procedures to coerce the Claimant into a position that is either not worth pursing, cant answer or disclose or getting them to discontinue.

 

Regards

 

Andy

[Battlescars]

They have 56 days to comply with your CPR31 request, they never respond within7/14 days.Dont fall into the trap of basing your defence on none compliance of docs that is not a defence to the claim.

Use the CPR tactfully to your advantage.By all means if you have questions with regards to docs not referred to in the P.o.C then CPR 18.If there is no compliance at all you can bring this to the Courts attention within your AQ, the Claimant is frustrating your attempts for clarification ( not to submit a defence).

 

When you referred to the N244 I assumed you was implying strike out not disclosure.N244 can be made to disclose its not always successful and at £80 a pop you cross your fingers and hope the DJ will agree.Most wont and state wait until standard disclosure (post defence) now why are you defending? See my point?

 

Winning at litigation is about using your knowledge of the procedures to coerce the Claimant into a position that is either not worth pursing, cant answer or disclose or getting them to discontinue.

 

Regards

 

Andy

 

Hi Andy, thanks for your reply except I think I'm a bit more confused . can you tell me where I'm going wrong please?

 

I thought (from what I read on CAG):

 

a) If no compliance with CPR 31.14 & 31.15 request then I would apply for N244 to court requesting disclosure (and if non disclosure strike out.) and an extension. I thought they only had 7 days to comply with the CPR 31.14 request before moving to N244. (I never realised it depended on how the judge felt on the day, whether they agreed or not to it.)

 

b) Now I read it that they have up until defence day to comply with 31.14 request. How does this pan out then as you're suppose to have 7 days to peruse the docs aren't you i.e. how do I review my next move with no time?

 

c) Can I only ask questions regarding PART 18 of things that AREN'T referred to in the POC and NOT use it to ask questions about info on the docs that I have received (from CPR 31.14 & so POC)? Is it wise to do this or save it to help with defence i.e. don't bring their attention to things, so they can drum something out to help themselves battle the defence?

 

d) I have some postable docs I could PM you if you require further info.

 

e)By the sounds of it I don't do anything until defence date (except prep defence) and hope they disclose beforehand. If they do disclose beforehand (i.e. same day) I have zero time to look at and submit defence. if they don't disclose I have zero time to look at and submit defence. whatever happens even i submit a defence on defence day whether it's rubbish or not. By the sounds of it I'm gonna be saying "By the Power of Greyskull, i have a DEFENCE!" and that's it. (Sorry mate, if I don't laugh, i'll cry).

 

f) I did get me extension, sent it to court, who are saying you didn't really need to do that as it's an agreement between you and them. Basically we don't really wanna know or care. You submit your defence when your ready and they'll submit a judgement when they're ready. if they go for one before end of extension then you can apply (cost money) to set aside (they'd be in breach too). What a pain!

 

Cheers

BS

[AndyOrch]

Hi Andy, thanks for your reply except I think I'm a bit more confused . can you tell me where I'm going wrong please?

 

I thought (from what I read on CAG):

 

a) If no compliance with CPR 31.14 & 31.15 request then I would apply for N244 to court requesting disclosure (and if non disclosure strike out.) and an extension. I thought they only had 7 days to comply with the CPR 31.14 request before moving to N244. (I never realised it depended on how the judge felt on the day, whether they agreed or not to it.) Its not a case of if the DJ agrees to it its the opposition the claimant will apply at the hearing the reasoning ( and can be from Council/ Barrister in some instances) think of those costs if your application is rejected!!!!!!!

