Arrow court claim - MBNA Card debt

[chinawhite1]

Hi,

I received court forms from arrow global to which I sent in a defence, basically i requested CCA and they couldnt find it - they then sent me a letter saying as they couldnt find CCA they would not take legal action in the future. I put this in my defence but am I right in saying I have lost my defence ?? and that this form is them taking me to small claims court ??

 

I thought that if they couldnt produce any CCA then they couldnt take me to court ?

 

Any help appreciated as im totally at a loss

 

many thanks.

[Bandit127]

So that the experts here can provide accurate advice, please could you supply some further information?

 

They will need the particulars of claim posted up (with identifying info removed and amounts rounded up). As you have already submitted a defence, please post that up too. That is most important as your question is based on it.

 

Each case is individual so please post up to allow the experts to give you the best advice.

[chinawhite1]

Hi it was originally an MBNA debt and they never provided the CCA - was then passed on to various debt collectors , I have correspondence saying they cant find CCA and so wont take any further action until such time as they do - received a claim from arrow global through northampton court using shoosmiths - sent in defence below - received notice of change of solicitor - then received form N149 - claim was for about £1859 but not got exact amount - any advice appreciated and hope this info is sufficient but let me know if not thanks

 

 

On the 1/8/2009 I requested a copy of the CCA for this account. I

heard nothing so requested further copies on 1/12/2009 and

7/01/2010. On the 15TH Jan 2010 I received letter from MBNA saying

they would respond to my request in due course. During this time

and following on from receiving this letter I continued to receive

harassing calls, both at home and at work. In June 2010 I sent a

letter to MBNA complaining of the lack of correspondence and the

harassing calls. They then sent a letter to me apologising for the

calls and saying that response to request for CCA would follow

separately. I never received a response.

On 13th October 2010 I received a letter from MBNA stating the

following. We refer to your request under s78 of the CCA 1974.

Unfortunately we are unable to comply with your request. For so

long as this continues, we will not issue court proceedings

against you to recover the amount owed to us..........

I have still never received any copies or correspondence relating

to my copy CCA.

I have copies of all correspondence described above and can supply

these.

As I have still not received any copy of my CCA for this account

and as they have previously stated they would not issue court

proceeding my only option is to defend this claim.

[Bandit127]

Can you confirm if this account was started before 6th April 2007? (You can check on Noddle which is free for life if you need to).

 

Your defence OK, but it is a bit unconventional so I will flag your thread for the attention of the site team.

[chinawhite1]

Hi yes it was before the 6th April 2007 - would you mind me asking why my defence was unconventional ? thanks for your time

[Bandit127]

I am not an expert but defences normally follow the particulars of claim (which is why I asked you to post those up).

 

They claim:

The defendant entered an agreement with a bank for a credit facility.

You defend:

The claimant has failed to prove the defendant entered in to an agreement.

 

An so it goes on through the particulars.

 

Your defence boils down to the fact that they are in default of your CCA request. Hopefully this will be sufficient (it should be - but you might need a good judge).

 

Hopefully the experts can help you add some more weight.

[Bandit127]

Form N149 is an Allocation Questionnaire. Most of the responses you need to make will be the same for anyone who is defending a case in England/Wales and resident in England/Wales.

 

You should do a search on allocation questionnaire in the search box (top right of the page).

 

Look for posts by AndyTorch - he is an expert.

[chinawhite1]

Hi thanks for replies and will do search - just not sure why I would have lost defence if they have no paperwork (CCA) ! ?

[citizenB]

Hi it was originally an MBNA debt and they never provided the CCA - was then passed on to various debt collectors , I have correspondence saying they cant find CCA and so wont take any further action until such time as they do - received a claim from arrow global through northampton court using shoosmiths - sent in defence below - received notice of change of solicitor - then received form N149 - claim was for about £1859 but not got exact amount - any advice appreciated and hope this info is sufficient but let me know if not thanks

 

 

On the 1/8/2009 I requested a copy of the CCA for this account. I

heard nothing so requested further copies on 1/12/2009 and

7/01/2010.

 

On the 15TH Jan 2010 I received letter from MBNA saying

they would respond to my request in due course. During this time

and following on from receiving this letter I continued to receive

harassing calls, both at home and at work.

 

In June 2010 I sent a

letter to MBNA complaining of the lack of correspondence and the

harassing calls. They then sent a letter to me apologising for the

calls and saying that response to request for CCA would follow

separately. I never received a response.

 

 

On 13th October 2010 I received a letter from MBNA stating the

following. We refer to your request under s78 of the CCA 1974.

Unfortunately we are unable to comply with your request. For so

long as this continues, we will not issue court proceedings

against you to recover the amount owed to us..........

I have still never received any copies or correspondence relating

to my copy CCA.

 

 

I have copies of all correspondence described above and can supply

these.

 

 

As I have still not received any copy of my CCA for this account

and as they have previously stated they would not issue court

proceeding my only option is to defend this claim.

 

Can you please answer the following questions.

 

What does the claim form actuall say - eg.. why have they issued the claim ? the block of text that is to the left and down a bit.

[citizenB]

Did you receive a Notice of Assignment from Arrow Global saying that they were now the new owners of the debt.

 

I can see that MBNA are up to their tricks again.. they have said that they will not take any action whilst they are in default of an s78 request.. but failed to mention that anyone they sell might try their luck.

 

I will also send out an S.O.S for you.. dont do anything with your Allocation questionaiire for a bit.. when do you need to get it back to the court ?

