Claim Form DLC/Hillies old-MBNA credit card *** Settled by Tomlin Order***

[Alloyz1]

Hi

 

Received a NCC Claim Form today for a Credit Card Debt, over 5k. I have my arguement pretty much laid out but would really like to go through it with someone on here please.

 

Very Very Briefly- It is 3yrs into the dispute so the letters and information I have are considerable but I have kept extremely detailed records of all correspondence.

 

I have a copy of the actual application form which I signed and I have challenged the validity of the terms and conditions from day one. I have been supplied with 3 seperate terms and conditions which change everytime I have pointed out a legal flaw.

 

I believed the new owner was simply changing the terms everytime I made a challenge, so I went back to the original owner who has confirmed in writing 'twice' a set of terms which are non compliant were the terms in place at the time of signing which is contrary to what the new owner is stating.

 

Could I also have some guidance on the court process please.

 

I will be acknowledging the service on Monday and also filling in the Defence form shortly after. I presume the section entitled Defence on the defence form is for a brief overview of my defence?

 

If so, when non compliant terms and conditions in respect of CCA74 are the dispute how is it best to word it breifly?

 

Also what is the form I should send my detailed defence on please?

 

How do you apply for the extension to 28 days, or that automatic when you send the Acknowledgement of service back?

 

Should I be asking the claimant for any information they will rely on in court at this stage? If so what is the best process for this please?

 

I am going to have a look around to get myslef up to speed on current rulings and the like including processes etc so won't be expecting others to do the leg work, but I would really appreciate any feedback, advice etc.

 

Many thanks

 

Alloyz

Edited February 2, 2013 by Alloyz1

[Guest]

when was the application form that they rely on/you mention?

any missold ppi?

compliant default notice?

type up their particulars of claim, round up amounts and exclude any personal identifiables.

if you want to ask them for the docs they mention in their particulars could do a cpr 31.14 request (see sticky). and when doing so if want to give them more than the cpr 7 days give them a further 7 (or whatever) days conditional upon them agreeing in writing to a specific extension to the defence deadline to xx/xx/xx (being up to 28 days from original deadline). once, if, received confirmation of agreed extension, forward a copy to the court.

Edited February 2, 2013 by Ford

[Alloyz1]

Hi Ford

 

Many thanks for the reply

 

The Claim Form I have received is a N1CPC

 

Particulars:

 

The claimants claim is in respect of a Credit Agreement facility number xxx provided by xxx at the defendants request on xxx. The agreement was subsequently defaulted.

Failure to meet requests for payment resulted in the account being terminated. On xxx all legal and beneficial interest for the monies were assigned to xxx.

The defendant was duly notified in writing of the assignment and the balance of 12k was due. The balance of 12k remains owing from the defendant.

 

Default notice non compliant on remedy time allowed and they sold the account during remedy time given.

 

I will read up on CPR 31.14 and the extension times before doing anything.

 

Alloyz

[Alloyz1]

Apologies Ford for not addressing all of your questions:

 

Application filled in circa 2001

 

I will look to see if PPI was included.

[AndyOrch]

Take a read here and digest Alloyz http://www.consumeractiongroup.co.uk/forum/showthread.php?356814-The-Process-of-Litigation..-Court-Claims-Defences.

 

Regards

 

Andy

[Alloyz1]

Very much appreciated Andy

 

A

[Alloyz1]

Hi

 

Could I have some advise please.

 

I am about to acknowledge service (issue date 31st Jan). On the N1CPC section 3 it requests my defence.

 

My defence will centre around the terms and conditions the DCA states were in place at the time of signing. They were not being part of the agreement when I signed the application form. In fact they were not actually the terms in place at that time.

 

I have written confirmation from the OC the terms the DCA state were in place were not in place and the OC have confirmed which set of terms were in place. I have previously explained to the DCA why the terms the OC state were in place do not conform to the appropriate regs also why the terms they still maintain were in place also do not comply.

 

With this going on for 3 years its a bit complicated and there are lots of correspondence. I have answered every letter (with advise from here) and believe I have them in an untenable position (but have it summarised in some notes I have made since day one). Although these notes do not need to be on N1CPC they will be the foundation of my defence. I will paste below so they can be reviewed and in the mean time any advise on the brief summary I need to put on the Acknowledgement of Service/ Defence N9B would be most helpful.

 

I have letters from the DCA and OC to prove the defence I will be submitting and after acknowledgement of service would really like to go through the defence with a fresh pair of eyes and with someone who is more knowledgable than I.