 

b) Now I read it that they have up until defence day to comply with 31.14 request. How does this pan out then as you're suppose to have 7 days to peruse the docs aren't you i.e. how do I review my next move with no time? Disclosure can be throughout the whole trial, there is no rule that they must comply by your defence submission date, there is no rule that they must disclose to CPR 31 at all

c) Can I only ask questions regarding PART 18 of things that AREN'T referred to in the POC and NOT use it to ask questions about info on the docs that I have received (from CPR 31.14 & so POC)? Is it wise to do this or save it to help with defence i.e. don't bring their attention to things, so they can drum something out to help themselves battle the defence? You can question what ever you require within the CPR 18 (referred to or not)

 

d) I have some postable docs I could PM you if you require further info. Better to obscure the data and post here for all CAG to comment on?

e)By the sounds of it I don't do anything until defence date (except prep defence) and hope they disclose beforehand. If they do disclose beforehand (i.e. same day) I have zero time to look at and submit defence. if they don't disclose I have zero time to look at and submit defence. whatever happens even i submit a defence on defence day whether it's rubbish or not. By the sounds of it I'm gonna be saying "By the Power of Greyskull, i have a DEFENCE!" and that's it. (Sorry mate, if I don't laugh, i'll cry). Thats the way the game works hence the rather vague P.o.Cs, none disclosure is not a defence they will simply plead there is enough information contained within their P.o.C to make a decision... admit or defend. Not that I agree with that but thats when the use of a well drafted defence comes into play to open the chinks, cast doubt and undermine their claim.

 

f) I did get me extension, sent it to court, who are saying you didn't really need to do that as it's an agreement between you and them. Basically we don't really wanna know or care. You submit your defence when your ready and they'll submit a judgement when they're ready. if they go for one before end of extension then you can apply (cost money) to set aside (they'd be in breach too). What a pain! They wont request judgment if an extension has been agreed.

 

Cheers

BS

 

Regards

 

Andy

[Battlescars]

Thanks again Andy ( I seem to type that a lot).

a) so i guess you shouldn't do any applications then

b) i thought CPR 31.14 & 31.15 are part of the rules that's why it's part of the CPR? I get the not by defence date but if you've done it early enough surely you should receive the docs within 7 days as per these rules?

c)ok

d)ok

e)ok (feel like defending with an equally vague defence, maybe "No I never, prove it!" may suffice)

f)all ok there

 

Cheers

BS

 

 

BTW - e) I was joking

[AndyOrch]

Thanks again Andy ( I seem to type that a lot).

 

a) so i guess you shouldn't do any applications then. I'm not saying that but its timing and reason that's key.Every claim is unique and so are the actions

 

b) i thought CPR 31.14 & 31.15 are part of the rules that's why it's part of the CPR? I get the not by defence date but if you've done it early enough surely you should receive the docs within 7 days as per these rules? CPR31 works in line with CPR1 so even if they say cant or don't comply then they are in danger of breaching CPR 1 The overriding Objectives and the purpose of the whole of the CPR.With assigned claims they simply buy a debt from a printout there is no back room with all your docs in, they have to source them from the OC.

 

c)ok

 

d)ok

 

e)ok (feel like defending with an equally vague defence, maybe "No I never, prove it!" may suffice) Again you are making the statement that if they dont send the docs I cant defend thus basing a defence on their paperwork being incorrect or non-compliant or none disclosure.You must have the basis of a defence in the first place IE dispute or PPI or unfair charges etc.

 

f)all ok there

 

Cheers

BS

 

 

BTW - e) I was joking

See above

 

Regards

 

Andy

 

[Battlescars]

Hi Cag (hoping Andy will have a look to if able),

 

I have received the final response to my 31.14 request & due to file my defence next week 8 days.

Please can someone have a look at the attached docs (edited of course) and help me with prepping a defence or let me know best course of action now.

There is a few more attachments which I'll add in another post now.

I have a few questions on each and am willing to answer any too.

Copy of current T&Cs.pdf

Copy of Original T&Cs.pdf

31.14 response 2.pdf

DN.pdf

Original Signature form with some T&Cs.pdf

[Battlescars]

I am interested in:

 

1. current T&C's look nothing like original T&C's on what the agreement would have been based on

2. missing T&C's on original agreement(which have reference to interest rates in certain points so i think are pertinent)

3. miscalculation of APR in respect of table based on monthly rate on same doc i.e. missing 0.05%

4. PPI was ticked, can't see or remember doing/anything else about this apart from being p*ssed off when i realised I was paying it and subsequently called to cancel. That was after about 3 yrs. I have found some evidence of PPI payments made early on. (not claimed for these).

