Claim Form received- AK on MBNA debt - Advice please

[citizenB]

Andyorch has you on his list for today

[AndyOrch]

Let me get up to speed on your thread and were you are at.

 

Regards

 

Andy

[AndyOrch]

The particulars of claim read as follows:

 

1.The claimant claims the sum of 5232.23 for debt and interest. On 26/08/02 the defendant entered into an agreement with MBNA for a credit card under reference xxxxxxxxxxxxxxxx.

 

2.On 31/08/12 the defendant defaulted on the agreement with an outstanding balance of 4,873.34.

 

3.On 24/10/12 the debt of 4,873.34 was assigned to Aktiv Kapital portfolio As Oslo Zug Branch.

 

4.Notice of assignment was sent to the defendant in accordance with s136 Law of Property act 1925.

 

And the claimant claims

 

1. The sum of 4,873.34

2. Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8.00% per annum

from 24/10/12 to 25/9/13 358.89, & thereafter at a daily rate of 1.07 until judgement or sooner payment.

 

######Defence######

 

 

Paragraph 1 is admitted with regards to entering into an agreement with MBNA for credit facilities the agreement also included PPI which was unsuitable as I was self employed..

 

Paragraph 2 is admitted because MBNA were and still are in default of my section 78 request dated xxx xxxxx xxxx.MBNA did not serve a Default Notice.

 

Paragraph 3&4 are denied as yet the claimant has failed to serve a Notice of Assignment accordance with s136 Law of Property act 1925 and therefore yet to prove they are entitled to bring this claim.

 

On receipt of this claim I requested a further section 78 request from the claimant dated xxx xxxxxx xxxx sent recorded and delivery and signed for on the xxx xxxxx xxxxx.The claimant has yet to comply.

Furthermore on the xxx xxxx xxxxx I requested copies of the documents referred to in the claimants particulars of claim by way of a Civil Procedure Request 31. PD 14.The claimant has yet to respond.

 

On the xxx xxxx xxxx I requested extra time to submit my defence by way of a CPR 15.5 to enable the claimant to comply with the above requests.The claimant responded they are unable to serve the information at this time but agreed to an 14 days to submit my defence......to start after they have complied with my disclosure requests and not stating an agreed time for submission.

 

It is my contention that the claimant has acted this way to frustrate and confuse my submission date to enable themselves to attain a judgment by default.

 

Therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

Until such time the Claimant can comply with my request for a copy of the agreement/Default Notice it relies upon they are prevented from enforcing or requesting any relief as pursuant to the CCA 1974

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief

 

 

 

Okay complete the dates marked xxxxxxxx and check for accuracy ...edit to suit if you are not happy with any of the above.

 

Copy and paste into MCOL and print a receipt of submission time dated.

 

Regards

 

Andy

[Ironroadman]

Done! Very many thanks Andy

 

IRM

[AndyOrch]

[Ironroadman]

UPDATE

 

Letter received today from Sols: "We write with reference to the above matter. as per your request, please find enclosed relevant documentation with regards to our clients claim. We look forward to receiving payment in full on or before 5th December]2013"

 

I wonder if the team could look at what they have sent and comment. Also advise as to how I should reply.

 

The photo copies they have sent of the application form are not good, I struggle to read it even with a magnifying glass, but see what you think.

 

Many thanks.

 

IRM

[citizenB]

IRM, you might want to follow the instructions below and post your documents up as pdfs.

 

 

Dx100 – Instructions on uploading pdfs

Scan the required letters/agreements/sheets

as a picture file

remove all personal info including barcodes etc. using paint

but leave all figures and dates.

Go to one of the many free online pdf converter websites

convert the image to pdf format.

or if you have PDF as an installed printer drive use that

open a new message box here

hit go advanced below the message box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

NB: you can set where it goes in the post by hitting insert inline.

Then hit reply button

 

[citizenB]

Is this supposed to be in response to your CPR or CCA request ?

[Ironroadman]

Is this supposed to be in response to your CPR or CCA request ?

 

Doesn't say, just says, "As per your recent request"

[Ironroadman]

Is this supposed to be in response to your CPR or CCA request ?

 

I sent a separate CCA request to AK and a CPR 31.14 to their Sols.

 

IRM

[AndyOrch]

Responding to your PM

 

What date was the agreement inception?

 

Regards

 

Andy

[Ironroadman]

Responding to your PM

 

What date was the agreement inception?

