Claim Form From MKDP/Barclaycard Debt

[iyam71]

My partner recently received this. It's for a debt which was originally around £9000, but with interest/charges is now £9858. With the court fee the total amount exceeds £10000.

 

POC:

 

The claimant claims the sum of ****.** being monies due from the Defendant to the Claimant under a regulated agreement originally between the defendant and Barclaycard.

 

The Defendant's account number was **************** and was assigned to the Claimant on 17/9/2012, notice of this has been provided to the Defendant. The Defendant has failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to the Consumer Credit Act 1974.

 

The Claimant claims the sum of ****.** and costs.

 

The Claimant has complied, as far as is necessary, with the pre-action conduct practice direction.

 

There seem to be no errors in the POC, unlike the other MKDP claim I'm dealing with. The credit card was taken out around 13/14 years ago and was originally with Providian, then Monument before passing to Barclaycard. Hopefully this might make locating the CCA (if it exists) more difficult.

 

I've sent the CCA and cpr 31.14 requests off, along with a SAR to Barclaycard. Have also done the acknowledgement of service on MCOL intending to defend the claim.

 

Any advice on dealing with this would be most welcome, especially anything I may have overlooked at this early stage and further down the line the defence.

 

Having just been browsing some of the other threads on here I noticed someone being advised to write 'I do not acknowledge any debt to your company' at the top of a CCA request. Is this particularly important? Too late to alter anything now obviously but I'm wondering what the significance of this is, as surely that would be something that you would point out when submitting a defence.

[AndyOrch]

Its really just to ensure you do not acknowledge if the debt has been assigned and you have not made payment or response since the assignment and the debt is coming up to statute barred.

[iyam71]

OK cheers Andy. Only just over 2 years since last payment made anyway.

[iyam71]

Received a reply to the CCA and 31.14 requests yesterday. They cannot provide the documents and are attempting to retrieve them from the original creditor. Is this usual? And more to the point, is it of any use in the defence?

[AndyOrch]

Very usual..they never expect you to defend...hope BC have them:razz:

[iyam71]

So if the defence needs to be submitted by the 25th June (issue date was 23rd May) and I don't receive the SAR in time, am I correct in thinking an embarrassed defence is what I need to look at here?

[AndyOrch]

Holding defence....no such thing as an embarrassed defence.This puts them to strict proof to disclose the documents that their claim relies upon along with your dispute as to why you deny the claim.

 

Remember a defence is not based on what they can disclose and cant....it should be based on why you dont think you owe the debt.

 

Andy

[iyam71]

OK. I've done a rough draft using a holding defence you gave another poster cut and pasted with bits of the defence used in my other thread. Any feedback would be appreciated as I'm not 100% on exactly what to include/discard.

 

Claimant (MKDP) v Defendant (**** ****) Claim no. ****

 

 

 

 

 

1.The claimant claims the sum of ****.** being monies due from the Defendant to the Claimant under a regulated agreement originally between the defendant and Barclaycard.

 

2.The Defendant's account number was **************** and was assigned to the Claimant on 17/9/2012, notice of this has been provided to the Defendant.

 

3.The Defendant has failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to the consumer credit Act 1974.

 

4.The Claimant claims the sum of ****.** and costs.

The Claimant has complied, as far as is necessary, with the pre-action conduct practice direction.

 

 

 

Defence

 

 

 

 

1. Paragraph 1 is neither admitted or denied with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim. Until such time the claimant can comply with my section 78 request and CPR 31.14 the claimant is prevented from enforcing any agreements or seeking any relief.

 

2. Paragraph 2 is denied that any notice of assignment – as required by section 136 of the Law of Property Act 1925 and by section 82a of the Consumer Credit Act 1974 – was received on or after 17/9/2012.

 

3. Paragraph 3 is denied that any statutory and valid default notice has been served on the Defendant.

 

4. Paragraph 4 is denied the claimant has complied with any pre action protocol and has yet to respond to my requests for clarification.

 

 

It is denied the Defendant owes any monies to the Claimant and the Claimant

is put to strict proof to:

 

 

(a) Show how the defendant has entered into the agreements

(b) Show how the Defendant has reached the amount claimed for

© show how the Claimant has the legal right, either under statute or equity to issue a claim by way of a Notice of Assignment and evidence of its service

 

 

On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxxxxx for a copy of the notice of assignment, default notice and a

statement of account showing how the amount claimed has been reached, which form the basis of this claim.

This was signed for by the claimants solicitors on xxxxxxxxx. The claimant has yet to comply.

 

On receipt of this claim form the Defendant requested a copy of the credit card agreement by way of a section 78 request dated xxxxxxxx. The Claimant has yet to comply.

 

Therefore the claimant in their none compliance to my requests have frustrated my attempts to clarify

their claim and against pre action protocol should be considered when the question of costs arise.

