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

[Neeta]

Thanks Andy, apart from that do you think the rest is ok.

Would you feel reasonably comfortable sending that as it is (without point 6) ?

 

Couple of other things...

 

They do have a point in that we had continued to (stupidly I get that) pay for years and could that go against us?

Or is our argument that they can't prove there is an agreement between us and them our strongest point here?

 

Also is the fact that there were 2 accounts with MBNA a fact we can use as a point of our confusion

- ie How can they prove that this application form relates to one or the other when there are no account details?

 

Just looking through the paperwork they have sent as part of their witness statement, there is a covering letter from MBNA to IDEM with the account number as reference in response to a request for the CCA under Section 78 of the Consumer Credit Act 1974.

 

I guess this links the 'agreement' (application form) to that particular account. 

Although the point still remains that the application form has no reference numbers on it and the Conditions of Use are generic.

 

Should I take out the references to 2 accounts (which were both with MBNA) or re-word ?

[AndyOrch]

I wouldn't muddy the waters with the second MBNA Agreement...adds nothing to your defence ...keep to the particulars of claim add nothing.

Its irrelevant whether payments have been previously made and do not support any question of whether the agreement is enforceable ...thats in the past...this is now and have they got all the valid paperwork to support their claim.

 

Im going to rejig your statement as it does not flow correctly....

 

Headers and footers as per guidance...

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

 

2.  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).

 

3.  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.

 

4.  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.

 

5.  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.

 

History

 

6.  In September 2018 I had reason to check my online credit records and noted a default 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.

 

7.  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.

 

8.  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

 

9.  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. (Exhibit 1a)

 

10. 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 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. 

 

11. With regards to 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.

 

12.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)

 

13.  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 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 of a regulated agreement.

 

Conclusion

 

14.  The Claimants pleaded case is that the Defendant entered into an agreement with MBNA. I have in fact had a few different agreements with them in the past and it would appear that the claimant is mixing two different agreements and using incorrect amounts to support its claim.

 

15.  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.

 

16.  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.

 

17.  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 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.

 

SOT

 

Signed date.

 

 

 

 

 

 

 

[Neeta]

Thank you so much Andy. I'll get that printed and the copies done today and posted.

[AndyOrch]

[Neeta]

Sorry - one last question before I go to the post office, do I need to copy and send all the associated documents since it went to small claims track? i.e. previous defences etc? The Claimant has included those in their pack but I'm not sure if I need to do the same?

 

Or just stick with attaching the

1) first reply from claimant,

2)reply including application form,

3&4)fake default notice with the true copy from Moorgate as  evidence?

 

[AndyOrch]

Any document that you have referred to in the statement and wish to rely on as evidence must be attached and marked on the statement correspondingly ...(Exhibit 1...Exhibit 1a.....Exhibit 1b ....etc...see point 9 above in the statement.

[Neeta]

I feel like such a t1t! I was just going to head out to the Post Office, checked the document sent by the court for the address to send to and then noticed that : the court considering that the case is appropriate to be determined on paper pursuant to CPR 27.10.

 

Goes on to say - confirm that he/she agrees to the court determining the case on the papers file and served.

The case shall be considered by the court on the papers without the attendance of the parties on a date time detailed. (17th July)

Later...

Unless both parties confirm agreement to the case being determined on the papers the claim will be removed from the list and adjourned to a later date.

 

Should I send the statement but state that I (hubby) wish to attend in person? Or just send a letter at this stage saying I wish to attend in person?

 

So sorry to be a pain I feel like a total tool now, I received the letter, saw the date and clearly got confused by the notes talking about choice to attend....

[dx100uk]

you want the opportunity to cross examine them in person

 

dx

 

[AndyOrch]

That does not make sense Neeta...does it not state.....?

 

" Unless both parties confirm agreement to the case not  being determined on the papers the claim will be removed from the list and adjourned to a later date. " 

[Neeta]

It definitely says what I put Andy,  I posted it earlier in this thread but attaching it again here.

sct 1.pdf

[AndyOrch]

It does.....but it also states that within 14 days of the date of the order you should inform the court if you agree it should be determined on papers only...that being 15th June ?

[Neeta]

Totally confused now.  Have I missed all the deadlines ?  I did ask when I got it, as it said 14 days whether I should reply by 14th. 
 

Given the current circumstances am I left with no choice but to send the statement and have it determined via the paperwork only?  If so I need to get it in the post. 

Please don’t think I’m taking this lightly, and I’m not making excuses but the same as many others the past months have been extremely stressful, my hubby has been taking care of his parents and I’m trying to manage multiple things including this while working full time and overtime. I read up on things when I have time but that’s a very limited amount of time. 

 

 

[dx100uk]

you have until 3rd july to file your stuff to the court and the claimants solicitor (if they have one)

in a sep letter state you do not agree to a paper only hearing

 

follow each part of 1. on the order.

 

andy ....should he put in a costs list too??

 

thats my take..

 

i can see them discontinuing and you getting costs here?

as £335 is a steep fee they'll never get back and your costs will be cheaper??

 

dx

 

[AndyOrch]

You did indeed and we advised to wait for the hearing......but we expected you to respond to the order and inform them you didnt agree with papers only by the 15th June.

 

You could always attach a letter to your statement stating that you don not agree to a papers only hearing...they may let it through with covid etc...

 

Not sure what you mean by requesting Costs DX ?  Why ?

[dx100uk]

i was commenting on the courts order whereby it says if the claimant fails to pay the £335 fee by 10th july, .....

unless the court orders otherwise, you will also be liable for the costs which the defendant has incurred...

 

dx

[AndyOrch]

Unless the court orders otherwise......given that the court will strike it out and it wasn't discontinued by the claimant...I doubt any costs would be awarded....and Discontinuance costs do not apply in SCT.

[Neeta]

Thank you both, much appreciated.

[Neeta]

Received notification yesterday that says - upon considering the file and the re-opening of the County Court for face to face hearings  it is ordered that the small claim trial will be heard on 17th September.

 

What additional information might I need to arm my husband with for him to argue his side in court? I'd like to give him as much information as possible so he is prepared.

 

Thanks again for your continued help

[AndyOrch]

I think you have everything...nothing further to add.

[Neeta]

Just back from court.

 

As this was my husbands debt I don't have chapter and verse on what happened but he returned to the car after an hour saying he had to go back in 45 mins for the decision but feeling like he'd lost.

 

The focus was all on the DN,

the claimant was trying every which way to explain that the formatting was lined up with the other documents and it was just a mistake that it had been printed on the wrong letter head etc etc and the judge said she had to determine the balance of probability of the DN having been sent and at that point sent them away to take time for her decision.

 

I asked my hubby to try and remember all that was said.

With regards the CCA she seemed dismissive and was on the side of, well you've been paying it.

All of this made us think that we would ultimately lose.

 

When he went back in she talked through how letters before and after the DN all had the Moorgate headed paper and yet this one didn't and therefore she was not going to uphold the claim.

 

I expect we will get more information in writing at some point and I will share the information when it arrives but as I read it this is a success, they can't continue to pester us now ?

 

 

[dx100uk]

well done you won

 

no they cant have 2 bits of the cherry.

 

 

[BankFodder]

Well done. And thanks for the update.

Let's see what my site and colleagues @Andyorch and @dx100uk make of it all.

[Neeta]

Thanks to all of you, I know I can be a worrier.

 

Without the help and support of this site and the people involved I would still be paying them month on month beyond retirement no doubt so thank you so much.

[AndyOrch]

Excellent ...well done Neeta topic title amended.

 

Regards

 

Andy

[Peterbard]

Excellent result and well done.