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MBNA / Arrow / Restons Claim***Claim Discontinued***


BlueBox
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I received a claim from Restons back in December 14.

 

I immediately sent a CPR 31.14 request for the agreement, default notice and assignment.

 

We had a bit of to and fro while they claimed I didn't need the documents to file a defence.

So I filed an N244 application for disclosure.

 

Rather than raise the order at Northampton,they transferred the case to my local court.

 

In the meantime, Restons sent an illegible short form agreement.

 

The order is now subject to a hearing this week and

 

I have just received a pile of documents from Restons stating why they oppose the order,

again including the illegible agreement,

last statement and notice of assignment.

I assume they have copied these to the court.

 

I haven't filed any defence so far since NNBC told me not required until N244 application was resolved.

 

The original alleged credit card account dates from 2000 and the claim is over £5000 but under £10000

 

My question at this stage is

 

what will the judge expect from me at the hearing?

 

At present all they have is copies of letters to and from Restons and their recent package

 

Do I need to present a document addressing the points in Restons submission or can I just argue them at the hearing?

 

I effectively only have one working day to do this and email it to court if it needs to reach DJ before hearing.

 

Now that Restons have submitted documents, is the hearing the place to challenge them?

Eg on legibility, enforceability of agreement even if legible etc.

 

If documents are deemed suitable to proceed, there are other twists and turns in how MBNA handled things but just want to get through this first.

 

Thanks in advance.

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This is what happens Blue Box when you don't follow the tried and tested process...submitting an application pre defence for disclosure in effect has the following consequences....

 

You put yourself at risk of application costs

You enter the court without a defence

You shortcut the process and devoid yourself the opportunity of putting the claimant to further work..and following the process.

 

You should at least be submitting a witness statement now in support of your application and in response to what the claimants have disclosed on its validity and enforceability .

The hearing will be a mini a trial and judgment will be set at the same time if what the claimants have provided are accepted by the court.

 

Remember for future reference.......Disclosure follows the defence and is the last part of the process before trial

 

Regards

 

Andy

We could do with some help from you.

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Thanks for reply on Bank Holiday, Andy.

 

I was following the processed suggested by pt2537 to apply for documents before defence. Perhaps I've misunderstood but this has worked on two previous occasions where the documents were not provided and the cases were struck out with my LiP costs awarded.

 

Those were both dealt with entirely at Northampton without a hearing and on neither occasion did I file a defence.

 

The difference this time is that it's been transferred to the local court with a hearing.

 

I did not think this hearing would be for the actual claim, just whether Restons were able to comply with the order and perhaps whether the documents now supplied were sufficient for them to proceed with their claim.

 

The copy of the document bearing my signature is not easily legible and the copies they have included with their witness statement are even worse. I need to get the magnifying glass out to check the clause references against the longer T&Cs on separate pages.

 

This is what they submit that the strike out claim should not succeed -

a. the Defendant does not dispute entering into a Credit Agreement with MBNA in his Application, or that he was provided with a Credit Card facility and that he utilised that facility and incurred a debt;

b. I would respectfully submit that the defendant should have been able to file a defence without sight of the Credit Agreement or Notice of Assignment, as he should already know on what basis he disputes the liability of the debt;

c My firm has not acted in a manner as alleged by the Defendant. The Claim was issued by CCBC which is a procedure specifically provided for in CPR. This procedure only allows a Claimant to insert brief details of the Claim and does not allow for the attachment of any enclosures. Para 5.2A of Practice Direction 7E specifically states "The requirement in para 7.3 of Practice Direction 16 for documents to be attached to particulars of contract claims does not apply to claims started using an online claim form, unless the PoC are served separately in accordance with para 5.2 of the Practice Direction"

d. Although the Defendant states that he requires the requested documents in order to file a defence, we would point out that the PoC contains sufficient information in order for him to understand what the Claim relates to, namely

- the date the account was opened

- the account number

- the outstanding balance

- the name of the original creditor and

- the fact that the account has been assigned to the Claimant and when it was assigned

 

e. The Defendant has had ample opportunity to make a Section 78 CCA Request to the Claimant for a copy of the CA but has failed to do so Furthermore, the Defendant has now had sight of the Signed Credit Agreement, yet refrains from responding to my firm.

 

f. In compliance with CPR 6.9, all correspondence was sent to the Defendant's last known place of residence. The Defendant should have been aware of this Claim for a period of three months at the very least, yet chose not to respond until proceedings were issued.

 

I did in fact write to the court to advise that I had received the illegible copies but omitted to copy Restons.

 

At present, my responses (in informal language) are based on

a. I have neither admitted not denied entering into an agreement, so this is a false statement.

b. how can I dispute a claim without the documents on which it is purported to be based?

c. they consistently refused to provide any documents. I never said that they should have been provided with the claim.

d. Of course the PoC contains sufficient information to know what it might relate to but certainly not the validity of the claim

e. Whether I should or should not have made a section 78 request before is surely irrelevant. Although I have received their illegible copy, I was expecting that it would be the court that would determine whether this was sufficient for the application to succeed or the Claim to be progressed

f. The letter before action in certainly not clearly headed as such although it contains an offer to settle, and the notes about obtaining legal and debt advice. It states that they 'may be instructed' to issue proceedings and that they will not contact me again to warn that legal proceedings will be issued. How seriously should I have taken that letter, and what should the correct pre-action response have been?

