PRA Claimform - old MBNA Credit card debt ***Claim Dismissed no DN***

[shamrocker]

Ok... you do what you feel is best.

[AndyOrch]

Add the points suggested by Shamrocker in his post Betty..the rest will suffice..it can be tweaked further after submission by way of a supplemental WS assuming the claimant serves you theirs.

 

It will be okay.

 

 

Andy

[Betty55]

Thanks Andy I will add those points and refer to those cases. Just reading Carey. Not as exciting as a Jack Reacher book that's for sure

[shamrocker]

Don't read it too deeply, as you'll be wasting time.

Look for the bits that refer to s.61(1) and s.127(3), and how ALL prescribed terms need to be present within one document, in prescribed form, signed by the debtor.

 

Here's an example from the Wilson case...

 

with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3),

ensure that these core terms are expressly set out in the agreement itself:

they cannot be orally agreed;

they cannot be found in another document;

they cannot be implied;

and above all they cannot be in the slightest mis-stated.

As a matter of policy, the lender is denied any room for manoeuvre in respect of them."

 

There are snippets within Carey that you can use too.

I can't remember the paragraphs off hand, but you'll find them if you skim over it.

 

Bear in mind that Carey refers to a case whereby debtors took the creditor to court to contest their credit agreements, due to the original not being provided subject to a s.77/78 request.

 

The outcome set the criteria for what the creditor can provide in order to satisfy their obligations in this respect

- it enabled them to provide a reconstituted agreement rather than the the original signed document.

 

 

However,

the judge does point out that it is a matter for the debtor as to whether they accept this and continue making repayments, or not.

The risk of not continuing with payments is that the original agreement may be located in the future.

 

The context of Carey,

is if you (the debtor) went to court to challenge an agreement,

the court will expect you to make a positive assertion that the agreement was improperly executed,

which is almost impossible without the original.

 

If a creditor takes you to court,

they must also evidence a properly executed agreement.....

 

However, I myself have been stung whereby a skilled barrister acting for PRA made the argument that Carey also compels me (the defendant & debtor) to make a positive assertion that the agreement was improperly executed.

If only I had that time over again, eh!

 

Hope the above helps.

 

It may be to your benefit to state that the 'agreement' they have disclosed is indeed what you completed, but it did not contain any other terms and conditions as part of the application.

 

If the Claimant contends that T&Cs were present, then they need to supply them as part of 'one document', that is signed by yourself.

 

In any event, you have never been given a set of T&Cs like those disclosed.

These T&Cs are not part of a single document and is also missing some terms, which are also referred to in the DN.

 

You'll need to use Carey to explain what is meant by a single document.

 

Maybe Andy can comment on whether the above is wise.

Edited July 21, 2018 by dx100uk
format

[AndyOrch]

You dont really need to go into detail...once you make the contention thats it fails or is devoid of the prescribed terms and therefore unenforceable...leave it to the claimant to work out which parts fail and which prescribed terms are missing...dont pinpoint them and assist the claimant...its their claim..let them work for it.

[Betty55]

Thank you Shamrocker & Andy

I will make sure to mention these cases and I suppose once introduced can be expanded on in any future WS or in the hearing

[Betty55]

Hi all

I have received a WS from claimant.

 

I had argued in my WS that they had not provided a proper CCA as not all the prescribed T&C were present.

 

I’ve attached what they have sent as claiming to be the CCA and would appreciate any thoughts?

 

Hope this is ok, but I think the 1st page is on twice

New Document.pdf

[Betty55]

Would really appreciate any opinions on the credit agreement provided by the claimant.

 

The first 5 pages were initially provided but the T&Cs were missing conditions 1&2.

Along with their WS they have now provided the last 2 pages which they say are a copy of the reconstituted copy of the agreement.

 

Apart from the first page, the application form, it all looks like a mishmash to me. Conditions 1&2 are on what looks like the front of an envelope and text so small I can barely read it with a magnifying glass.

 

I know that post Carey reconstituted agreements are acceptable but this agreement was 2002

 

I also wanted to see if anyone has any experience with comparing figures on DNs with NOSIA and statements.

 

The DN the claimant provided is dated 04/02/13 and states that £1555.00 must be paid by 23/02/13 to remedy breach.

 

I got a NOSIA dated 08/02/13 saying total due £671.40 and total areas £1891.00.

