Idem PAP LOC now claimform - 1995 MBNA Card debt ***Claim Dismissed***

[Neeta]

Not sure if that is significant but they sent it to me with a covering letter dated 12th March.

 

That aside, as attached above I also received the letter from the court dated the 11th March ordering that the defendant (my hubby) shall file and serve an amended defence by 4pm 27th March.

 

I'm not sure what our amended defence could be since nothing new has been provided.

It feels like we're back where we were originally when I was submitting the defence.

 

Is the difference that I now need to put this in writing and send to the local court as opposed to posting on MCOL?

[AndyOrch]

Yes to local court ...the court that sent the order...but you have covered all the information from who ....So I assume its your local county court.

 

Your defence will now be in depth with the in depth particulars and why you dont accept that they have complied...or why the agreement is invalid etc etc...

 

Andy

[Neeta]

Hi

 

I have searched for help on submitting an amended defence and haven't found any examples apart from witness statements which isn't what I've been asked for.

I have rejigged the original defence I did in for the MCOL and have provided an answer to the statement from the claimant point by point, highlighting the lack of agreement and the default notice discrepancy.

Since you normally ask for the points to be listed that the defendant is responding to in the same post what is the best way for me to do that so you can read both? Do you want me to type out their points at the top - then my response underneath? Or copy my amended defence and re-attach the claimant statement in the same post?

Grateful for your help as ever.

 

[AndyOrch]

Just a copy of their particulars and your new draft in response thanks Neeta.

 

Andy

[Neeta]

Thanks Andy. I'm really not sure what to add to the amended defence, whether to personalise it to the point of explaining why and how I decided to challenge this after paying it for so long? ie. Originally negotiated monthly payments with MBNA, continued those payments when it was passed onto Moorgate, wrote to negotiate lower payments after I lost job. It was after applying for Security Clearance and checking credit files that I noticed a default recorded that I believed had been an agreed lower payment that I sought advice and sent a CCA request?IDEM.pdf

 

The Defendant contends that the particulars of claim are vague and are generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

I have in the past had financial dealings with MBNA on or about 1995. I am unaware of the alleged agreement the Claimant refers to having failed to adequately particularise its claim or refer to an actual account number and have therefore sought clarity from the Claimant by way of a Section 78 request and a CPR 31.14 request.

1.    Paragraph 1 is noted and the attachment referred to is an application form, which refers the applicant to sign and return the agreement. It is provided along with a set of random terms and conditions which are also void of an account number or date to which it supposedly refers to. Both of which are pre-April 2007 credit applications and therefore unenforceable pursuant to sections 61.1 a/b/c.and 65.1 and sections 127.1.

2.    Paragraphs 2 & 3 are noted

3.      Paragraph 4 is denied. I am unaware of any service of a Default Notice (s) pursuant to section 87 of the Consumer Credit Act 1974 by the original creditor MBNA. I have sought verification from the claimant regarding this matter and they have been unable to comply. A ‘copy’ Default Notice sent to me after my request for this document, this was not issued by the original creditor, was dated 6^th May 2014 and was on IDEM letter headed paper. IDEM did not purchase the balance of the account until November 2016.

4.    Paragraphs 5, 6, 7, 8 & 9 are noted.

5.      It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:  

(a)  show how the Defendant has entered into an agreement; and

(b)  show and evidence any cause of action and service of a Default Notice or termination notice; and

(c)  show how the Claimant has the legal right, either under statute or equity to issue a claim;

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

7.      On the alternative, as 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.

8.    By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

9.    It is therefore requested that since the Claimant has failed to comply with PD16.7.3 that the claim is struck out as per the order dated 24 January 2020 from District Judge xxx sitting at the County Court xxxx  

[Peterbard]

Needs work I am afraid.

 

1)

I realise that a "True Copy" does not have to represent a copy which if signed would constitute an  an enforceable agreement.

 

But what I  received from the claimant was a generic statement of terms and conditions. Which could have been used at any time, there is nothing to support the contention that it applied to my unexecuted or executed copies, that is the one I signed. Not even a date.

 

Therefore the requirements of sections 180 and 78 of the of Act and the 1983 Copy  regulations remain to be satisfied. Which in turn means that proceeding cannot continue, until a compliant copy is presented.

 

please adapt but do consult before amending.

 

[AndyOrch]

########Defence#########

 

Further to the court order dated 11th March 2020 I the defendant in this claim submit this amended defence in response to the further particularised particulars served by the claimant again in response to the above said order.