 

Regards

 

Andy

 

Thanks Andy July 2002

 

IRM

[AndyOrch]

Well in my opinion its deficient in the respect that the signature area is not contained within the prescribed terms...assuming the second part is separate added to the fact that its is barley legible.

[Ironroadman]

Well in my opinion its deficient in the respect that the signature area is not contained within the prescribed terms...assuming the second part is separate added to the fact that its is barley legible.

 

Thanks Andy. Yes I struggled to read it even with a magnifying glass! It does appear as though the terms are separate, if indeed they were there. How do you think I should reply to their letter?

 

IRM

[AndyOrch]

You dont ....did you refer to it within your defence?

[Ironroadman]

You dont ....did you refer to it within your defence?

 

Sorry, did I refer to what? The Agreement you mean? (My defence is at 53 of this thread).

 

IRM

[AndyOrch]

You referred to them being in default of your request now that they have complied then you expand within your witness Statement which will be a more particularised version of your defence of any deficiencies.

[Ironroadman]

You referred to them being in default of your request now that they have complied then you expand within your witness Statement which will be a more particularised version of your defence of any deficiencies.

 

Ok many thanks Andy, so I guess I wait to see their next move?

 

I have also noticed something else about the claim form that I don't want to put on here, prying eyes etc., that may or may not be an issue for them.

 

IRM

[Ironroadman]

UPDATE: A hearing date has been set for 12th June. I did apply for mediation through the mediation service, and have given numerous dates of availability, but last time I checked the other party had not been in contact with them, so I assume they want to press ahead, as they have paid the hearing fee. I have to now submit my documents to the court and the other party on which I rely. This is pretty urgent now as I have to submit by 13th May. I would appreciate any help as how best to word this. Do I now submit my amended defence? i.e. deficient agreement etc, PPI and charges etc.

IRM

[AndyOrch]

No.... you submit your Witness Statement as per my post #67 above and standard disclosure is by way of the N265 (see Legal Library).

 

Regards

 

Andy

[Ironroadman]

Sorry, don't quite understand. So do I mention the deficiencies and quote the relevant CCA sections in my statement?

IRM

[AndyOrch]

Yes your WS is your own words and particularises your Defence.....in depth

[Ironroadman]

Many thanks. I'll get that done and post it up. Perhaps someone would be so kind as to just have a look at it before I send it off.

IRM

[AndyOrch]

[Ironroadman]

This is my Witness Statement. It's quite long! See what you think

IRM

WITNESS STATEMENT

 

1. I Ironroadman , am the Defendant in this action. I am a Litigant in Person and make the following statement as my witness statement in support of my defence to the claim made by Aktive Kapital Portfolio.

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present inter alia:-

(a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. No particulars are offered in relation to the method by which the Claimant calculated any outstanding sums due, the details of any default notices issued or any other matters necessary to substantiate the Claimants claim.

(b) A copy of the purported written agreement that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, was not served with the Particulars of Claim.

© A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served with the Particulars of Claim.

4. On 21st August 2009, the Defendant wrote to MBNA with a formal request under s.77 (1) of the Data Protection Act 1974, requesting a copy of his Credit Agreement. This letter was sent Recorded Delivery, and signed for on 24th August 2009. MBNA did not comply with the request, nor did MBNA serve a Default Notice.

5. MBNA assigned the debt to Aktiv Kapital on 24th October 2012, the Claimants failed to serve a Notice of Assignment in accordance with s136 Law of Property Act 1925 and are therefore yet to prove they are entitled to bring this claim.

6. Upon receipt of this claim, the Defendant requested a further section 78 request to the Claimant dated 2nd October 2013, sent Recorded Delivery, and signed for on 4th October 2013. Furthermore on 4th October 2013 the Defendant requested copies of the documents referred to in the claimants particulars of claim by way of a Civil Proceedure Request 31. PD 14.

7. On the 12th October 2013 the Defendant requested extra time to submit his Defence by way of CPR 15.5 to enable the Claimant to comply with the above requests.

The Claimant responded they were unable to serve the information at this time but agreed to another 14 days to submit his Defence …. to start after they had complied with the Defendants disclosure requests, and not stating an agreed time for submission.

It is the Defendants contention that the Claimant acted in this way to frustrate and confuse his submission date to enable themselves to attain a judgement by default.

8. On 25th November 2013 the Defendant received a letter from the Claimant

in response to his request for copies of the documents.

The document purporting to be the agreement that was sent (Document 1) is illegible and almost impossible to read. Under the provisions of the Consumer Credit Act, section 78, the creditor, after receiving a request in writing to that effect from the debtor, and on payment of the fee, shall give the debtor a copy of the executed agreement, and any other document referred to in it. No documentation has been provided concerning the payment protection insurance, or any breakdown of how it is to be calculated.

