MBNA court Activ Kapital

[shamrocker]

Just bumping this up. Hope someone can add some thoughts.

[AndyOrch]

Are you submitting a WS in objection to their application for SJ....have you had an hearing date yet?

 

Regards

 

Andy

[shamrocker]

Hi Andy

 

I had a letter confirming the hearing date this morning - it's less than two weeks away. The WS submission deadline is about a week away - yes, I will submit a defence if you good people believe there is some merit in it.

 

As outlined above, currently they have only produced one blurry and illegible copy of signed CCA, then more recently a clearer unsigned copy of a CCA with my name and address printed on it. No T&Cs have been disclosed. Their main focus seems to be credit card statements and the fact that credit has been received.

 

My other query is whether the steep rise in minimum repayments could be used in any way to highlight their total lack of disregard for the terms of any agreement that supposedly existed - the same agreement they are trying to enforce now. Without going into detail here, there seems to be no obvious explanation for this other than they weren't adhering to the agreement terms themselves at that point in time. Can they be be picked up on not adhering to said agreement during the course of the arrangement, but then place great importance on the agreement when it suits them? Maybe this is just a trivial point.

 

I'd really appreciate your advice on the above - particularly with regards to defending on illegible agreement and no T&Cs. The agreement is pre-2007, if that's of any use.

 

Thank you!

[The Mould]

Hi Andy

 

I had a letter confirming the hearing date this morning - it's less than two weeks away. The WS submission deadline is about a week away - yes, I will submit a defence if you good people believe there is some merit in it.

 

As outlined above, currently they have only produced one blurry and illegible copy of signed CCA, then more recently a clearer unsigned copy of a CCA with my name and address printed on it. No T&Cs have been disclosed. Their main focus seems to be credit card statements and the fact that credit has been received.

 

My other query is whether the steep rise in minimum repayments could be used in any way to highlight their total lack of disregard for the terms of any agreement that supposedly existed - the same agreement they are trying to enforce now. Without going into detail here, there seems to be no obvious explanation for this other than they weren't adhering to the agreement terms themselves at that point in time. Can they be be picked up on not adhering to said agreement during the course of the arrangement, but then place great importance on the agreement when it suits them? Maybe this is just a trivial point.

 

I'd really appreciate your advice on the above - particularly with regards to defending on illegible agreement and no T&Cs. The agreement is pre-2007, if that's of any use.

 

Thank you!

As regards the above, see the contents of my post #119.

Kind regards

The Mould

[shamrocker]

As regards the above, see the contents of my post #119.

Kind regards

The Mould

 

Thanks The Mould. I appreciate you taking the time to help me.

 

I will read through that with interest. I'm sure I will have more questions thereafter.

[shamrocker]

Hi Guys

 

I've been getting my head down on this today and I now need some information with regards to a notice of assignment, as it seems a bit strange.

 

What would this Notice of Assignment document look like and from whom would it be sent/created? Am I correct in that it should be sent to the debtor via registered mail?

 

Basically, the notice of assignment is referred to in the claimant's disclosure documents list, but all I can find is a letter from AK with words to the effect of 'we have purchased your debt'.

 

Then in their witness statement they refer to the defendant (me) being notified that the debt was assigned on (e.g.) 01/01/2013 and that a letter was sent to me on that date notifying me of the assignment -also, the 'notice of assignment letter' is given an exhibit number within the witness statement. The letter listed under that exhibit code is that same 'we have purchased your debt' letter I mention above and the date coincides with the date they claim the assignment of debt took place - i.e. 01/01/13. The record for 'debt assigned' in my credit file also coincides with the date. Therefore, I can only assume this letter is what they are relying upon as the Notice of Assignment.

 

Is this a proper Notice of Assignment? I have my doubts, but am not totally sure.

 

Thank-you!

[The Mould]

Hi Guys

 

I've been getting my head down on this today and I now need some information with regards to a notice of assignment, as it seems a bit strange.

 

What would this Notice of Assignment document look like and from whom would it be sent/created? Am I correct in that it should be sent to the debtor via registered mail?

 

Basically, the notice of assignment is referred to in the claimant's disclosure documents list, but all I can find is a letter from AK with words to the effect of 'we have purchased your debt'.

