OH's IDEM claimform - MBNA credit card debt

[blondiegirl]

AMENDED TO TAKE INTO ACCOUNT POINT NO. 2 WHICH HAS BEEN EDITED

 

************************************* Draft Defence *********************************************

 

Particulars of Claim

 

1.     A credit card agreement made between MNBA Europe Bank Limited and the cardholder (D)

2.     Claimant ( C ) purchased the balance on the account on 06/10/2016

3.     D accrued balance £ 2947

4.     D defaulted on payments

5.     C issued Formal Demand requesting payment dated 23.08.19

6.     Amount now due from D £ 2947

 

 

1. The Defendant contends that the particulars of claim are vague and 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.

 

2. The Claimant has not complied with paragraph 5.1 of the PAPDC (Pre Action Protocol) and no exchange of information was disclosed. The claimant did not respond within the given 30 days pursuant to 5.2 of the PAPDC and proceeded to issue the claim irrespective pursuant to 5.2.It is respectfully requested that the Court take this into consideration pursuant to 7.1 PAPDC

 

3. Paragraph 1 is noted; I have in the past had financial dealings with MBNA on or about 2000. I am unaware of what alleged debt the Claimant refers to having failed to adequately particularise its claim, and have therefore sought clarity from the Claimant by way of a Section 78 request and a CPR 31.14 request.

 

4. Paragraph 2 is noted but it is denied that I was ever served Notice of Assignment pursuant to sec 136 of the Law of Property Act 1925 at the time of the Assignment dated 06/10/2016.

 

5. 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.

 

In response to my section 78 request for the MBNA agreement, an application form, which refers the applicant to sign and return the agreement. It is barely legible  and was provided along with a reconstituted version which is 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.

 

The claimant completely disregarded my CPR 31.14 request.

 

6. It is therefore denied with regards to the Defendant owing any monies to the Claimant; the Claimant has failed to provide any evidence of assignment/balance/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 the nature of any breach and service of Default Notice pursuant to sec 87.1 CCA974;

(C) show how the Defendant has reached the amount claimed for; and

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

 

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

 

8. 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.

  

9. 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.

 

[AndyOrch]

Okay a few tweaks and additions.....it was a bit all over the place . repetitive and the particulars para numbers not following in sequence....now it flows.

 

Andy

[blondiegirl]

Andy - thank you SO much - this is amazing. Let's hope it does the trick. 

 

How this will pan out is anyone's guess. The account with MBNA was never defaulted on, so MBNA couldn't have issued a DF notice. The payments changed, then ceased, with Idem who can't issue a DF notice (even though they did).

 

 

[AndyOrch]

They will argue blue murder that they can issue a default notice if the OC has not...as they are now the legal owner/creditor.This is where it gets murky if you read section 87 (1) of the CCA1974 it states...

 

Need for default notice.

(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,—

(a)to terminate the agreement, or

(b)to demand earlier payment of any sum, or

(c)to recover possession of any goods or land, or

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

 

You me and everyone knows the agreement had ended before the debt was assigned...MBNA had taken the facility away and you were not allowed to use the card apart from making payments to it from yourself...so in effect it was terminated......but how can they terminate it without issuing a default notice...well IDEM didn't take over and offer to resume the facility nor was you allowed to carry on using it...it was a bad debt...thats why it was assigned.MBNA simply forget to issue the DN...but for all intents and purposes it had been terminated ...even if not officially.

 

And this is were the Judges lottery steps in......lets hope you get a decent one.

 

 

[blondiegirl]

OK, thank you very much for that.  I will literally keep everything crossed once I upload this tomorrow.

 

So far, the advice here has been that Idem cannot legally issue a DF notice so I truly hope a CCJ isn't the outcome as I've always wanted to avoid it. It seems grossly unfair that it can be a lottery if it's against the law and there's evidence to support this.

 

Thanks for your help; it's really appreciated.

[dx100uk]

one thing you want to insist upon, should you 'win' is that all credit files are expunged of any sign of this debt.

 

dx

[AndyOrch]

45 minutes ago, blondiegirl said:

OK, thank you very much for that.  I will literally keep everything crossed once I upload this tomorrow.

 

So far, the advice here has been that Idem cannot legally issue a DF notice so I truly hope a CCJ isn't the outcome as I've always wanted to avoid it. It seems grossly unfair that it can be a lottery if it's against the law and there's evidence to support this.

 

Thanks for your help; it's really appreciated.

 

Well thats what the Consumer Credit Act states...so they can .......but in the same sentence....and this is the murky part.... 

 

(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,—

 

Well you have not breached the agreement since the assignment...because you have not had use of the facility since assignment . you did breach it before assignment when MBNA had it .....but they failed to issue the DN.....now if the Assignee wishes to issue a default notice some years later that does not allow you to correct the breach because time has passed the facility has been withdrawn and therefore you then argue under Unfair Relationship section 140a of the CCA 1974...1 a/b/ or c take your pick.

 

https://www.legislation.gov.uk/ukpga/1974/39/part/IX/crossheading/unfair-relationships

 

 

[blondiegirl]

OK, thanks.