 

The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

1.    Paragraph 1 is noted the attachment referred to is an application form, which refers the applicant to sign and return the agreement. It is provided along with a set of random terms and conditions which are also void of an account number or date to which it supposedly refers to. It is therefore denied that the claimant has attached a copy of the original signed agreement.

 

2.   Paragraph 2 is noted and accepted.

 

3.   Paragraph 3 is denied. Condition 15 (vii) of the attached terms and conditions re assignment.The claimant cannot prove that the alleged Terms and Conditions are connected to the agreement.There is no reference on the application form connecting it to the Terms and Conditions.

 

4.   Paragraph 4 is denied. Moorgate Loan Servicing cannot be considered the creditor or assignee and as a third party only administrating are not legally able to serve a Default Notice pursuant to sec 87(1) of the CCA1974 on behalf of Britannica Recoveries SARL.However  A ‘copy’ Default Notice was sent to me after my request for this document, this was not issued by the original creditor MBNA, was dated 6^th May 2014 and was on IDEM letter headed paper. IDEM did not purchase the balance of the account until November 2016.

 

5.  Paragraphs  5- 9 are noted.

 

6. Therefore as the claimant is unable to provide a valid copy of the fully executed agreement which contains all the prescribed terms and conditions pursuant to CCA1974 and The Consumer Credit (Cancellation Notices and Copies of Documents ) Regulations 1983 they are prohibited from enforcing the alleged agreement until such time they can comply.  It is therefore requested that since the Claimant has failed to comply with PD16.7.3 that the claim is struck out as per the order dated 24 January 2020 from District Judge xxx sitting at the County Court xxxx  

 

[Peterbard]

Getting there.

 

It should be included in para one, that the signature box should be included within the same page as the prescribed terms, and not in another  document as per section 61, and the agreement regulations.

(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, 

 

 

The other Terms and conditions, as said are just a generic page which may or may not apply to the loan/card.

These are referred to in subsection 61(b} as being embodied with the executed document, this means in the same carrier as the executed document.

 

A document can of course contain many pages.

Edited March 23, 2020 by Peterbard

[AndyOrch]

No dont add anymore...this is an initial defence response...you can expand later if they wish to proceed to allocation within your witness statement.

[Peterbard]

OK, perhaps keep in reserve.

 

 

[Peterbard]

Bit like being in a time capsule this, back to 2006.

[Neeta]

Thanks both, manic times here and have barely had time to think this week but I need to 'file and serve amended defence by 27th' do I send one to Court and one to Claimant? or just to the court?

[AndyOrch]

States on the Order " File and serve "....so court and claimants sol.

[Neeta]

Hi all, hope everyone is well.

 

Received attached today. Will contact to see if mediation is an option as suggested.

 

Would you suggest paper hearing or wait for dates to open up and and attend in person?

 

Thanks in advance.

SCT.pdf

[dx100uk]

unless they've sent enforceable paperwork you have nothing mediate over...

[AndyOrch]

Wait for a hearing.....attend in person.

 

Andy

[Neeta]

Thank you

[Neeta]

Update : Received the notification from court of allocation to small claims track, dated 1st June. Court date 17th July.

 

By 4pm within 14 days of 1st June we need to : file and server any evidence by way of documents and/or statements additional to that which has already been filed and served and which it wishes the court to take into account.

 

So, by 14th June I presume we need to write the witness statement I have seen referred to in other posts? I will get onto that now if I'm correct in my assumption and post it here for advice. 

[AndyOrch]

By the 3rd July.....file and serve statement and docs.

 

Andy

[Neeta]

Received the attached and now feel like I've cocked something up as they mention a couple of times things raised in the original defence but not followed up in the amended defence and then the fact that I didn't raise the point about the default notice being on the wrong letterhead until submitting the defence.

 

I am an amateur, they're showing me as such and I'm worried now they'll just wipe the floor with me (well my husband since it's his account). It's causing me tremendous anxiety.

 

However, I have been working on the witness statement and I appreciate the following may not be in the right order for a witness statement, I have read lots of different versions and picked elements out of different ones that I believe are appropriate to my circumstances.

 

I would be grateful if one of you lovely people could help me get things in the right order and really be in a position to argue this case when the court date arrives.

 

Interestingly, the defaults on my husbands credit file (the ones that started us asking questions about this debt) have been removed, the first one back in February and the one relating to this claim was removed this month.  I'm unsure if this is some sort of crafty move by IDEM.

 

Headers and footers as per guidance...

