Ding Ding... Round 5, MKDP/Barclaycard/Goldfish/MSDW v Spam.

[theoldrouge]

So what exactly have they supplied in response to your s78 request?

 

It would be helpful to post up with personal details removed

[Spamalot]

They have sent pages and pages of Morgan Stanley terms and conditions which states it is a copy of the agreement, and another A4 sheet with my name and address on top and a text box about my right to cancel underneath.

 

I am not able to upload any pictures/scans from my laptop at this stage, but it is general run of the mill T&C's. Nothing outstanding.

 

I have again requested a copy of the original signed properly executed agreement Under CPR 31.14, quoting point 4 of the summary of findings Carey V HSBC, and also copies of the alleged assignment from MSDW to Barclaycard, as they have now decided that Barclaycard were not the original creditor and that MSDW was.

 

They have offered to discuss a settlement figure out of court, but I have politely told them to take a running jump.

[Spamalot]

Further to the above.... MKDP have stated that they don"t have a copy of the original agreement and that they don"t need it for court, and that if I want a copy of the assignment between MSDW and Barclaycard I need to ask Barclaycard for it as it has nothing to do with them.

 

Their responses seem a bit baffling to me.

[dx100uk]

what are they on about?

seems like an office junior doing a court claim!

 

 

dx

[Spamalot]

Have today sent off a Part 18 request to ruffle their feathers a bit more.

 

PART 18 - REQUEST FOR FURTHER INFORMATION

To: MKDP LLP (claimant)

Please answer the following questions:

1. On what date was the alleged agreement assigned from MSDW to Barclaycard?

2. What was the amount assigned?

3. Does the amount assigned include charges? If so how much?

4. Was a notice of assignment sent? If so, where to and how? ( e.g. Royal Mail first class, special delivery/ recorded delivery)

5. On what date did Barclaycard issue a card and where did they send it?

5. Does the amount claimed include charges, and if so what amount?

6. When was the alleged account terminated?

7. How was the figure on the Notice of Assignment from Barclaycard to MKDP LLP calculated?

8. How was the Notice of Assignment from Barclaycard delivered?

 

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST

WITHIN 7 DAYS OF SERVICE OF THE SAME UPON YOU

 

It may not produce much, but you've got to make them earn their keep and see if they'll hang themselves.

 

Hey to the ho.

[AndyOrch]

CPR 18 is not applicable to Small Claims Track Spam.

 

Regards

 

Andy

[Spamalot]

ah.. right... Cheers Andy.

 

Is there any other way I can get this information?

[AndyOrch]

Data Subject Access Request?

[Spamalot]

Have already done that with MKDP, and also Barclaycard previously thanks Andy... neither threw up any assignments etc. and I'm pretty sure that what I'm asking for doesn't exist.

 

May have to hope the DJ requests the info at the hearing In June. Should be able to cast enough doubt on their 'legal ownership' and the amount claimed in my witness statement.

 

Fingers crossed!

[AndyOrch]

If you challenged them on those points within your defence and put them to strict proof...then the court will insist at disclosure that the relevant paperwork is provided (originals) at disclosure stage...have you got to disclosure stage?

[Spamalot]

Not sure to be honest!

 

I put in a holding defence online at MCOL which was as follows... (probably one of yours Andy )

 

Defence

In response to the particulars of claim.

1. It is denied that there is a ‘…regulated agreement originally

between the Defendant and Barclaycard and it is denied that any

monies are due as alleged by the claimant MKDP LLP.

2. It is denied that a legal notice of assignment has been served

and the claimant is put to strict proof thereof.

3. It is further denied that any default notice has been served

by either Barclaycard or the Claimant pursuant to the Consumer

Credit Act 1974 and in accordance with the Consumer Credit

(Enforcement, Default and Termination Notices) Regulations 1983

and the claimant is put to strict proof thereof.

4. It is denied that the claimant has complied with the pre

action conduct practice direction in the following matters:-

a) Failure to send a letter before action, and

b) Failure to provide legal documentation to support their claim.

Documents have been requested under CPR 31.14 for production of

the alleged agreement, default notice and assignment.

Requests were made on 14th and 16th December 2014, but as yet

they have not been produced.

 

As per Civil Procedure Rule 16.5(4), it is expected that the

Claimant prove the allegation that the money is owed.

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

© show evidence of Annual Statements and Notices of Sums in

Arrears since the alleged assignment;

(d) show how the Claimant has the legal right, either under

statute or equity to issue a claim.

As the Claimant is an alleged 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.

 

I respectfully request that I may amend and particularise my

defence accordingly once the alleged legal documentation has been

received.

 

It is my intention to make a counterclaim against the claimant

MKDP LLP.

This was as an exact response to the PoC.

 

My counterclaim was :

 

MKDP LLP have been unlawfully sharing inaccurate personal details with third Parties and credit reference agencies,(Contrary to Data Protection Act 1998) causing me difficulties in obtaining credit, a regular bank account and employment.

MKDP LLP have persistently harassed me by telephone and post despite being informed that the alleged account was disputed, and them being unable to provide legal documentation proving otherwise.

Having formally complained to MKDP LLP about their harassment and unlawful use of my personal data I received a final response from them informing me that they disagreed with my comments and I could take my complaint to the Financial Ombudsman Service. Having advised them that it was my intention to do as much I was issued with a County Court claim preventing me from doing so and thereby also preventing me from resolving this dispute outside of the courts and causing me more distress.