5. I have found late & overlimit default sum payments on my account. (not claimed for these).

6. OC sold to dc prior to remedy date on DN and before 14days. i have 3 separate docs to prove this.

7. dc are saying they have no noa on file due to corruption of data

8. never received noa from oc

9. I have been paying a token payments until claim form received

10. I have SAR from OC back after DN issued, and previous correspondence since my troubles began. kept all since.

11. they have sent me annual statement with costs of this claim added too - can they do that?

 

I just need help really with prepping my defence and how to word it.

I haven't requested anything since CPR31.14. Should I put a part 18 letter in with the above prior to defence?

Do I counterclaim?

 

I have lots more I can post up if more info required, let me know.

 

Hope someone picks this up,

 

Cheers

BS

NOA template.pdf

DOA.pdf

[NewToTheFight]

Start at the begining.

Did you sign an application form? If not then say so, if so was the application capable of being converted into an agreement? If not say so

Was the DN faulty, if not say so

Etc

 

IE

The defendant denies signing an agreement compliant with the Consumer Credit Act

The defendant neither confirms nor denies signing an application form which carried the terms required for such a claim form to be converted to a legally enforceable agreement and puts the claimant to strict proof that a legally enforceable written agreement exists or was ever signed.

The defendant avers that a compliant Default Notice was not served or received. The copy of the Default Notice received by the defandant is faulty in that there are not enough days to rectify, the account was sold to a company which could not offer credit services, the amount requested on the notice was incorrect etc etc

 

Just some ideas on how to start with building your defence

Bulit point the areas of weakness in their POC then present your points in opposition to them

Then find the right wording to say what you need to

 

Their paperwork has to be correct for them to get judgement. Yours has to show theirs is not compliant for you to defend

 

I hope this helps

NTTF

[Battlescars]

Thanks NTTF, appreciate you dropping in and your reply.

I think I get the jist.

I'll draft a defence up and stick it on, hopefully you can come and have a look at it and give me some pointers.

Been really stressful lately as not been able to study until this is done and dusted, which has knocked me back a few weeks!

BS

[Battlescars]

Hi, can someone please take a look at my Franken-Defence and let me know if it's good to go. Which I will be doing some point TODAY!

 

Please suggest any alterations needed or relevant inclusions I need to input. Thanks in advance.

 

BS

 

Defence DRAFT 1.pdf

[citizenB]

The attached judgment appears to be pretty useful in respect of those teeny strips claiming to be a "CCA".

 

Is there any contradiction in the terms and conditions? Are you absolutely certain that they have provided both the terms that should have been with the document at the signing stage and current.

 

The default notice - it appears that you have removed the dates.

 

The DN should allow you 14 clear days from receipt to remedy the breach.

 

Therefore the date of the DN should also include either 2 business days for 1st class mail or 4 business days for 2nd or UK Mail. Business days are Monday to Friday not including weekends or bank holidays.

 

So say the DN was dated on a Friday - you start to count from the following Monday eg 2 or 4 days for post does that then leave 14 calendar days to the remedy date?

 

I see that your DN says "17 days after date of issue". That is not permitted - a proper date must be given.. eg 5th January 2010

 

They can only ask for accrued arears - does the amount they claim is arears tally with the amount on the statement for that date ?

 

Cabot v Bachellier.pdf

[citizenB]

Your Defence claims that the DN states that the remedy is 14 days later.. from what I read.. it says 17 days!

 

Please make sure all your dates are correct in the Defence

[Battlescars]

The attached judgment appears to be pretty useful in respect of those teeny strips claiming to be a "CCA". Thanks CB, will look at that.