 

The text below may not make a great deal of sense!! I will be putting a date order file together in the next week to be able to allow a Judge to follow in chronological order.

 

 

1.

1st Supplied 6th Oct 2009 by CREDIT CARD CO a document entitled “Credit Card Agreement Regulated by the Consumer Credit Act 1974” stated as up to date Terms and Conditions and a copy of the original Application with the Financial and Related Conditions supplied and on the reverse.

 

A.

The Financial and Related Conditions supplied and stated as on the reverse of the application are not mentioned once throughout the entire application.

 

The applicant cannot be deemed to have read and understand them if they are unaware of their existence. The applicant is not required, on the application form, to sign that he has read and understood or even seen the ‘Financial and Related Conditions’.

 

The Application was filled in whilst visiting a Service Station and was on a clip board. The rear was not pointed out to me verbally or referenced in the application and was not visible before or after signing.

 

A copy was not provided at the time of signing and a copy was not provided after.

 

B.

There is reference of the CREDIT CARD CO Credit Card Terms and Conditions in the declaration section; however documents with this title have not been supplied and were not supplied whilst applying.

 

2.

Supplied 12th February 2010 by CREDIT CARD CO a Default Notice dated 8th February 2010

 

A.

Default Notice sent 2nd Class.

Date of service is therefore 4 days after posting and therefore 12th February 2010. The remedy time is 14 clear days AFTER service. Therefore, remedy date should therefore have been 26th February 2010 (13th Feb to 26th Feb).

 

This is a point of law and makes the default notice invalid in accordance with Consumer Credit Enforcement, Default and Termination, Notices Regulations 1983 (Schedule 2, section 3,c) as the remedy date is before 26th Feb.

 

B.

Aside from the allowable time to remedy the breach being insufficient to render the Default Notice valid, the account was sold inside the Default period (I was notified of the sale to XXX on the 19th February 2010),

 

Regardless of prejudice to remedy, this a point of law and contrary to the statement in the Default Notice where it states the account will be sold on or after the date shown and more importantly contrary to the Consumer Credit Act 1974 s87 (1) (a).

 

3.

Supplied 6th Sept 2010 by CREDIT CARD CO and 22nd December 2010 by New Owner a document entitled “Terms and Conditions” which are now stated as Original Terms and Conditions with a reference number of MB 04/01, a copy of the original Application with Financial and Related Conditions supplied on the reverse and a document entitled “Credit Card Agreement Regulated by the Consumer Credit Act 1974” stated as up to date Terms and Conditions.

This document has a reference number in the bottom left hand corner. This reference number is MB 04/01. This is suggesting they were current for the period of April 2001, 1 month previous to my Application.

 

A.

The document entitled “Terms and Conditions” supplied on 6th Sept 2010 by CREDIT CARD CO and New Owner on 22nd December 2010 and both stating these are the Original Terms and Conditions at the time of signing the Agreement are not referred to once throughout the entire application form and could be for any Agreement or Application.

 

B.

The Financial and Related Conditions on the reverse of the application form, condition 4 states in relation to “repayments” ‘...except as mentioned in 2.4, 3.5 and 3.6’.

 

In the document entitled “Terms and Conditions” supplied on 6th Sept 2010 by CREDIT CARD CO and New Owner on 22nd December 2010 and both stating these are the Original Terms and Conditions at the time of signing the Agreement, there is the absence of a condition 2.4, 3.5 and 3.6 in the documents you have supplied to me.

 

Repayments are a Prescribed Term and as instructed by s61, should be included in the Agreement document.

 

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

C.

In the document entitled “Terms and Conditions” supplied on 6th Sept 2010 by CREDIT CARD CO and New Owner on 22nd December 2010 and both stating these are the Original Terms and Conditions at the time of signing the Agreement, it states “please refer to your credit agreement for conditions 1 and 2”. This document then starts at condition 3.

 

On the Application it states “set out in paragraphs 1-15 are “some” of the provisions contained in Conditions 1 and 2 of the CREDIT CARD CO Credit Card Terms and Conditions”

 

Paragraph 1-15 relates to “some” of the Prescribed Terms Condition 1 and 2 contain.

 

Prescribed Terms must be included in the Agreement documents and there is a lack of the full conditions 1 and 2 to be found in any documents supplied.

 

4.

Supplied 18th February 2011 by New Owner 2 documents, one entitled “Terms and Conditions of the CREDIT CARD CO Credit Card and Credit Card Cheques” and the other without title.