 

I also got a statement dated 08/02/13 asking for minimum payment of £2,230 by 24/02/13.

 

I don’t understand why the figures are all so different?

New Document(2).pdf

Edited July 22, 2018 by dx100uk
Merge

[AndyOrch]

Its all covered in Shammys post #186 Betty...and you can also now add its illegible...another reason why its invalid.

 

BTW its not a reconstituted version as stated in the SWS..its the original application with some copy/cut and paste T&Cs

 

What date is your hearing for this ?

 

 

Andy

[Betty55]

Thanks Andy

I have no idea what the CA is supposed to look like only it seems the T&Cs are a mess

 

I know 100% that the DN has been ‘produced’ by the claimant

 

I’ve got to get the n170 in post tomorrow.

 

Trial will be in August.

date to be confirmed.

 

I’m still not sure if I will get that far.

Not sure I can win and don’t know if I would be better trying to get a TO rather than a huge CCJ I think they will hammer the costs

[dx100uk]

they cant its small claims costs are fixed

 

N170?

[Betty55]

it’s fast track dx. I’ve got to do a pre trial check list thinks it’s n170 and it asks if claiming costs. I’m assuming the claimant does one also

[dx100uk]

oh yea good show..get it done..

[Betty55]

Anyone ever completed an n170 pre trial check list? Not sure what to put on it for costs or leave that blank?

[dx100uk]

https://cse.google.co.uk/cse?cx=partner-pub-8889411648654839:6449422593&ie=UTF-8&q=n170+pre+trial+check+list&sa=Search+CAG

[Betty55]

Thanks dx

I have read through all of those links where n170 is mentioned but no one discusses costs.

 

I’m assuming it’s for me to say whether I am applying for costs (I imagine the claimant will apply for thousands).

 

Im not sure whether to bother or what kind of figure a defendant would put in (probably moot anyway as will probably lose)

[dx100uk]

£19PH research

postage/stationary costs

loss of work £90 per day.

 

think that right

 

please don't forget you can search CAG too!!

use the search CAG box of the top red toolbar

 

https://cse.google.co.uk/cse?cx=partner-pub-8889411648654839:6449422593&ie=UTF-8&q=schedule+of+costs+fast+track&sa=Search+CAG

[Betty55]

Thanks dx. Yes I did search and saw the £19. Will add on the day loss of work for the trial too.

[AndyOrch]

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688463/n170-eng.pdf

 

https://www.inbrief.co.uk/preparing-for-trial/pre-trial-checklist-listing-questionnaire-n170/

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part28/pd_part28#6.1

[Betty55]

Yesterday I received a notification that the trial is on the 21st August and will last 1 day!

After coming this far I am now having second thought about continuing.

 

The main (or only) thing I think have to defend myself is the so called “Agreement” provided by the claimant.

 

I would appreciate an honest opinion from anyone as to whether anyone thinks it is worth the stress and taking time off work to prepare/attend if I don’t have a great case. I

 

can’t imagine why it will take a whole day and with it being fast track I think the claimant is planning to hammer the costs too.

[AndyOrch]

Well it is illegible and therefore pursuant to sec61 (1 c) CCA1974 ...unenforceable...along with the points stated by Shammy re section 127.

 

Assuming you get the right judge on the right day...up to speed on the CCA 1974.....he should follow legislation.

 

But if this is getting a little stressful Betty its your call...you have time to negotiate with the Solictor a settlement vis a Tomlin Order.

 

We appreciate this is not for everyone and we are fully aware its Fast Track with costs implications.

 

You must decide what best for you.

 

Andy

[Betty55]

Thanks Andy

Yes I have some thinking to do.

It’s a gamble on the DJ.

 

If I lose with costs and interest it will end up well over 20k on what was originally just under 13k. Part of me wants to fight it all the way but it is stressful.

 

On their DQ asking how many witnesses they intend to have they put a zero.

Was kinda hoping they may stick to it and not show up!,

[AndyOrch]

All DCAs put nil witness on the DQs..they dont call witnesses as the claimant and rely on representation.

[shamrocker]

Hi Betty, just posting to say I'm looking in, should you need any help.

 

Sham

[Betty55]

Thanks Shamrock

I’ve buried myself in the paperwork for the last few few days and Even up until the last minute wasnt sure I could do it but

 

I did it, and the case was dismissed Yaaaaayyyy

 

Have a feeling it’s not the end of it and they will be back but it’s done for now

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