 

Then in their witness statement they refer to the defendant (me) being notified that the debt was assigned on (e.g.) 01/01/2013 and that a letter was sent to me on that date notifying me of the assignment -also, the 'notice of assignment letter' is given an exhibit number within the witness statement. The letter listed under that exhibit code is that same 'we have purchased your debt' letter I mention above and the date coincides with the date they claim the assignment of debt took place - i.e. 01/01/13. The record for 'debt assigned' in my credit file also coincides with the date. Therefore, I can only assume this letter is what they are relying upon as the Notice of Assignment.

 

Is this a proper Notice of Assignment? I have my doubts, but am not totally sure.

 

Thank-you!

Law of Property Act 1925 sections 136 & 196

 

136 Legal assignments of things in action.E+W

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M15Trustee Act, 1925.

(2)This section does not affect the provisions of the M16Policies of Assurance Act, 1867.

[F156(3)The county court has jurisdiction (including power to receive payment of money or securities into court) under the proviso to subsection (1) of this section where the amount or value of the debt or thing in action does not exceed [F157£30,000].]

 

196 Regulations respecting notices. E+W

 

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

(1)Any notice required or authorised to be served or given by this Act shall be in writing.

(2)Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.

(3)Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

(4)Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F196by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

(5)The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.

(6)This section does not apply to notices served in proceedings in the court.

 

Kind regards

The Mould

[The Mould]

Hi Andy

 

I had a letter confirming the hearing date this morning - it's less than two weeks away. The WS submission deadline is about a week away - yes, I will submit a defence if you good people believe there is some merit in it.

 

As outlined above, currently they have only produced one blurry and illegible copy of signed CCA, then more recently a clearer unsigned copy of a CCA with my name and address printed on it. No T&Cs have been disclosed. Their main focus seems to be credit card statements and the fact that credit has been received.

 

My other query is whether the steep rise in minimum repayments could be used in any way to highlight their total lack of disregard for the terms of any agreement that supposedly existed - the same agreement they are trying to enforce now. Without going into detail here, there seems to be no obvious explanation for this other than they weren't adhering to the agreement terms themselves at that point in time. Can they be be picked up on not adhering to said agreement during the course of the arrangement, but then place great importance on the agreement when it suits them? Maybe this is just a trivial point.

 

I'd really appreciate your advice on the above - particularly with regards to defending on illegible agreement and no T&Cs. The agreement is pre-2007, if that's of any use.

 

Thank you!

 

 

The clearer unsigned copy of the agreement is not compliant with s.61 CCA 1974 and cannot be relied on to enforce by reason of s.127(3) of the Act which such agreement is subject to.

 

 

If the agreement that the Claimant relies on is illegible and absent of terms & conditions, then I believe that you can rely on s.127(3) of the Act and the authority of Harrison v Link Financial Ltd that I posted a link for you previously.

 

 

Kind regards

 

 

The Mould

[The Mould]

Hey guys

 

Just an update. This week I received documents related to an application for summary judgement. The defendant has no case, etc, etc. Any advice on that?

 

Prior to that, I wrote and asked for a legible copy of the CCA they used in disclosure. I have not had a response to that.

 

What are my options here?

 

Many thanks!

Can you scan in the Claimants’ summary judgement application in its entirety so that we can see exactly what you are required to respond to and defeat. Redact all personal details therefrom before posting up here.

Kind regards

The Mould

[The Mould]

http://www.bailii.org/uk/cases/UKHL/2000/27.html

Click the above link and peruse this House of Lords decision where Lord Hoffman, giving the leading judgement made this qualified statement as regards irredeemable breach of s.61 (1)(a) of CCA 1974 which rendered the agreement in this case unenforceable by virtue of s.127(3) of the 1974 Act:

Lord Hoffman

“Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable”.

The above only applies to regulated agreements that do not comply with s.61(1)(a) before the CCA 1974 was amended and is the highest authority in England and Wales, now replaced by the Supreme Court. The amendments repealed s.127(3) amongst other things.

Kind regards

The Mould

[shamrocker]

Thanks TM! Your advice above is exactly what I was reading up on (re. legibility, T&Cs, etc), albeit I have no idea how to kick my WS/defence off as yet. I have a couple of things to sort right now and then I'll get everything scanned and posted up tonight.

 

I'm sure your guidance would be invaluable.

 

Thanks again!

[shamrocker]

Hi The Mould

 

Please see their witness statement below. This outlines the application for summary judgement.

 

Hope you can help.