 

Does the Judge then make a final decision based on the defence response, or do we have another chance?

 

Also, I don't believe that I ever defaulted with MBNA.

I have escalated this previously with the Financial Ombudsman who agreed that I had stuck to the agreement.  

 

The debt was then sold, and it was then, that the agreed monthly payments reduced then stopped.

Obviously I had no LOA nor proper agreement in place with Idem.

Not sure if this is relevant or not.

[AndyOrch]

Not sure I follow...another chance ?  The court does not look at a defence until you get to your hearing.

 

If you were on reduced payments with MBNA or a payment plan...you had defaulted.....broken the agreement...you didn't maintain the minimum payments.

 

Not sure what a LOA is ?  Is that the same as a DF ?   Where do you get these acronyms from ?

[blondiegirl]

Sorry, I assumed that someone somewhere will look at this once the defence is in on the moneyclaim site, because I read in this thread where 2 other caggers didn't need to go to court following their defence submission.

This may be a slim chance, but that's what I'm hoping for.

 

Does someone from idem actually go to court?

Do we need a solicitor?

Do most cases go to court?

Sorry for all the questions, this is all very new.

 

According to the Financial Ombudsman, a credit agreement can be restructured once (legally).

So when the reduced payments were agreed by MBNA and the account restructured, we were not at the time in default of the agreement and MBNA had to report the account as being up to date with the credit reference agencies because we'd maintained these payments. 

 

Then they sold the debt and at the time, this is when payments  were reduced and subsequently stopped, Idem says that we are in default of the agreement.

 

We asked Idem to accept the reduced payments due to hardship, but they refused and said that we would be in arrears.

 

Ha. 

Sorry, I meant that there was no agreement with idem nor a notice of assignment (NOA not LOA) that we're aware of.

I believe the acronym NOA is used on here, I just mis-typed it on my phone 

[dx100uk]

idem rarely discontinue cases.

 

a recon might well do for enforceability under the CCA but not good enough for court enforcement, two very diff things.

 

as has been explained about the default situation numerous times here in both these MBNA threads

MBNA should have issued default notices back in 2012 but ignored the ico rules relevant at the time and since.

the agreement wasn't ever restructured as you signed nothing new.

[AndyOrch]

Sorry, I assumed that someone somewhere will look at this once the defence is in on the moneyclaim site, Yes the claimant...MCOL send a copy to them. because I read in this thread where 2 other caggers didn't need to go to court following their defence submission. Thats because the claimant didnt respond and claim was stayed

This may be a slim chance, but that's what I'm hoping for.

 

Does someone from idem actually go to court? Yes ..a Paralegal or rent a Soliciitor

Do we need a solicitor? No

Do most cases go to court? Depends if the claimant responds to the defence and they dont discontinue before the hearing date.

[blondiegirl]

Thanks Andy. I didn't realise this was likely to happen which is quite daunting.

So now I log on to the moneyclaim site, and upload my defence points 1-9 - is that right?

[blondiegirl]

Can I just check that I'm just inserting the text into the 'defence' box and not ticking that I wish to issue a counter-claim? The submit defence? The sit back and pray lol?

[dx100uk]

correct

[blondiegirl]

OK. It's done.

 

[blondiegirl]

A letter was received today which I assume is standard:

 

Notice of Proposed Allocation to the Small Claims Track

 

It says that the defendant has filed a defence and it appears that thus case is suitable for allocation to the small claims track. 

 

It states:

 

No. 3 You must be 21 October 2019 complete the Small Claims Directions Questionnaire (Form N180) and file it with the court office (Northants address) and serve copies on all other parties.

 

 

[AndyOrch]

Yes normal part of the process...Allocation.

[blondiegirl]

Thank you Andy.

 

So other than filling it in (looks easy) and sending it back, is there anything else we should be doing?

 

2 Questions please:

 

A1 Do we agree to small claims mediation service?

C1 Do you agree that the small claims track is the appropriate track for this case?

[AndyOrch]

Use ours and complete on screen ....looks far more professional...print 3 copies.

 

 

[blondiegirl]

Great, thanks Andy. I'll get on that.

As I will need to go too, presumably I put 2 witnesses??

[blondiegirl]

Do Idem see the form with contact details on? I'd rather not put a mobile/email address if that's the case.

[AndyOrch]

Just now, blondiegirl said:

Do Idem see the form with contact details on? I'd rather not put a mobile/email address if that's the case.

Your sending it to their solicitor not the claimant

5 minutes ago, blondiegirl said:

Great, thanks Andy. I'll get on that.

As I will need to go too, presumably I put 2 witnesses??

 

Why 2 ?

 

Andy

[dx100uk]

you can omit phone/email/sig on their copy

[blondiegirl]

Thanks both.

I send 2 copies off - 1 to the Court and 1 to Idem Litigation Dept.

 

Their solicitor is "Idem litigation department". Same address as idem so they'll see  all the details including phone etc.

 

So the copy to the Court has to have all details, signature. But Idem's Litigation Dept. doesn't?

 

My husband hasn't got a clue about this, so I will have to go to court with him hence 2 witnesses??