1.      I make this Witness Statement in support of my defence in this claim.

 

2.      In September 2018 I had reason to check my online credit records and noted two defaults on my account which I was unaware of. As guided by the credit report I contacted IDEM at the time and requested information regarding these defaults.

 

3.      I did not agree with the reasons I was given for the defaults being on my account so I sought advice and as a result in January 2019 I sent IDEM Capital Securities Limited a Credit Card Agreement Request pursuant to Sections 77 – 79 of the Consumer Credit Act.

 

4.      I received a letter dated 10th January returning my £1.00 postal order and stating I would receive a response within 12 days. Attachments xx

 

5.      I received a further letter dated 23rd January from IDEM and their initial response stated that they were unable to find a CCA on either account but that they had contacted the original lender for copies. Attachments xx

 

6.      At this point I ceased payments on both accounts.

 

7.      I received a further letter dated 19th March from IDEM stating they had now found the CCA and enclosed a copy of an application form with generic terms and conditions that they state was for the amount and account on which this claim is based. Attachment xx

 

8.      In relation to the other account they stated that they were unable to provide a copy of the CCA and therefore the claim was unenforceable. Attachment xx

 

9.      I understand that the claimant is an Assignee, a buyer of defunct or bad debts which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.

 

10.  As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

11.  The application form and terms and conditions I received are attached.

 

As per Section 61 (1) of the Consumer Credit Act

(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,

The application form does not contain a reference or account number and the terms and conditions are generic in format, contain no identifying references and may or may not apply to the account. 

 

12.  On or around 14/11/19, I received a claim form from the County Court Business Centre, Northampton, for the amount of £5700.36.

 

The claimant contends that the claim is for the sum of £5700.36 in respect of monies owing under an alleged agreement with the account no. ******* pursuant to The Consumer Credit Act 1974 (CCA).

 

13.  Contained within the claimants particulars the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA.

 

In their various responses to the requests detailed above the claimant has produced what they describe ‘Copy’ of the default notice.

 

they provided a version of a default notice on IDEM letter headed paper and stamped ‘COPY’

their argument that this was an administration error and accidentally printed on IDEM headed paper does not hold weight where additional documents originally sent by Moorgate were sent on Moorgate headed paper.

 

I argue that this is not in fact a COPY of an original default notice, that they state was issued during May 2014, but that this is a fabricated version of a default notice created by IDEM. Either way the default notice was not issued by the original creditor (MBNA)

 

14.  It is therefore contended that the original creditor failed to serve a valid Default Notice pursuant to section 87(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement.

 

15.  The Claimants pleaded case is that the Defendant entered into an agreement with MBNA.

I am uncertain as to which account this refers to.

It is accepted that I have had financial dealings with MBNA in the past however one account was admitted as being unenforceable via the claimant that was for a much lower amount and yet it is the higher amount they produce an application form for.

 

16.  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 disclose a true executed legible agreement on which its claim is based and relies upon.

 

17.  Until such time the claimant can comply and disclose a true executed copy of the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

 

18.  Therefore, for the above reasons the claim bought by the claimant is without merit and an abuse of the court process.

It would be far gracious and forthright for the claimant to admit that they do not have possession of any valid paperwork and this is an attempt to convince the court that the claimant can disclose the legal valid documents on which its claim relies on.

 

19.  Until such time the claimant can comply and disclose the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

 

IDEM_WS.pdf

[Peterbard]

Very good. However in my opinion you need to differentiate the agreement sent and the agreement you would have signed.

 

For instance, is the APR on the document the same as an early statement, if not it cannot be a true copy. Are the default payments the same, is the address the same in both the CCA and where you lived on the execution etc.

[Neeta]

Thank you for your response, however I'm a little confused. The agreement that IDEM have produced is an application form and  as far as  I'm aware the only thing that was ever signed. A copy of it is included earlier in this post number 5 and I was advised it wasn't an agreement.

 

I don't have any early statements, this goes back to 1995 so can't compare. The address is the same on the application form. I'm not sure what you mean by are the default payments the same, could you expand please?

 

[AndyOrch]

The penalty charge for defaulting Neeta.......

[Neeta]

Thanks, again I don’t have anything to verify this. The default was raised on the account when it was already on a payment plan so there was no charge at the time, they say they sent a default notice because I’d asked to reduce payments due to change in circumstances and they didn’t accept the lower amount because I didn’t send income and expenditure. 

[AndyOrch]

I wouldnt worry about it....IDEM wont have a clue what you are going on about and its history with regards to MBNA. I would advise you remove point 6 above...adds nothing to your statement and may go against you.