 

Sham

 

[ATTACH=CONFIG]52046[/ATTACH]

[shamrocker]

Are you submitting a WS in objection to their application for SJ....have you had an hearing date yet?

 

Regards

 

Andy

 

Andy,

 

Are you aware of any defences that have proceeded on the grounds of illegible CCA and also non-supply of T&Cs. If so, were they successful or unsuccessful?

 

I need to start getting this together in the next day or two and am struggling with exactly where to start, albeit I'll trawl the forum again tonight for examples. The requests for advice I've read up on so far have only been in with regards to CCA requests that hadn't actually got as far as any claim being lodged and there were no details what impact pointing to the illegible CCA ended up. I'm keen to know how to angle this for the purposes of my WS and objection to SJ.

 

Many thanks!

[The Mould]

Andy,

 

Are you aware of any defences that have proceeded on the grounds of illegible CCA and also non-supply of T&Cs. If so, were they successful or unsuccessful?

 

I need to start getting this together in the next day or two and am struggling with exactly where to start, albeit I'll trawl the forum again tonight for examples. The requests for advice I've read up on so far have only been in with regards to CCA requests that hadn't actually got as far as any claim being lodged and there were no details what impact pointing to the illegible CCA ended up. I'm keen to know how to angle this for the purposes of my WS and objection to SJ.

 

Many thanks!

 

 

Err, Sham, I have posted a link to the House of Lords authority and the Harrison v Link Financial Ltd High Court authority as regards the contents of your above post.

 

 

I have just downloaded the Claimants' WS for his SJ and when I have had the opportunity to peruse the same I shall of course post back here for you.

 

 

Kind regards

 

 

The Mould

[The Mould]

Sham

 

 

Can you please upload a copy of the agreement and the default notice that the Claimant mentions in his WS for SJ.

 

 

Thank you.

 

 

Kind regards

 

 

The Mould

[shamrocker]

Err, Sham, I have posted a link to the House of Lords authority and the Harrison v Link Financial Ltd High Court authority as regards the contents of your above post.

 

 

I have just downloaded the Claimants' WS for his SJ and when I have had the opportunity to peruse the same I shall of course post back here for you.

 

 

Kind regards

 

 

The Mould

 

Thanks The Mould. I would be most grateful for that.

 

I've had a read of the link you posted. It seems to focus primarily on the absence of T&Cs at the time of account opening. I didn't see anything that suited my illegible CCA defence, but I'll have another read through it this evening as it was quite interesting how the case was put.

 

My head is beginning to spin a bit now with it all, but I think that if I can get through this stage I'll come out with a much greater understanding of my position that will help me later on. Trying to glance in on the forum whilst working is making me a bit twitchy ...but I'll sit down for a few hours tonight and try to read some more on the relevant areas.

 

Thanks as always! I really appreciate your guidance a lot.

[shamrocker]

Here's the CCA

 

[ATTACH=CONFIG]52055[/ATTACH]

 

They have also included a slightly 'unsigned' clearer version in the WS pack. My particulars are of a different format/style, so who knows when they were added.

 

I'll scan the DN shortly and get that posted too.

 

P.S. Can you check if any personal details can be seen on the PDF - i.e. author, etc?

[shamrocker]

Hi The Mould,

 

Please see Default Notice documents attached. Don't hesitate to let me know if you need anything else.

 

Many thanks!

 

Sham

 

[ATTACH=CONFIG]52057[/ATTACH]

[The Mould]

Thank you Sham.

 

 

Kind regards

 

 

The Mould

[The Mould]

Here's the CCA

 

[ATTACH=CONFIG]52055[/ATTACH]

 

They have also included a slightly 'unsigned' clearer version in the WS pack. My particulars are of a different format/style, so who knows when they were added.

 

I'll scan the DN shortly and get that posted too.

 

P.S. Can you check if any personal details can be seen on the PDF - i.e. author, etc?

 

 

Can you please post up a copy of the CCA that Claimant relies on in support of his SJ application.

 

 

Kind regards

 

 

The Mould

[The Mould]

Hi The Mould,

 

Please see Default Notice documents attached. Don't hesitate to let me know if you need anything else.

 

Many thanks!

 

Sham

 

[ATTACH=CONFIG]52057[/ATTACH]

 

 

The DN is valid because it complies with the provisions of the CCA 1974 before the Act was amended. i.e. before amendments creditors were only required to give debtors 7 days to remedy breach stated in the DN.

