MBNA court Activ Kapital

[shamrocker]

Have you not already requested information vis a CPR 31.14?

 

Andy

 

 

No, I haven't Andy. I presumed I only needed to to ask for the CCA based on advice given, though I did wonder about it.

 

I know there's plenty of info about it on the forum so I won't take up any of your time by asking what I should be asking for and how it assists with the defence, but before I go looking, is this still a worthwhile exercise at this stage?

[AndyOrch]

Not to worry ...I very much doubt they would respond anyway...you can pick up on disclosure further into the process.

[shamrocker]

Ok, great. I'll try to do some reading up on it in readiness for it's use at a later stage. In the meantime, we're approaching the deadline for acknowledgement - date of issue, e.g. 25th September would make the deadline 14th October, correct?

[AndyOrch]

Tomorrow is the deadline to AoS yes.

[shamrocker]

Tomorrow is the deadline to AoS yes.

 

Ok, I have completed the AoS and indicated that I would defend the claim. I have still not received any CCA as per my request to AK.

 

Is there a standard defence with regards to the claimant not being able to provide the CCA? Tell me to go read through the forum if the answer lies there, though I though it was worth asking first as I usually end up reading through a load of totally irrelevant material. I haven't had a chance to read up much yet as I've been busy and just popped on the forum quickly as I am aware that the clock is ticking.

[AndyOrch]

Here is one of mine as an example of draft :-

 

####DEFENCE:#####

 

1. Paragraph 1 is not admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with the Claimant as the Defendant did not enter into any Agreement with the Claimant.

2. Paragraph 1 is not admitted with regards to the Claimant terminating the alleged contractual Agreement as the Defendant did not enter into any Agreement with the Claimant.

3. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and 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;

 

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

5. 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.

6. On the alternative, the Agreement referred to in paragraph 1 was improperly executed contrary to Section 61(1)(a) of the Consumer Credit Act 1974 ('the Act').

7. The Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that it was improperly executed as set out above and by reason of Section 65(1) of the Act.

8. Further, by reason of the fact that there is no document which has been signed by the Defendant containing a correct statement of the amount of the credit under the Agreement, and by reason of Section 127(3) of the Act, the Court has no power to make an enforcement order in respect of the Agreement because a term stating the amount of the credit is a prescribed term for the purposes of Sections 61(1)(a) and 127(3), prescribed by the Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and paragraph 2 of Schedule 6.

9. 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.

 

Split their POC into paragraphs and number them and then use the above as an example.

[shamrocker]

Thanks, that's a great help.

 

P.S. When is best time to submit it? At the last minute?

[AndyOrch]

Never leave it to the last possible hour...a day before its due?

[shamrocker]

Never leave it to the last possible hour...a day before its due?

 

A quick question with regards to defence - using the above example draft, does it need to have the POC listed above the defence as a kind of introduction and then labelled 'Paragraph 1', etc... It's this Paragraph 1 bit that's confusing me. Or, to put it another way, assuming the above example fitted my situation perfectly, would this be all that I'd need to include in the defence?

[AndyOrch]

No not on the submitted version thats for you to refer to their points...if they have 5 points (breakdown their points of their particulars) you would have 5 responses etc etc.

 

They never number their particulars ....they should to be compliant so you do it for them.

 

If you dont like the phrase " paragraph " call it point 1 and point 2 and so on.

[shamrocker]

No not on the submitted version thats for you to refer to their points...if they have 5 points (breakdown their points of their particulars) you would have 5 responses etc etc.

 

They never number their particulars ....they should to be compliant so you do it for them.

 

If you dont like the phrase " paragraph " call it point 1 and point 2 and so on.

 

 

Thanks Andy. Another question - (bearing in mind your example is a very good fit for my POC) you state:

 

"1. Paragraph 1 is not admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with the Claimant as the Defendant did not enter into any Agreement with the Claimant.

2. Paragraph 1 is not admitted with regards to the Claimant terminating the alleged contractual Agreement as the Defendant did not enter into any Agreement with the Claimant."

 

My POC states 'the defendant entered into an agreement with MBNA' - therefore, should I still retain your wording as above and refer to 'not admitted with regards to entering into an Agreement with the Claimant'?

 

BTW, still no news on my CCA request.

[AndyOrch]

If the claimant is not MBNA and they dont state it was assigned to them then yes otherwise no as will come across as being pedantic.

In the above draft I caught them out they failed to state that they had bought the debt from the original creditor.

[AndyOrch]

In your case no.....