Furthermore,

The Consumer Credit (Cancellation Notices and Copies of Documents regulations 1983 S2 (1) covers the legibility of notices and documents and wording of prescribed forms, and states:-

The lettering in every notice in a Form prescribed by these Regulations

And in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper.

Furthermore, the agreement does not comply with the Consumer Credit Act 1974, in regard to the prescribed terms.

The prescribed terms as defined by S60 of the Act for each part of the agreement must be shown separately & as required in Consumer Credit (Agreements) regulations 1983 (S1 1983/1553), amended by Consumer Credit (Agreements) (Amendments) regulations 2004 (S12004/1482).

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (S1 1983/1553) and are inter alia:

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating how the debtor is to discharge his obligations under the agreement to make repayments, which may be expressed by reference to a combination of any of the following—

1. Number of payments ;

2.Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

9. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms for each separate part of the agreement, as stated above, it is not compliant with section 60(1) of the Consumer Credit Act 1974 and therefore it is not enforceable by Section 127(3) of the same Act.

10. So there should be no misunderstanding, it is noted that the agreement referred to by the Claimant would have commenced prior to the inception of the consumer Credit Act 2006. It is therefore regulated by the Consumer Credit Act 1974 S127 as Schedule 3 S11 of the Consumer Credit Act 2006 prevents retrospective application of S15.

The court’s attention is also drawn to the authority of the House of Lords in Wilson-v-First County Trust (2003) All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (S1 1983/1553) and Consumer Credit (Agreements) (Amendment)

Regulations 2004 (S12004/1482) the agreement cannot be enforced by the court.

“Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where a lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance’

In addition, there is case law from the Court of Appeal which confirms the prescribed terms must be contained within the body of the agreement and not in a separate agreement – the judgement of TUCKEY LJ in the case of Wilson v Hurstanger Ltd (2007) EWCA Civ 299:

“33 In my judgement the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirements under S61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest way mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (iincluding information contained in the minimum terms) are to be found in Schedule 1”.

11. The Claimant is therefore put to strict proof that a compliant document exists.

12. Should the issue arise where the Claimant seeks to rely upon the fact that they can show that the Defendant has had benefit of the monies and therefore the Defendants are liable, reference is made to the judgement of Sir Andrew Morrit in the case of Wilson v First County Trust Ltd – (2001) 3 All ER 229, (2001) EWCA Civ 633 in the Court of Appeal

’26. In effect the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms --- must (in the light of the provisions in s65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid’

13. The Claimant is put to strict proof that any Default Notice sent to the Defendant was valid. To be valid, a default notice needs to be accurate in terms of both scope and nature of breach and include an accurate figure required to remedy any such breach. If the breach is capable of remedy , it must also specify a date not less than 14 days after the date of the service of the notice by which that action must be taken. The prescribed format for such a document is laid down in Consumer Credit (Enforcement, Default and termination Notices) (Amendment) regulations 2004 (S1 2004/3237).

14. The Defendant denies receipt of a default notice, and puts the Claimant to strict proof of date & method of mailing such.

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services v Swain and Co – (2001) GCCR2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to the Defendants credit rating (Kpohraror v Woolwich Building Society – (1996) 4 All ER 119)

15. On 21st August 2009 the Defendant submitted to MBNA a Subject Access Request under The Data Protection Act 1985, requesting statements relating to this account. This letter was sent Recorded Delivery, and signed for on 24th August 2009. This request to date has not been met by the claimant. The Defendant has reason to believe the amount cited in the claim may be based on the Claimants incorrect calculation & also include unlawful penalty charges. The Defendant therefore disputes the accuracy of the sum claimed.

CONCLUSION

16. Notwithstanding the fact that no valid credit agreement showing the prescribed terms which complies with the Consumer Credit Act 1974 and subsequent Regulations made under the Act

And the fact that the agreement does not comply with S2 (1) of the Consumer Credit (Cancellation Notices and Copies of Document s) Regulations 1983

The Defendant respectfully requests the court to give consideration to striking out the Claimants case pursuant to CPR 3.4:

(2) The court may strike out a statement of case if it appears to the court-

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been failure to comply with a rule, practice direction or court order.

17. If the court considers such action inappropriate, it is requested that the court orders the Claimant to produce an original legible credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983, and The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice the defendants right to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights act 1998.