 

It looks like an advocacy outfit called Kearns will be attending the hearing.

 

With this extra detail, can anyone please advise if I'm on the right track here?

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Difference is this time the claimant has challenged your application...hence the transfer to your local county court for hearing.

 

Andy

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OK but I could still really do with some input on how to handle this please. I only have Tuesday to do anything useful.

Can the court really use this hearing to pass judgement on the case?

There are other challenges to the validity of the claim such as the Default Notice which wanted payment of the whole amount rather than just arrears.

They have chosen to not explicitly mention that in the PoC, so hard to get them to disclose that. Presume I would have to disclose my copy if I want to pursue that route (assuming I can locate it)

Thanks

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Difficult to advise as we know nothing of the claim or debt...if you could complete the following to flesh the bones BlueBox....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**

 

Andy

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Case details are:

 

Name of the Claimant ? Arrow Global

 

Date of issue – 24 November 2014

 

What is the claim for – the reason they have issued the claim?

The Claimant claims payment on the overdue balance due from the Defendant(s) under a contract between the Defendants and MBNA dated on or about Oct 06 2000 and assigned to the Claimant on Nov 29 2012 in the sum of (amount between £5,000-9,999)

 

What is the value of the claim? Between £5,000 and £10,000 (specific value given in claim)

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Credit Card

 

When did you enter into the original agreement before or after 2007? 2000, so before 2007

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. Account assigned

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? No it was sent to an address I had not lived at for 30 months.

 

Did you receive a Default Notice from the original creditor? Yes, defective in that it showed full amount, not arrears. Timing was also suspect in terms of days allowed.

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? No

 

Why did you cease payments? Could not afford them due to change in circumstances

 

What was the date of your last payment? Either 1 April or 8 April 2009 (one of two possible accounts).

 

Was there a dispute with the original creditor that remains unresolved? Yes, I disputed the Default Notice as defective

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt managementicon plan? Yes, but they refused. I made reduced payments for a while then stopped.

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Excellent okay what did you put in your N244 application and what order did you request....have you specifically listed documents?

We could do with some help from you.

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subscribe

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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The N244 requested the agreement and the notice of assignment. I omitted the default notice since it was only alluded to not specifically mentioned. In February I eventually received an illegible signature form (1/3 A4, terms on both sides) and a Notice of Assignment sent to an address I'd not been at for 30 months. Unfortunately my opportunity to apply for a quick strike out was messed up by Exeter misplacing the paperwork.

 

I have had to submit a witness statement now in order for the judge to have any chance of seeing it before the hearing - tomorrow! It's been allocated 30 minutes and the DDJ is a family law expert. I'm loath to put the witness statement here now but will do after the hearing whether it's successful or not if it will help others. My main arguments are that they did not willingly participate in CPR 31.14 and that the abused the court process by not following pre-action protocols as the purported letter before action was anything but.

 

If the application is successful, will any further action be statute barred? (look at the last payment dates above!) If the application is unsuccessful, I'm possibly looking at their costs of £600 or so.

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"If the application is successful, will any further action be statute barred? (look at the last payment dates above!) April 2009."

 

Becomes statute barred in April (July) this year...if struck out.

We could do with some help from you.

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Well the hearing wasn't too bad. Their advocate and I had a quick meeting beforehand and he asked if I'd like to withdraw the application. Equally, I offered him the opportunity to withdraw the whole claim (although I don't think he had been instructed to consider that). Without any clear conclusion, we agreed to disagree and went in to hearing.

 

The judge ruled that their letter before action was adequate (disappointing) but that my application for documents and request to extend time for defence was not frivolous or vexatious (ie not a waste of time). Because Restons had sent the documents, albeit some were illegible, she did not feel able to strike out. But she did say that my application for more time to file a defence was valid and granted that.

 

No costs were awarded to either party pending allocation.

 

They now have 14 days to produce a legible version of the signature form and I have 28 days to file a defence. I'm sure they will take the whole 14 days to send me anything.

 

I think that if I had based an application on non-compliance of pre-action protocols (ie this should never have got to claim stage) the outcome would probably have been the same.

 

Allocation will follow my defence and will be Small Claims or Fast Track depending on how technical the arguments are.

 

So, what should I build my defence on?

 

For anyone else, be warned that the flimsiest letter before action can be deemed acceptable. To avoid (or at least delay) court action, I'd suggest at least writing a 'What are you talking about?' letter.

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Decent Deputy District Judge there BlueBox.....9/10 would have dismissed your application and awarded costs to the claimant....well done.

 

Andy

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No doubt.... they now know exactly what your defence will rely on.

We could do with some help from you.

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  • 1 year later...

For those doubting that my defense would be successful, the claim has been withdrawn with my expenses paid. Should add that it has taken this last 12 months to get to that stage.

 

PM me if you have a similar claim and want to know more.

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For those doubting that my defense would be successful, the claim has been withdrawn with my expenses paid. Should add that it has taken this last 12 months to get to that stage.

 

PM me if you have a similar claim and want to know more.

 

Well done but BB...but as per Forum Rules all information to be on the thread please...not by PM.

 

Thread title amended to reflect the outcome.

 

Regards

 

Andy

We could do with some help from you.

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