 

 

Kind regards

 

 

The Mould

[The Mould]

In the……………………….County Court Claim no.

 

Between:

 

The parties etc.etc

 

 

 

 

 

 

1st WITNESS STATEMENT of (your full name in caps)

 

EVIDENCE IN REPLY (DRAFT)

 

 

I, (your full name) of (your full postal address) am the Defendant in these proceedings and I make this statement as my evidence in reply in opposition to the Claimant’s summary judgment application dated (put the date). The facts and matters set out hereafter are made to the best of my knowledge and belief and I will say as follows:-

 

 

 

1. It should be noted that the agreement (“the agreement”) relied on by the claimant in support of his summary judgment application is unsigned and dated 2005 and therefore subject to the provisions of the Consumer Credit Act 1974 (“the Act”) that are set out therein before the Act was amended.
   

 

a) Section 61 of the Act provides that

“61 Signing of agreement.E+W+S+N.I.

(1)A regulated agreement is not properly executed unless—

(a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b)the document embodies all the terms of the agreement, other than implied terms, and

©the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible”.

 

 

1. The agreement relied on by the Claimant in support of his summary judgment application is clearly not a properly executed agreement pursuant to section 61 of the Act, as a consequence, the agreement is irredeemably unenforceable by reason of section 127(3) of the Act and in this regard, I respectfully draw this Court’s attention to the following House of Lords authority of Dimond v. Lovell [2000] UKHL 27 on this point of law where Lord Hoffmann, giving the leading judgment made this qualified statement:
   

 

Lord Hoffman

“Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing "all the prescribed terms." The hiring agreement in this case did not and is therefore irredeemably unenforceable”.

 

 

1. In the light of the foregoing, the Claimant’s summary judgment application is not only absent of reality, which is the criteria which the court must apply under CPR Pt 24, rather than one of probability, as stated by Lord Hobhouse of Woodborough in Three Rivers DC v Bank of England (No. 3) [2001] 2 All E. R. 513, but also the Claimants’ summary judgment application is bad in law and ought to be dismissed without any further ado.
   

 

 

1. In ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, it was said that under CPR Pt 24 r.24.2 the overall burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial. The Claimant has clearly not discharged this burden and clearly cannot discharge this burden on the evidence upon which he relies. The Claimant has not adduced any credible evidence in support of his application and in fact, the award he seeks from this Court thereon contravenes the Act and the authorities cited herein which I rely and which clearly hold in my favour and completely undermine and defeat the Claimants’ application.
   
2. 
   
3. For reasons set out above, I believe that I have clearly demonstrated to this Court that I have very strong if not irrefutable prospects of succeeding at trial on the issues which hold in favour of my Defence against the Claimants’ extremely weak claim which I believe remains unsubstantiated and unmeritorious as of the date hereof. Accordingly, I respectfully request that this Court dismiss his application without any costs awarded to him thereon.
   

STATEMENT OF TRUTH

Signed………………………………………….this 7th day of July 2014

(print full name here) – Defendant/Respondent

The above should get you going Shamrock. But please bear in mind that this draft Evidence in Reply is subject to me viewing a copy of the agreement that the Claimant has filed and served in support of his summary judgment application.

You will need to print of 3 copies of the authorities cited above and to make 3 copies of your witness statement evidence in reply.

File one copy to the Court and serve one copy on the Claimant (his sols acting), send both by Special Delivery!

Kind regards

The Mould

Edited July 7, 2014 by The Mould
Paragraph spacing

[The Mould]

As regards the authorities that I have posted for you, it is the point(s) of law decided on by the Court which are relevant to your case and the agreement relied on by the Claimant, the circumstances of those cases are not relevant to your case.

 

 

Kind regards

 

 

The Mould

[shamrocker]

Can you please post up a copy of the CCA that Claimant relies on in support of his SJ application.

 

 

Kind regards

 

 

The Mould

 

I have attached one in post #142 above - is this the one? Or do you also want to see the unsigned agreement that they have included with it?

 

EDIT - looking at the WS draft you very kindly supplied above, I see you have referenced an unsigned agreement, so I will upload that unsigned agreement now.

[The Mould]

The paragraph numbers in the draft Evidence in Reply should read as follows: 1. 1(a), 1(b), 2, 3 and 4.

 

 

Kind regards

 

 

The Mould