 

Is there any contradiction in the terms and conditions? Are you absolutely certain that they have provided both the terms that should have been with the document at the signing stage and current. Do you mean the original T&C's and current T&c's I posted above, they are saying these are the original & current. Then yes, Section 8 doesn't match up for a start and this is the "clause in breach" according to the DN. From the original it's section 3 & current section 8. default charge are section 13 and 3 respectively and £18 & £12. does any of this help, is this what you mean?

 

The default notice - it appears that you have removed the dates. Sorry, Issued 4th December, Remedy date 21st December, Sold 18th December.

 

The DN should allow you 14 clear days from receipt to remedy the breach. Sold before remedy date, and certainly not 14 days clear.

 

Therefore the date of the DN should also include either 2 business days for 1st class mail or 4 business days for 2nd or UK Mail. Business days are Monday to Friday not including weekends or bank holidays.

 

So say the DN was dated on a Friday - you start to count from the following Monday eg 2 or 4 days for post does that then leave 14 calendar days to the remedy date? Does that mean received at earliest 9th December. I put this in my defence i posted.

 

I see that your DN says "17 days after date of issue". That is not permitted - a proper date must be given.. eg 5th January 2010 It was a proper date, sorry. i was just wasn't sure who was watching, if you get my jist, on being identified. see above

 

They can only ask for accrued arears - does the amount they claim is arears tally with the amount on the statement for that date ? Claimed amount is only arrears and does tally with the statement on that date:|

 

[ATTACH=CONFIG]36485[/ATTACH]

 

Your Defence claims that the DN states that the remedy is 14 days later.. from what I read.. it says 17 days!

 

Please make sure all your dates are correct in the Defence Good spot, thanks, will amend that bit. Anything else? Do you see anything you recognise ?

[citizenB]

So they even terminated the account prior to the remedy date, which kind of makes a mockery of the statement that says..

 

"If the action required by this notice is taken before the date shown - no further enforcement action will taken in respect of the breach"

 

Then they take that action .. anyway and prior to the date shown !!

 

Righto.. I understand about the dates now - yes, in which case you appear to have covered that

 

Can you be absolutely certain the terms and conditions they claim are from inception are actually those!! Are there any dates that confirm this. I imagine the current t&cs are accurate as they started to keep copies once the Harrison v Link case crucified them

 

However in the Harrison v Link case - they confirmed that they had only started to keep accurate records from around 2009 !!

[Battlescars]

So they even terminated the account prior to the remedy date, which kind of makes a mockery of the statement that says..

 

"If the action required by this notice is taken before the date shown - no further enforcement action will taken in respect of the breach"

 

Then they take that action .. anyway and prior to the date shown !! Yep, and I have proof

 

Righto.. I understand about the dates now - yes, in which case you appear to have covered that

 

Can you be absolutely certain the terms and conditions they claim are from inception are actually those!! Are there any dates that confirm this. I imagine the current t&cs are accurate as they started to keep copies once the Harrison v Link case crucified them

In answer to your question, No, I can't be absolutely certain the T&C's they claim are from inception are actually those. It does have a reference at the bottom of them saying MB 12/00 which I suppose would fit?? these are the ones they are stating are the ones from inception. If so there is still a number of terms & conditions 1 & 2 which are only partly covered on the signature form. There seems to be several missing (if you can read it) and some relating to interest rates (i.e. interest rate applied except in condition 2.1 etc..) which is nowhere to be found.

 

However in the Harrison v Link case - they confirmed that they had only started to keep accurate records from around 2009 !!

 

see above CB, cheers

[citizenB]

Hmm, IMHO, then it seems as though there might be something adrift with the T&cs.. however, without specialised knowledge.. I wouldnt like to argue on them.

 

Hopefully someone with that knowledge will pop in, in time to assist.

[Battlescars]

Cheers CB.

 

What's your take on the NOA? see post 15 no.7. have letter regarding this. Seems a bit weird to me. Is it in respect to the case you sent me (read it now), in that the judge reckoned a NOA without a date would be valid?? What must the date on a NOA be before or after in respect of my case?