Help required for Aktiv Kapital court claim for old MBNA CC

[dx100uk]

library tab top left legal section

[Tek Screw]

Thanks DX all sorted.

[Tek Screw]

Hi All,

 

 

As an up-date to this thread:-

 

 

AOS sent 20/10/14

CPR 31.14 Request sent 22/10/14 to signature on claim format AK. Proof of Delivery (POD) 23rd.

CCA Request sent 22/10/14 to AK. POD 23rd.

 

 

Letter received from AK29/10/14 to acknowledge receipt of my correspondence.

"I can confirm to you that matters raised are being investigated. A full response will be issued to you in due course".

 

 

Not sure which of my two letters this applies to as both went to AK?

 

 

So, by my calculations I have until 14th November to submit some kind of defence as the claim form is dated 13th Oct?

 

 

I guess I sit tight for a week or so to see if I receive a further reply.

[dx100uk]

yep

 

 

dx

[Tek Screw]

Hi

 

 

Still no reply to my CPR & CCA Request's.

 

 

I need to submit a defence by Friday this week and do not want to leave until last minute.

 

 

I've drafted a defence over the weekend..is it worth me posting here for someone to take a look over?

 

 

Thanks

TS

[Mr Spoon]

Hi

 

 

Still no reply to my CPR & CCA Request's.

 

 

I need to submit a defence by Friday this week and do not want to leave until last minute.

 

 

I've drafted a defence over the weekend..is it worth me posting here for someone to take a look over?

 

 

Thanks

TS

 

I'm still in the same position, but have until 17th. I'll certainly be drafting and posting soon...

[AndyOrch]

" I've drafted a defence over the weekend..is it worth me posting here for someone to take a look over? "

 

Yes If you seek other opinion.

[Tek Screw]

Hi Andy,

 

 

Please see below - Opinion's as to any amendments would be appreciated:

 

Particulars of claim (for cross reference purpose)

 

1.The claimant claims the sum of 24XXX.00 for the debt and interest. On XX/XX/98 the defendant entered into an agreement with MBNA for a Credit Card under reference XXXXXXXXXXXXXXXX.

 

2. On XX/XX/10 the defendant defaulted on the agreement with an outstanding balance of 20'XXX.XX.

 

3. On XX/XX/10 the debt was assigned to Varde Investments (Ireland) Ltd. On XX/XX/12 the debt of 20'XXX.XX assigned to AKTIV Kapital Portfolio AS, Oslo, Zug Branch. Notices of assignment were sent to the defendant in accordance with S136 Law of Property Act 1925.

 

 

AND THE CLAIMANT CLAIMS

1. The sum of 20XXX.XX

2. Statutory interest pursuant to Section 69 of the county courticon Act 1984 at a rate of 8.00% per annum from XX/XX/12 to XX/10/14 4XXX.XX and thereafter at a daily rate of 4.42 until judgment or sooner payment.

 

 

Proposed defence

 

1. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

2. On XX/10/2014 the Defendant submitted a written request to the Claimant via first class recorded delivery under CPR 31.14, for copies of all documents stated within the Claimant’s Particular’s of Claim. Whilst the Claimant acknowledged receipt of the Defendant’s request on XX/10/2014, the Claimant has not complied with the request.

3. On XX/10/2014 the Defendant submitted a written request to the Claimant via first class recorded delivery under the Consumer Credit Act 1974 S.78, for a true copy of the stated Agreement. Whilst the Claimant acknowledged receipt of the Defendant’s request on XX/10/2014, the Claimant has not complied with the request.

4. As the Claimant has failed to comply with the above requests, the Claimant is held to strict proof of:-

a/ A true and original copy of the agreement, to include all prescribed terms & conditions as defined by the Consumer Credit Act 1974.

b/ A true and original copy of any default notice issued.

c/ A true and original copy of the Contract of Assignment from MBNA to Varde Investments (Ireland) Ltd.

d/ A true and original copy of the Contract of Assignment from Varde Investments (Ireland) Ltd to Aktiv Kapital Portfolio AS, Oslo, Zug Branch.

5. The Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the Court’s attention to the following matters:

A copy of the purported written contracts that the Claimant cited in the Particulars of Claim and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim.