 

After I provided a legal argument why the previous 2 sets of documents referred to as Terms and Conditions rendered the Agreement unenforceable, I have now been supplied with 2 further documents, one entitled “Terms and Conditions of the CREDIT CARD CO Credit Card and Credit Card Cheques” the other without title and New Owner state these are from the original lender.

 

These documents are not set out in any logical format:

• The larger, titled document runs from Term 1 to 3.4. There is an absence of Term 4, 5, 6 and resumes at Term 7.4.

• The smaller untitled document whilst virtually illegible duplicates Terms 3.5 to 7.3.

 

The smaller document is illegible at A4 size.

 

I have never been supplied with the documents previously at all.

 

Neither is referred to in the application once by title.

 

 

5.

Supplied 17th June 2011 (dated 26th May 2011) by CREDIT CARD CO, after my request to CREDIT CARD CO to confirm the terms and Conditions supplied on the 6th Sept 2010 were the ones in force at the time of signing the application.

 

A.

I doubted the original lender did supply New Owner with the above documents in 4 therefore I asked CREDIT CARD CO to re-confirm the Terms and Conditions in force at the time the application was signed. The same copy as supplied in theirs and New Owner letters on 6th Sept 2010 were supplied and confirmed as the ones in force at the time of signing the application.

Therefore please refer to 3 A, B and C.

 

B.

New Owner have stated the original lender has supplied the previous terms and conditions in 4. This is contradicted in 5 by the CREDIT CARD CO. If they take these to court, and state the OC supplied them have they not committed perjury.

[Guest]

isue date 31 jan? so afaik, you have a bit of time. acknowledgement of service within 14 days of service, then get a further 14 days to submit a defence?

 

as the matter is prior to april 2007, then section 127 (3) (4) consumer credit act would apply. ie the claimant would ordinarily be required to show compliance with that section, otherwise no enforcement order. ie that there was a signed doc that contained all of the prescribed terms. there is cae law supporting that.

there is also case law re the need for a compliant def notice.

have you previously done a section 77/78 cc act request for the agreement? any reconstituted agreement sent in response to this request should be accurate. again, case law supporting that.

see what others say.

[Alloyz1]

Hi Ford

 

In agreement with all of that.

 

I did a CCA request early doors an have received the actual copy of the application (not a reconstituted) which is the ideal scenario as it is non compliant, I am the defendant which again is ideal for burden of proof reasons and I have had 3 different sets of terms and conditions all have been said to be the ones in place at the time of signing by the DCA (they send a new set once I have pointed out their legal flaws). I also have a letter from the original creditor who have confirmed on two seperate occasions which terms and conditions were in place, which are different from the ones the DCA are now saying were in place and are probably the most non compliant of the 3 sent.

 

All in all they seem to have tied themselves into a knot!!

 

I really could do with the brief wording for the initial defence on the acknowledgement of Service response to ensure I encapsulate everything that matters.

 

many thanks

 

Alloyz

[Guest]

.......

I really could do with the brief wording for the initial defence on the acknowledgement of Service response to ensure I encapsulate everything that matters.

 

many thanks

 

Alloyz

 

don't think there needs to be an 'initial defence' submitted when acknowledging service, defence would then have to be in by the end of the further 14 days? ie 33 days from date of issue?

[Alloyz1]

Ok, so you acknowledge service first (form N9CPC) and the defence form included in the claim pack is sent in with your full defence (N9B(CPC))?

 

I thought the defence form needed to be sent back with a brief idea of the defence, but on retrospect it seems to make sense to send it in with your full defence, as there is a section on the acknowledgement of service where you indicate your intention to defend.

 

Thanks

 

A

[Alloyz1]

Hi

 

Ok service date was 31st Jan, Acknowledged Service today and my intention to Defend.

 

I intend to request an extension of time from the claimant. Am I right in thinking this is when I send a CPR31.14 request? I will be reading Andyorch notes so it will most likely tell me in there.

 

Once they agree to the extension (if they agree) It is my responsibility to notify the court? Can this be done online as I did not see a section for that (although I did not pay a great deal of attention to whether I could).

 

Can I view their documents they will be using in court online or is this postal only?