 

 

5. As per Civil Procedure rule 16.5(4) I expect that the claimant prove the allegation that the money is owed.

 

 

6. 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.

 

7. 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.

Edited June 18, 2014 by Andyorch
Paras added and numbered in Particulars

[AndyOrch]

Just tweaked it a tad iyam numbered your particulars and connected your opening paras in response.....otherwise yes good to go.

 

Regards

 

Andy

[iyam71]

Thanks a lot Andy. Will get it sent off asap.

[iyam71]

Was discussing this with my partner last night and she raised the possibility that there may have been PPI paid on the credit card.

 

 

Will have to look into it further but if there was PPI cash due would it have any impact on the court claim,

or simply serve to reduce the balance owed assuming it were successful.

Again thanks in advance for any advice

. I'd be lost without this forum.

[AndyOrch]

Something you could raise in mediation ...if you had PPI and it gets that far with regards to mitigating the amount.

[iyam71]

Another letter from them this morning. Reiterates that the 31.14 request may take up to 8 weeks, then the following:

 

We draw your attention to the fact that this claim is for a balance less than £10,000

and the normal track will be the small claims track which is governed by the Rules and Practice Directions of CPR 27.

 

 

This means that Part 31 of the Rules is not applicable to your claim pursuant to CPR 27.2(1)(b) and CPR 31.1(2).

It is not our intention to obstruct proceedings, on the contrary it is our view that the early disclosure of documents assist in reaching settlement.

 

 

It is also worth noting that we are required to serve on you and the Court copies of all documents upon

which we intend to rely at least 14 days prior to any date fixed for a final hearing in order to substantiate our claim and in compliance with CPR 27.4.

 

Please note that now that a claim has been issued it is your responsibility to file a response

and we may enter judgement if an Acknowledgement of Service or Defence is not filed at the appropriate time.

 

 

For the avoidance of doubt it is our contention that you are in a position whereby you can respond to the claim form to the extent

that you can admit or deny both liability and quantum without sight of any documents.

 

So they are saying that the 31.14 request is not applicable in this case and that

 

 

I do not need the documents to file a defence.

 

 

Can anyone shed any light on this?

[AndyOrch]

Its basically saying we are trying to avoid disclosure pre defence using a technicality...so they are obstructing proceedings.Until the claim is allocated it is trackless and therefore CPR 31. 14 does apply....but its only a civil request and none compliance carries no sanction.

 

Just submit a defence requesting the lot again and then as they state they will have to disclose later in proceedings.....and if they dont that is sanctionable......strike out.

[iyam71]

Defence has already been submitted. Could I not raise their obstruction at a later point in proceedings, or is it a simple case of waiting as they are going to have to produce the documents regardless or their claim can't succeed.

[AndyOrch]

Yes you raise it in your Witness Statement...then the court forces them to comply...if they cant then they can jog on:-)

[iyam71]

Quick update.

 

 

We have received a envelope full of documents from Barclaycard since the last post including a signed

and dated application for the original Providian card (which I wasn't sure they would have).

 

 

However since then MKDP have replied to the CCA request and sent out a reconstituted credit agreement

, which is nothing more than a photocopied set of terms and conditions.

 

 

There is also a covering letter from Barclaycard which includes a statement of account for £1 more than the amount stated

on the claim form, and including the £410 court fees.

 

So although the CCA does exist it appears they don't have it.

And it also looks like Barclaycard have just churned out a covering letter using a figure which corresponds

neither with that on the claim form nor the actual amount owed.

[iyam71]

Looks like this is definitely going to court as MKDP paid the court fee by the required date. Got just over a week to disclose documents and have drafted a provisional WS to follow (with a couple of queries if anyone could help me out).

 

 

In the ****

Claim no. **** between:

MKDP LLP

and

****

 

 

****

****

****

****

 

 

Witness statement.

 

 

I am the Defendant in the above case.

 

 

1. 1. On May 27th 2014 I received a County Court claim form from MKDP LLP dated May 23rd. This was for a total sum of **** for an agreement with Barclaycard.

 

 

2. 2. I completed the Acknowledgement of Service on June 2nd with the intention of defending the claim.

 

 

3. 3. I issued a request under CPR 31.14 to obtain documents referred to in the Particulars of Claim, and a request for a copy of the credit card agreement under section 78 of the Consumer Credit Act 1974. These were both signed for on June 9th.

 

 

4. 4. I received a letter dated June 12th from MKDP to inform me that they were unable to fulfil my request and would liaise with the original creditor to request the appropriate documents.

5. 5. I received a follow up letter from MKDP dated June 18th pointing out that the documents requested could take up to 8 weeks. The final two paragraphs inferred that the documents would not be disclosed pre-defence in any case. In my view this not only served to obstruct proceedings but also put me in a prejudiced position when submitting the defence.