6. I have no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice and that it complies with the prescribed form set out in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

7. Further and in the alternative it is not admitted that the sum claimed is lawfully owed. The Claimant is put to strict proof as to how the sum claimed has been calculated and how it is asserted that the sum claimed is contractually owed.

8. Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

9. I respectfully ask the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents.

 

 

 

Edited November 10, 2014 by Andyorch
Particulars added for for cross reference and checking

[AndyOrch]

Particulars now added for cross reference...take a look at their points 1/2/3 and then your proposed responses in your defence 1/2/3.

 

A defence must either admit or deny or question the claimants pleadings...anything you do not respond to will be taken as an admittance by the judge.

 

Regards

 

Andy

[Tek Screw]

Cheers Andy,

 

 

In my draft I was simply numbering the points I wanted to make.

I see now that I have to answer each allegation they make in POC, in turn with a reply.

 

 

TS

[AndyOrch]

Correct...penny dropped at last:-)

[Tek Screw]

Yes Andy..Its taken a while but I think I'm with it now..

When you've never done this before your head gets bombarded with info and you start to ramble...

 

 

Would I be correct to state that "I am unable to admit or deny" due to lack of a reply to my requests?

 

 

TS

[AndyOrch]

I try to avoid that.....comes across as debt avoidance...there are plenty of defences I have already drafted.See how I word it without actually admitting anything.

You seek clarity...you seek that they have the legal right to bring the claim and if they have that the correct amount is legally owing...no court will reject a defence on that basis.

 

And most claimants will struggle to respond.

[Tek Screw]

Much appreciated...back to the drawing board

 

 

Will post again soon.

[Tek Screw]

Hi Andy,

 

 

I've had a re-vamp...Your comments would be appreciated:-

 

Particulars of claim (for cross reference purpose)

 

1.The claimant claims the sum of 24XXX.00 for the debt and interest. On XX/XX/98 the defendant entered into an agreement with MBNA for a Credit Card under reference XXXXXXXXXXXXXXXX.

 

2. On XX/XX/10 the defendant defaulted on the agreement with an outstanding balance of 20'XXX.XX.

 

3. On XX/XX/10 the debt was assigned to Varde Investments (Ireland) Ltd. On XX/XX/12 the debt of 20'XXX.XX assigned to AKTIV Kapital Portfolio AS, Oslo, Zug Branch. Notices of assignment were sent to the defendant in accordance with S136 Law of Property Act 1925.

 

 

AND THE CLAIMANT CLAIMS

1. The sum of 20XXX.XX

2. Statutory interest pursuant to Section 69 of the county court Act 1984 at a rate of 8.00% per annum from XX/XX/12 to XX/10/14 4XXX.XX and thereafter at a daily rate of 4.42 until judgment or sooner payment.

 

 

 

The defendant contends that the Particulars of Claim are vague and generic in nature. The Defendant accordingly sets out his case below and relies upon CPR 16.5 (3) in relation to any allegation to which a specific response has not been made.

1/ Sentence 1 in Particulars of Claim – It is not admitted that the sum claimed is lawfully owed. The Claimant is put to strict proof as to how the sum claimed has been calculated and how it is asserted that the sum claimed is contractually owed.

2/ Sentence 2 in Particulars of Claim – Is denied until such time the Claimant complies with my written request dated XX/XX/2014, under section 78 of the Consumer Credit Act 1974, for the original copy of the executed agreement and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)the state of the account, and

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

Furthermore, the Claimant is prevented from enforcing any agreement whilst he remains in default under section 6(a) of the Consumer Credit Act 1974.

3/ Sentence 3 in Particulars of Claim – It is denied that any Default notice has been received relating to the stated account as required by the Consumer Credit Act 1974. The Claimant has failed to reply to my written request dated XX/XX/14, for a true and original copy of any default notice(s) and is held to strict proof thereof.

4/ Sentence 4 in Particulars of Claim – The Defendant has no knowledge of any assignment of debt dated XX/XX/2010 from MBNA to Varde Investments (Ireland) Limited. The Defendant has no knowledge of receiving a notice of assignment as required by section 136 of the Law of Property Act 1925 and section 82a of the Consumer Credit Act 1974. The Claimant is held to strict proof thereof.