[AndyOrch]

N149 AQ Edit to suit

 

A

Tick 'Yes'

 

B

Tick 'No'

 

C

Tick 'Yes'

 

D

Nil

 

E

Tick 'No' and ignore the remainder of section E

 

F

If you are going to be unable to attend a hearing at any time between say 1 October and 31 January, tick 'Yes' and identify those dates in the box adjacent to 'Yourself', otherwise tick 'No'

 

G

 

1.Following numerous requests during 2009/10 for a copy of the agreement by way of a section 78 request. the claimant failed to comply or even respond.On 13th October 2010 I received a letter from MBNA stating the

following. " We refer to your request under s78 of the CCA 1974.Unfortunately we are unable to comply with your request. For so long as this continues, we will not issue court proceedings

against you to recover the amount owed to us."

 

I still have not received any copies or correspondence relating to my section 78 request and therefore the Claimant is and remains in default and is unable to enforce the agreement whilst the default remains.

 

2.Unless the Claimant can provide a signed executed copy of the agreement and a valid Default Notice,I will make application for the claim to be struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

 

 

H

Tick 'No'

 

I

Sign, date and fill in your address at which you want documents to be served.

 

 

Without sight of the Particulars of Claim section G may not be suitable and should be edited to enforce the defence salient points in response to their particular pleadings

 

Regards

 

Andy

[chinawhite1]

Hi citizenb

particulars are these i think

"claimants claim are for the sum of £1816.23 being monies due from the defendant to the claimant under a regulated agreement between the defendant and MBNA and assigned to the claimant on 20th December 2011 notice of which has been provded to the defendant

"the defendant has failed to make payment in accordance with the terms and conditions of the agreement and a default noticehas been served pursuant to the consumer credit act 1974

"the claimant claims the sum of £1816.23

"C has complied as far as necessary with the preaction conduct in practice direction . Number

 

I cant remember if they sent a notice of assignment and i think i prob did get a default notice on the debt

 

has to be back in by 10th december

 

thanks

 

 

and andyorch,

 

is the G section exactly what I should put my form - word for word ?? sorry if its an obvious question but just want to make sure

 

many many thanks.

[AndyOrch]

Section G should be a short synopsis of your defence aand points to assist the DJ in directing the claim... I'm not aware of the defence you submitted just assisting with the AQ

 

Andy

[chinawhite1]

Hi Andy ,

thanks, the defence i submitted is above, would you mind reading it and giving me a few pointers in how to word better - im struggling a bit with making it sound more "to the point" without making a mess of it

 

thanks for your help

cw

Edited November 30, 2012 by chinawhite1

[Bandit127]

China - please edit your post and remove your real name.

 

Andy - please see a copy of the defence that China has already submitted in post #3.

 

China - your defence is not "lost". But if they do find your agreement before the hearing it will loose any merit.

[AndyOrch]

I have edited G Chris to incorporate the salient points of your defence.

 

Regards

 

Andy

[Bandit127]

Once your defence has been submitted there are problems changing it - I think there are implications on what costs are awarded to which party.

 

Andy has given you some good words to put in your AQ form. This should give the opposition some food for thought and may put them off.

 

If not - you are a "litigant in person" so you should have a bit of help from the judge. If they do not turn up with an agreement you have a solid case. If they do manage to find and agreement (unlikely) then the judge should insist that they have to produce the Default Notice too.

 

The judge may well also take issue with the letter that said they will not issue proceedings while they do not have an agreement. Please keep this safe and (if this does get to court) be prepared to show it to the judge.

[chinawhite1]

Hi thanks to you all so much for your help and hard work - Andy thanks for your help with section G -

I will get the form completed and returned and let you know the outcome - once again thank you as I could not have done this on my own.

 

Regards

 

CW

[Bandit127]

Good luck from me and please keep us posted.

[chinawhite1]

Hi I posted my form and yesterday I received fro Arrow Global a copy of their allocation questionnaire - with covering letter urging me to contact them directly in a bid to resolve issue and arrange a payment - do I need to do anything with this or is it just a copy for my records ?

 

Thanks

 

CW

[citizenB]

Their copy of the AQ is indeed just for your records, did you send them a copy of yours? It is not a mandatory requirement, just a courtesy really. I am quite surprised that Arrow have actually sent you a copy of theirs.. they dont usually

 

Hmm, so they want to negotiate/mediate..

[citizenB]

In theory, there is an issue with the noncompliance of the s78 request and again, in theory, the Judge should dismiss the case.

 

However, one can never say what is going to happen on the day.

 

Might be worth waiting for others to comment / advise before you take any action that you might regret later.

[citizenB]

The following was posted on another thread - if you read the judgments linked - you will see that s78 requests were outstanding at time of claim.. and the judge has found in the favour of the consumer.

 

I wonder if you might be able to negotiate a settlement to your advantage ? As I say.. perhaps wait for others to comment.

 

If MBNA are in default of your s78 request, then it is my understanding this claim should never have been issued. See Phoenix v Kotecha

 

[ATTACH=CONFIG]39859[/ATTACH]

 

and Cabot v Bachelier

 

 

[ATTACH=CONFIG]39861[/ATTACH]

 

 

If you could post up the information requested by Bandit, then we can let you know your timeline.

 

Did you receive a Default Notice - was it compliant with the regulations. See Harrison v Link

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

[chinawhite1]

Thanks for your replies, I didnt send them a copy of mine - I dont think i will be negotiating with them as they can not produce any paperwork !!!

 

CW

[citizenB]

Thanks for your replies, I didnt send them a copy of mine - I dont think i will be negotiating with them as they can not produce any paperwork !!!

 

CW

 

Fair enough