 

The claimant claims the sum of £15,970.57 for debt and interest. On 26/07/05 the defendant entered into an agreement with MBNA for a credit card under reference 0123456789012345. On 12/09/12 the defendant defaulted on the agreement with an outstanding balance of £15,009.98. On 22/11/12 the debt of £15,009.98 was assigned to Activ Kapital Portfolio AS Oslo Zug Branch. Notice of Assignment was sent to the defendant in accordance with s136 Law of Property Act 1925. AND THE CLIENT CLAIMS - 1. The sum of £15,970.57, 2. Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8.00% per annum from, etc..etc..

[shamrocker]

Ok, think I've finally got it now. Thanks a million!

 

Here goes...

[shamrocker]

In your case no.....

 

Back again...sorry! The Consumer Credit Act is not mentioned within my POC, but I assume it was referred to in the POC you drafted the above example for. Therefore, should I draw upon it at all in my defence?

 

I refer to these points:

 

"5. 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.

6. On the alternative, the Agreement referred to in paragraph 1 was improperly executed contrary to Section 61(1)(a) of the Consumer Credit Act 1974 ('the Act').

7. The Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that it was improperly executed as set out above and by reason of Section 65(1) of the Act.

8. Further, by reason of the fact that there is no document which has been signed by the Defendant containing a correct statement of the amount of the credit under the Agreement, and by reason of Section 127(3) of the Act, the Court has no power to make an enforcement order in respect of the Agreement because a term stating the amount of the credit is a prescribed term for the purposes of Sections 61(1)(a) and 127(3), prescribed by the Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and paragraph 2 of Schedule 6."

 

Although the Act was not mentioned, should I; a. keep the wording you have used; or, b. pull it into the defence from a different angle i.e. the Agreement should be compliant to the Act, but isn't and therefore...etc, etc..?

[AndyOrch]

Their claim does rely on the CCA1974 so irrespective of whether they have stated it or not you can respond with the above points.

[shamrocker]

Thanks Andy. We're there now I think.

 

It has been a bit of a steep learning curve. More to come, no doubt.

 

Your help has been very much appreciated on this.

[AndyOrch]

Post up your final draft and ill give it the once over.

 

Regards

 

Andy

[shamrocker]

I've submitted it via MCOL Andy

 

It is very similar to yours, except I altered a little of it to keep it within the context of the POC, particularly to whom the alleged agreement was made with (MBNA). Then, further on, I referred back to the claimant with regards to monies currently owed, pretty much as you stated it. It was really only the first few points that I had to change.

[AndyOrch]

No problem keep you thread updated with anything that transpires.

[shamrocker]

Here it is:

 

1. Paragraph 1 is not admitted with regards to the Defendant*

entering in to an agreement referred to in the Particulars of*

Claim ('the Agreement') with the MBNA as the Defendant did not*

enter into any Agreement with MBNA.

 

2. Paragraph 1 is not admitted with regards to 'the defendant*

defaulted' on the Agreement, as the Defendant did not enter into*

any Agreement with MBNA.

 

3. It is denied with regards to the Defendant owing any monies to*

the Claimant and 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;

 

4. As per Civil Procedureicon Rule 16.5(4), it is expected that*

the Claimant prove the allegation that the money is owed.

 

5. 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.

 

6. On the alternative, the Agreement referred to in paragraph 1*

was improperly executed contrary to Section 61(1)(a) of the*

Consumer Credit Act 1974 ('the Act').

 

7. The Agreement cannot be enforced against the Defendant without*

an order of the court by the reason of the fact that it was*

improperly executed as set out above and by reason of Section*

65(1) of the Act.

 

8. Further, by reason of the fact that there is no document which*

has been signed by the Defendant containing a correct statement of*

the amount of the credit under the Agreement, and by reason of*

Section 127(3) of the Act, the Court has no power to make an*

enforcement order in respect of the Agreement because a term*

stating the amount of the credit is a prescribed term for the*

purposes of Sections 61(1)(a) and 127(3), prescribed by the*

Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and*

paragraph 2 of Schedule 6.

 

9. 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.

[AndyOrch]

But you did enter in agreement with MBNA albeit through Virgin?

[shamrocker]

Yes. So I should have accepted that bit? I presumed this bit was denied due to absence of CCA? Looks like I've missed the point with some of this.

 

Is it possible to change this bit with them...or too late? Would it make any difference anyway?

[AndyOrch]

Can you still get into the MCOL screen or has it locked?

[shamrocker]

It has locked - i.e. I cannot amend what has been submitted.