 

Well why not?

 

 

I've done the DQ and the case has been allocated to Small Claims with witness statements and docs to be exchanged by end of next month and fees paid.

 

Original Docs are to be brought to the hearing.

 

Their reply to my defence and covering letters to the CPR 31.14 response have opened up avenues that need exploring. Particularly the bit about the alleged agreement being assigned to Barclaycard by MSDW as I have proof that it was not. I can honestly say hand on heart that I never received an assignment to Barclaycard and I was also never issued a Barclaycard so I wanted them to hang themselves.

 

[AndyOrch]

Yes you have put them to strict proof to disclose....

 

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

© show evidence of Annual Statements and Notices of Sums in

Arrears since the alleged assignment;

(d) show how the Claimant has the legal right, either under

statute or equity to issue a claim.

.

 

Now take a look at your Notice of Allocation....look for additional directions apart from disclosure and witness statements.

[Spamalot]

There's nothing extra.... it"s just Day date time place of hearing, they say it should take no longer than 90 mins. Date given for delivery of docs to all parties and payment of fees. Original Docs to be brought to hearing.

That's it. No other directions. Very short and sweet.

[Spamalot]

Silly Question time....

 

If the POC states that the original Lender was Barclaycard and they are now saying that the original lender was MSDW, do they have to apply to vary the POC?

[AndyOrch]

Original Docs to be brought to hearing.

 

So that should cover disclosure....as for the Particulars......well its a further point to add to their errors.

 

Andy

[Spamalot]

Thanks Andy.

 

Amazingly I have received a reply to my part 18 request! They are obviously as daft as I am

 

They have basically answered every question with 'don't know, ask Barclaycard' apart from:



'How was the figure on the Notice of assignment calculated'

 

Where the reply was, 'The claimant submits that the balance would be the balance on the account when Barclaycard closed the account. In the event there is a discrepancy between what the Defendant believes the figure to be, this may be due to the fact that interest and charges have been applied to the account, which Barclaycard are able to do under the terms and conditions of the credit agreement.'

 

 

 

Also, they say that the defendant was 'given' notice of the assignment in compliance with s136(1) LPA 1925 rather than 'served' it so the provisions of s96 LPA 1925 for service by registered post do not apply.

 

Slippery little beggars...

 

Now I have all this 'helpful information', I'll start preparing my witness statement....

[Spamalot]

Just tidying up my Witness statement exhibits when I noted that the signature on my copy of the alleged NOA from Barclaysharks and the signature on the copy of the NOA sent by MKDP are completely different and therefore obviously been 'invented' by them.

 

Not sure whether to admit receipt of NOA and point out the attempted fraud, or go with not having received one... either way the NOA should be flung out because there's no proof that Barclaysharks were assigned the alleged agreement from MSDW in the first place and the amount includes unlawful charges so is therefore inaccurate .....just wondering which one will be the most damning.

[AndyOrch]

Why not state that the claimant has disclosed " documents " which contain different signatures to ones already in your possession of the same alleged documents.It is therefore brought to the courts attention that anything disclosed by the claimant can not be relied upon to be the original/legal executed version.Therefore the authenticity of any document disclosed must be questioned under oath?

 

Just a way of phrasing something without accusing anything:wink:

[Spamalot]

That' s priceless Andy! Thank you :-D

[Spamalot]

.... and there's more...

 

Have just discovered in my abundance of reconstituted agreements sent by MKDP, a covering letter from Barclaycard to MKDP.... methinks I shouldn't have seen this... ... it was sent in March of this year and states... please find enclosed documentation under s78 of the CCA1974 for our mutual client as requested.

 

a) how am I a mutual client if the one and only account I am supposed to have with them has been 'assigned' in its entirety to MKDP since 2011

b) why are Barclaysharks supplying reconstituted agreements of accounts they no longer own?

 

Also on this particular copy, Barclaysharks have stated my 'current balance' as the figure stated on the County Court Claim form.... how would they have that information if they didn't still have a mucky finger in the pie?

 

The plot gets thicker!

 

My question is.... how do I raise this matter at court?

 

Can I just include this particular copy of the recon agreement in my exhibits, and raise the point as an afterthought, or must I point it out in my witness statement?

 

I ask because I have already emailed my WS to MKDP and would need to send an amendment, but I will be hand delivering the one to court tomorrow so have the opportunity to add the info.

 

Thanks Spam.

[AndyOrch]

Depends on the the terms of the assignment Spam.....

 

Absolute Legal or only equitable

[Spamalot]

Thanks Andy,

 

Not sure how I would find that out..

 

NOA says 'Assigned and transferred By Barclaysharks to MKDP' and the 'effective owners of the alleged account are now MKDP'

 

Witness Statement from MKDP states, they are debt purchasers and authorised and regulated by FCA.

 

Nowhere does it say all rights and title to alleged debt belong to MKDP.

 

It all gets rather confusing...

 

If they don't own it absolute do they have the right to enforce at court... if they do own it absolute why are Barclaysharks still holding the paperwork?

[AndyOrch]

Not a scooby doo...welcome to the murky world of debt assignment....but it is quite normal for DCAs to request from the OC the agreement as they do not hold any paperwork from the portfolio.Some DCAs provide the response ...some OCs send the response.