 

 

6. 6. Defence was submitted to the court on June 19th.

 

 

7. 7. I received another follow up letter from MKDP dated July 3rd in response to my request for documents enclosing a reconstituted credit agreement only.

 

 

8. 8. Having not heard anything from the court for over a month I rang on August 26th. They informed me that they had been attempting to contact both sides with a view to mediation, but had been unable to in time and the claim would now be transferred to **** County Court.

 

 

9. 9. I then received a Notice of Allocation to the Small Claims Track dated September 8th. The judge’s directions encouraged a second attempt at mediation. I emailed the mediation service and received a reply noting my interest, but I assume they were unable to contact the Claimant as I heard nothing further.

 

 

1010. In my defence I put the Claimant to strict proof to provide the documentation which forms the basis of their claim. An agreement which is little more than a generic set of terms and conditions provided by Barclaycard fails to do this. Furthermore, as the reconstituted agreement I was sent is regulated by the CCA 1974, section 127(3) stipulates that the original agreement must be produced in court before an account can be re-enforced.

 

I believe that the facts stated in this witness statement are true.

 

 

 

 

****

14/10/14

 

 

 

 

I'm unsure whether to make any reference to the discrepancy between the amount claimed on the claim form and the figure on the covering letter from Barclaycard referred to in post #18. I'm also unsure whether to include paragraph 10 of the WS which was put in after reading about the Carey v HSBC case with reference to pre 2007 agreements. Is this worth keeping in and should I refer to the case by name? As always any feedback/assistance would be greatly appreciated.

[iyam71]

This has now been to court.

 

 

Neither my partner nor the court received any documents/witness statement from MKDP before the day of the hearing.

They sent a hired solicitor and tried to get my partner to agree to an adjournment

as he claimed they had only just received some of the documentation the day before,

this before the hearing had even started.

 

 

She refused and the whole thing became subject to a 40 minute delay while he had everything faxed through to the court from MKDP.

Once inside the judge castigated the solicitor for the unprofessional way in which the whole case had been dealt with

and for wasting the courts time, but fell short of striking out the case for failure to follow procedure.

 

 

Instead their request for an adjournment was granted as it was deemed unfair that my partner should proceed

without reading through the documents that had been faxed through.

 

After the hearing the solicitor urged my partner to study the Carey v HSBC case,

which having read through their witness statement forms the basis of their claim.

 

 

Their WS quotes "exhibit 1 is a copy of the Defendant's reconstituted credit agreement which is compliant with the judgement in Carey v HSBC

and therefore enforceable under s78 of the CCA 1974".

 

 

The agreement is actually the covering letter from Barclaycard I referred to in #18 and not the set of terms and conditions.

As I previously stated, this is more of a covering letter with a set of terms and conditions attached

and stating a different figure owed from that on the claim form.

 

 

In fact their bundle includes a Notice of Assignment from Barclaycard which directly contradicts the 'covering' letter as regards the amount owed.

They also enclosed a years worth of copy statements, a default notice from the original agents acting for Barclaycard

and a template letter for a Notice of Intended Legal Action.

 

 

My partner was also furnished with a 100 page print out detailing the Carey v HSBC case amongst others.

 

we have been given a few more weeks to submit a new WS after considering the response from MKDP.

 

 

Going to attempt to rebutt their WS point by point but I need to clarify the following:

 

reconstituted agreements are OK for s78 requests but not for documents to be produced in court for enforcement purposes (which MKDP seem to be saying isn't the case)

 

if an agreement has been varied by the original creditor a copy of the original agreement must still be produced

Carey v HSBC only applies to post April 2007 agreements (is there no document I could refer to in order to support this argument?)

 

are they on dodgy ground now I have a copy of the Notice of Assignment which shows a different figure owe

d from that which appears on the 'reconstituted' agreement/letter from Barclaycard?

 

All getting very confusing now so any feedback would be most appreciated.

[AndyOrch]

Responding to your PM iyam

 

Have you now received the claimants witness statement/disclosures?

 

 

Regards

 

Andy

[iyam71]

Yes, they were faxed through the morning of the hearing. We have been instructed to submit a new WS within the next couple of weeks in light of the documents that have now been provided.

[AndyOrch]

Post them up them...we cant advise without sight of what they have stated/disclosed.

[iyam71]

OK. Will have to sort it tomorrow as I'm out tonight.

[iyam71]

Witness statement

 

Agreement (there are another 4 pages of this which are just a continuation of the terms and conditions - no signature or anything specific to the account in question)

 

Copy statement (again there are a couple more months worth of these)

 

Default Notice

 

Notice Of Assignment

 

Pre-action Letter

 

We also received a 100 page document detailing Carey v HSBC amongst other cases (page 1 uploaded)

[AndyOrch]

Not forgot you iyam...give me chance to run through your uploads and I will respond over the weekend.

 

Regards

 

Andy