 

Many thanks for the advice

 

Alloyz

[Guest]

service date or issue date? remember 28 days from deemed service (service deemed 5 days after issue date, ie 33 days from issue date.)

an extension request (re civil proc rule 15.5) can be done independently of 31.14 letter if so required, but can be included in the 31.14 'letter' if doing. edit the letter to suit re a specific def extension date.

yes, you need to notify court forwarding copy of their extension agreement, with a specific date to avoid any ambiguity. done by email or snail mail.

if they respond to your 31.14, they send docs to you, so would prob be by mail.

Edited February 5, 2013 by Ford

[Alloyz1]

Thanks for that

 

A

[Guest]

Ok, so you acknowledge service first (form N9CPC) and the defence form included in the claim pack is sent in with your full defence (N9B(CPC))?

 

.

 

Thanks

 

A

 

defence can be submitted online via MCOL (if within their word limit)

[Alloyz1]

defence can be submitted online via MCOL (if within their word limit)

 

So if you need more than 122 lines, as per online quota, you need to do it by post?

[Guest]

or email. yes i think so?

[creditcardmug]

If you have done the AOS on MCOL and are defending all then you have 28+5 days from the issue date at the top of the claim form to file your defence

It sounds like you are going to defend on the grounds that the prescribed terms are not on the page you signed (the application form)

And that the default notice was not compliant with CCA 1974

Suggest you look at my threads re nationwide and barclaycard/clfinance in legal successes

Can you say which creditcard and roughly how old the card is?

[Alloyz1]

Hi CCM (nice name!)

 

2001 MBNA

 

No, my defence is not regarding the T&C were not on the page I signed but I do have a non compliant DN.

 

The DN these days is neither here nor there despite them falling below standards required. Apparantley if you were not prejudiced by the early selling or too shorter remedy time then its tough!! which makes a mockery of the actual legalities!!

 

My defence centres around:

 

3 sets of terms supplied so far

the 1st set we have established are current terms so non consequencial to the case

 

2nd set supplied to me as the 'ones in place at the time of signing' by both the OC and new owner have 2 clauses incomplete (dont want to say too much at the mo)- just putting all bundle in order).

When I pointed this out to the new owner, they produced a 3rd set saying apologies it was this 3rd set that were in place and they obtained them from the OC!!

 

I had a solicitor write to the OC and said what the new owner now says (about the 3rd set the new owner produced) and the OC confirmed the 2nd set were in place (which have incomplete clauses!!) and I have this in writing!!

 

Alloyz

[Alloyz1]

Does this edited CPR 31.14 and 15.5 version seem ok?

 

Basic Question:- When would I get to see everything they will be relying on in court (or is this it??)

 

Date: 6th Feb 2013

 

Dear Sir,

 

Re: (XXXXX) v (XXXXX) Case No: XXXXXX

CPR 31.14 Request

 

On XXXX 2013 I received the Claim Form in this case issued by you out of the Northampton County Court Bulk Centre

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached. This includes the terms and conditions appertaining to the agreement.

 

2 the assignment

 

3 the default notice

 

4 the termination notice

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any versions to include an obligation to recover and preserve such version which is now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request.

 

Pursuant to CPR 15.5, to allow you time to collate the documents and allow me time to receive the documents and review them and then formulate my defence, your statement should be accompanied with a statement that you agree to an extension of the time for me to file my defence. I suggest an extension to 2nd April 2013 which is calculated as; Issue date 31st Jan 2013 + 5days for service (5th Feb2013) + 14days for Acknowledgement of Service (19th Feb 2013) + 14days for submitting defence (5th Mar2013) + 28days Extension (2nd April 2013).

.

If you are unable to comply with this extension request and believe that you will never be able to comply with this request, you must tell me in writing. This will give me the opportunity to request the extension from the courts.

 

Please note that if you should fail to comply with my document request, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Kind regards

[Guest]

re 'basic question' - re disclosure, later (if it continues)

[creditcardmug]

When it gets to the allocation questionaire stage you can put together a draft order for directions for the judge to consider, in it you should say the claimant must "file and serve" the docs you require...this means they have to send the docs on which they will rely by x date otherwise the case be struck out

[Guest]

usually that would be an option re their failure to comply with 31.14 and not sending the docs mentioned as requested (if they exist), (and w/b for the j whether to direct as such or not). so, not necessarily all what they 'rely on' as such as full disclosure later is re the required disclosure rules. but yes the main docs seem to be those requested. there would also be the witness statements etc.

Edited February 6, 2013 by Ford

[Alloyz1]

Thank you Ford and CCM

[Guest]

otherwise, letter seems ok? (good you have specified a date re extension, avoids any poss ambiguity)

Edited February 5, 2013 by Ford