Pudsters14 vs MBNA

[pudsters14]

please do you best with it, for some reason it is pasting it like thatthankspudstx x x

[pudsters14]

Thanx very much Steven for helping with that! lol. Any comments anyone? Want to get this posted 2day?!?BUMPThanxPudstx x x x

[pudsters14]

Righto, found an even better defencePlease have a read, feedback would be much appreciated

Defenceanoncag.doc

[pudsters14]

Sorry about this, I keep changing my defence , this is the final version, pending any suggestions or changes from you guys. Please make sure you read the file that is entitled final version anon cag...... Thanks.... Pudst x x x

Defencefinalversionanoncag.doc

[nicklea]

Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch)

 

I think you've got the wrong case. I believe that you mean :-

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633

 

Also, it may be useful to expand on teh notice of assignment argument, eg:-

 

Assignment of Debt

 

I submit that any alleged assignment of this debt to the Claimant, MCE Portfolio, is ineffective and so the Claimant has no standing before the court.

 

The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (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—

 

Section 196(4) prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

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 [by 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.

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before court action is commenced. It is denied that any notice of assignment was sufficiently served on me and so the Claimant has no right of action.

 

Notwithstanding the above, for a Notice of Assignment to be effective, explicit notice of assignment must be given by writing under the hand of the assignor (s136(1) Law of Property Act 1925). I further deny that any document given under the hand of the Assignor, online finance, was sufficiently served on me.

[pudsters14]

Thanks so much have amended those two points....was everything else okay?... thanks so much again....tipping your scales!!!!Pudst x x x x x

[pudsters14]

Righto this is the final final version unless anyone has any changes? Thanks so so so so muck Nicklea.... those are fab additions/changes... please have a read and let me know that this new one is now okay..... im excited.... its getting posted 2day! Pudst x x x x x x

Defencefinalversionanoncag.doc

[pudsters14]

Any suggestions at all before I trott to the postie?....Thanks....Pudst x x x x

[steven4064]

From a quick read-through, it seems OK

[pudsters14]

Thanks Steven, its much appreciated... i will get it printed shortly and sent special delivery!!....Pudst x x x x

[nicklea]

Don't take it yet!!

 

You've got some references in the assignment bit to another case.

 

Where it says MCE Portfolia you want to change it to Link FInancial and where is says online finance you wnat to change it to MBNA

[pudsters14]

Hiya, have altered to.....

 

Assignment of Debt

 

24. The claimant states the alleged debt was purchased from MBNA. I have not received a notice of assignment for the alleged debt from the original creditor. I therefore put the claimant to strict proof that privity of contract exists between the Claimant and Defendant.

 

25. I submit that any alleged assignment of this debt to the Claimant, Link Financial Limited, is ineffective and so the Claimant has no standing before the court.

 

26. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:

 

-136. Legal assignments of things in action.—

(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

 

—Section 196(4) prescribes the requirements for giving sufficient notice by post:

 

-196. Regulations respecting notices.

 

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 [by 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.

 

27. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

28. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before court action is commenced. It is denied that any notice of assignment was sufficiently served on me and so the Claimant has no right of action.

 

29. Notwithstanding the above, for a Notice of Assignment to be effective, explicit notice of assignment must be given by writing under the hand of the assignor (s136 (1) Law of Property Act 1925). I further deny that any document given under the hand of the Assignor, MBNA, was sufficiently served on me.

Edited June 12, 2008 by steven4064
format - there you go!

[steven4064]

Well done nicklea, I missed that

[pudsters14]

I'm really sorry I dont know why it's not recognising my line spaces! Driving me mad!...........................Thanks again for all your help!!!!

[pudsters14]

Thanks again for altering it steven, it reads much better like that! lol.

[pudsters14]

Hiya gang, i've been away for a while... hurt my back so been stuck and not able to get on the computer as it has been too painful.Had an allocation questionnaire from the court today... could do with some advice please.Link still haven't sent me one item of documentation, just a letter asking me to contact them, trying to explain. I will scan on in a min...Help and advice would be much appreciated...ThanxPudst x x x x x

[pudsters14]

Right this should be attached hopefully...

[pudsters14]

Thats not very good... lol... i will try again.....

[pudsters14]

Hi right this should be a bit better........................The bit with the red flash at the side of it, it did not say this. This is what Link have read into from my conversations about the account being in dispute and the fact that MBNA could not provide me with an executed credit agreement. I have explained the situation to them and think that they are doing this so that they can try and get off the point to be honest.................I have asked for transcripts of conversations bt this is literally all they have sent throughout the court process.........................I can scan anything else you may want to see and apologise if this prints with no line spaces... don't know why it does that!...................Pudstx x x x

Link letter.doc

[pudsters14]

BUMP - any comments?

[MAGDA]

I am in the same situation with Link - they will provide as little information as they possibly can and they have a nasty habit of suddenly coming up with agreements after they have issued court proceedings. They are currently taking us to court for four accounts and we have had very little in the way of documentation from them. When you complete your AQ you can attach your draft directions to it, in which you can basically request any information which you are relying on to be able to defend the claim properly. It will then go before the judge who will decide whether to agree your request and he will also determine which track the claim should be on. I have contacted link on several occasions firstly with a CPR request and then a S.A.R - (Subject Access Request)'s for one of my accounts, but they responded by sending just very vague info which was of no use whatsoever. I expect you know from speaking to them on the phone how underhanded they are, so it's best just to leave it up to the court and hope they will order the disclosure of the info you need. I have reported them to Caerphilly trading standards who are currently investigating them, as my local TS were of no help at all. Hope this helps a bit, and good luck, Magda

Edited July 21, 2008 by MAGDA
typo

[pudsters14]

Thanks Magda, think i'm going to do some reading on here and then think about getting it filled in! They are very underhanded... has anyone been to court with link that I can read abt on here? Pudstx x x x

[steven4064]

I would ignore them for the time being (except perhaps to correct their 'misunderstanding'). Ina while you will get an AQ from the court - in your reply to this you will have another opportunity to request any info that the other side has not yet provided.

[pudsters14]

Thanks Steven, I am using the draft order for directions as follows and am taking it to the court later today. I asked for a lot of other information in my CPR request, do i put that list within the draft directions too or just use the format as per PT2537's link?

 

This is what I'm using

 

 

_______________________________________________________

 

In the ************* County Court

Claim number **********

 

 

 

 

Between

 

 

************* - Claimant

 

 

and

 

 

xxxxxxxxxx - Defendant

 

 

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

[pudsters14]

Oh and I'm going to use this part too

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

 

N149 / 150 **Allocation Questionnaire

 

Section G / H **- other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

 

Can you think of anything else I need to attach? I sent copies of evidence with my defence.

 

Thanks for all your help!!!

 

Pudst

x x x x