5/ Sentence 5 in Particulars of Claim – The Defendant has no knowledge of any assignment of debt dated XX/XX/2012 from Varde Investments (Ireland) Limited to Aktiv Kapital Portpolio AS, Oslo, Zug Branch. The Defendant has no knowledge of receiving a notice of assignment as required by section 136 of the Law of Property Act 1925 and section 82a of the Consumer Credit Act 1974. The Claimant is held to strict proof thereof.

6/ In addition –

 

1. The Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the Court’s attention to the following matters: A copy of the purported written contracts that the Claimant cited in the Particulars of Claim and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim.
   
2. In view of the failure to comply with the CPR Part 31.14 request it is denied that the Claimant is entitled to costs as claimed.
   
3. I respectfully request the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents.
    
   
   

Cheers

TS

[AndyOrch]

Its still a miserable fail Im afraid Tek Screw

 

Just out of interest and would provide invaluable knowledge to assist with the defence.....why did you default in 2010? You didn't respond fully to the link in post #8

which requests for all the history of the debt.

[Tek Screw]

Hi Andy

At the time I was self employed and using the card to finance renovations on a property.

 

Then the financial crisis hit, the property market stalled and it went into negative equity.

 

 

I was late on a few payments and the interest rates/repayments increased.

 

 

With no income I "sold" the debt to credit card killer/momentum network.

 

 

I now know the full story of CCK but all too late.

 

I've completely ignored all correspondence from a variety of DCA's and I'm where I am today.

[AndyOrch]

Particulars of claim (for reference only)

 

1.The claimant claims the sum of 24XXX.00 for the debt and interest. On XX/XX/98 the defendant entered into an agreement with MBNA for a Credit Card under reference XXXXXXXXXXXXXXXX.

 

2. On XX/XX/10 the defendant defaulted on the agreement with an outstanding balance of 20'XXX.XX.

 

3. On XX/XX/10 the debt was assigned to Varde Investments (Ireland) Ltd. On XX/XX/12 the debt of 20'XXX.XX assigned to AKTIV Kapital Portfolio AS, Oslo, Zug Branch. Notices of assignment were sent to the defendant in accordance with S136 Law of Property Act 1925.

 

 

AND THE CLAIMANT CLAIMS

1. The sum of 20XXX.XX

2. Statutory interest pursuant to Section 69 of the county court Act 1984 at a rate of 8.00% per annum from XX/XX/12 to XX/10/14 4XXX.XX and thereafter at a daily rate of 4.42 until judgment or sooner payment.

 

 

Defence

 

The defendant contends that the Particulars of Claim are vague and generic in nature. The Defendant accordingly sets out his case below and relies upon CPR 16.5 (3) in relation to any allegation to which a specific response has not been made.

 

 

1. Paragraph 1 is accepted I have in the past had financial dealings with MBNA however I am not aware of the account number in question and therefore requested clarity by way of a section 78 request.The claimant has yet to comply.

 

 

2. Paragraph 2 is denied I do not recall the exact date or nature of any breach Therefore I have sought clarity by way of a CPR 31.14 request.The claimant has yet to comply.

 

 

3. Paragraph 3 is denied I am unaware of any legal assignment or Notice of Assignment allegedly served from either the Claimant or MBNA.Therefore I have sought clarity by way of a CPR 31.14 request.The claimant has yet to comply.

 

 

4. It is therefore at this time denied with regards to the Defendant owing any monies to the Claimant, and the Claimant is therefore put to strict proof to:

 

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

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

© show evidence of any breach and service of a Default Notice and subsequent Notices of sums in arrears

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

 

 

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

 

 

6.On the alternative, as 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

[oleg]

Point 3 of defence : add "or Varde Investments" - as well as of course changing Barkingcard to MBNA .

[Tek Screw]

Hi Andy,

 

 

Many thanks for your time and comments, it's very much appreciated.

TS

[Tek Screw]

Hi all,

As an update....33 days from my defence submission was up Monday.

I have spoken with Court today who advise that the Claimant has not replied as yet, although the courts are 10 days behind in dealing with correspondence.

The case is stayed at the moment but there is a chance a reply may be in the system.

I have been advise to call back in 10 days to confirm.

 

 

Cheers

TS

[AndyOrch]

I personally wouldn't even worry about it Tek...you will know when and if they wish to proceed when a Directions Questionnaire lands on your doormat.