Pudsters14 vs MBNA

[pudsters14]

I think it went pretty well.... will do a full update for you with more details 2mrw morn/aft. It hasn't been thrown out but hopefully am on my way towards it. Pudst x x x x

[angel_1]

hiya pudsters,

 

sorry missed that you were attending yesterday to wish you good luck

 

but hey am so looking forward to your news when you update,

 

lets hope a celebration is pretty near

 

take care for now ciao MAZ:D

[pudsters14]

Hiya guys

 

Have had a bit of a busy weekend!

 

Right....update! Here goes....

 

We got to the Court and Link had sent someone from an agency to represent them. She promptly served me with an extremely poor copy of the application form, this form contains no terms/conditions/prescribed terms etc. Parts of it are barely legible.

 

The judge seemed pretty nice and fair to both parties... she didnt favouritise either of us....

 

What she has ordered is....

 

1. Link have to file a proper particulars of claim, they have to break everything down and supply paperwork to support their claim within 21 days...

 

2. I have to file an amended defence once they have submitted this along with a statement.

 

3. They have to supply me with all the paperwork they are relying on.

 

4. We will get listed for a full hearing sometime in March.

 

The judge was understanding when I explained I am having an op at the beginning of Jan and said that if I have any probs with the deadlines to forward a docs note.

 

Just wondering how Link are going to particularise this claim properly,... with all the faults that they have done along the way... They can't rely on the Default notice because it is invalid. The rep that was there wasn't very keen to supply the deed of assignment, however the judge said that she has to. I think they are up a creek without a paddle so to speak...

 

I tried to go through my list with the judge but she kept saying it would be dealt with at the full hearing. She was also very interested in the hearsay evidence thingy!

 

So.... I may need some help with an amended defence and statement but feel pretty confident I can keep up my side of the bargain....

 

Thanx for all your help, support and encouragement... its very much appreciated.... I don't think at this stage it was good or bad news but at least they are going to have to start either admitting their wrongs or just fobbing me off as usual which will just make them look even worse!

 

Pudst

x x x x

Edited December 1, 2008 by pudsters14
i am thick! LOL

[pudsters14]

Should I have recvd a termination notice? Just read this somewhere else and wondered?!? LOL

 

Pudst

x x x x

[steven4064]

Good stuff pudst

 

When you get (operhaps, if you get... ) amended POC, let us see it and we'll help with the amended defence.

[pudsters14]

Thanx Steven, thats brill. Nothing as yet but will post up as/when or IF anything turns up.... Pudst x x x x

[angel_1]

hiys Pudst,

 

keep and remain positive, lets see what they bring along, i think these people that come from the agency might think oh we have an easy case today, some poor person who dont know dot.,,.,,,,how wrong can they be when they get a cagger,,,,,

 

good on you and good luck for 2009

 

keep happy and fab help from all too

 

ciao MAZ

[pudsters14]

Thanx maz... will keep everyone updated... think I should get the order through from the court in the next few days... time is ticking for Linky Link tho.... Pudst x x x x

[upto the eyeballs]

Subscribing....Excellent work so far, awaiting my battle with link.

[pudsters14]

Hi all, no news from Court as yet. Rang them yesterday and they have a bit of a backlog on so they have said that the order should be out soon...

 

Will keep you updated as and when I know anything else! Not heard anything from Link regarding new POC!

 

Hiya uptotheeyeballs.... glad you have subscribed... if you have any questions etc just give me a shout, i'll be happy to help as much as poss.

 

Pudst

x x x x

[pudsters14]

Right no news from Court... still and no news from Link.

 

Pudst

x x x x x

[pudsters14]

Had the order from court... do you want me to post it up? Nothing from Link tho! Pudst x x x x

[steven4064]

Yes please

[pudsters14]

Hiya all, have a small look at this.... I will type word for word what the order says....

 

IT IS ORDERED THAT

 

The matter be allocated to the Small Claims Track.

 

The claimant do file and serve, by 4pm on the 19th December 2008, an amended particulars of claim detailing the basis upon which the claim is brought and how the sum of £3614.14 is calculated.

 

The defendant do file and serve, by 4pm on the 9th January 2009, an amended defence setting out; 1) if appropriate the amount of any sum admitted and 2) the basis upon which the claim (balance of the claim) is disputed.

 

The parties do file and serve, by the 2nd February 2009, 1) a statement from themselves and any witness upon whom the intent to rely and 2) copies of all the documents upon which they intend to rely with the originals being produced at the hearing.

 

The matter be listed for a small claim hearing on rhw 9th March 2009 at 12.00 and will take no longer than 2 hours.

 

It is hereby recorded that the claimant has today provided the defendant with a copy (for the first time) of the credit agreement to which the claim relates.

 

 

What do you think? What happens if they don't submit a new POC? Plus the credit agreement they say above is actually an application form and I can reiterate that in my defence etc... I think she put the bit in about the first time thing because link have been so obstructive and wouldn't give me any information etc...

 

Thoughts would be much appreciated.... Oh and can Link get that deadline extended for the POC? Only coz I go into hospital for an op early Jan and was going to get all my stuff done ready for the 9th Jan deadline but if they start messing with the dates (the judge set them around the fact I was in hosp etc) I may be in hospital when things are due in?!?

 

Just covering all bases really

 

Pudst

x x x x

[MAGDA]

Hiya all, have a small look at this.... I will type word for word what the order says....

 

IT IS ORDERED THAT

 

The matter be allocated to the Small Claims Track.

 

The claimant do file and serve, by 4pm on the 19th December 2008, an amended particulars of claim detailing the basis upon which the claim is brought and how the sum of £3614.14 is calculated.

 

The defendant do file and serve, by 4pm on the 9th January 2009, an amended defence setting out; 1) if appropriate the amount of any sum admitted and 2) the basis upon which the claim (balance of the claim) is disputed.

 

The parties do file and serve, by the 2nd February 2009, 1) a statement from themselves and any witness upon whom the intent to rely and 2) copies of all the documents upon which they intend to rely with the originals being produced at the hearing.

 

The matter be listed for a small claim hearing on rhw 9th March 2009 at 12.00 and will take no longer than 2 hours.

 

It is hereby recorded that the claimant has today provided the defendant with a copy (for the first time) of the credit agreement to which the claim relates.

 

 

What do you think? What happens if they don't submit a new POC? Plus the credit agreement they say above is actually an application form and I can reiterate that in my defence etc... I think she put the bit in about the first time thing because link have been so obstructive and wouldn't give me any information etc...

 

Thoughts would be much appreciated.... Oh and can Link get that deadline extended for the POC? Only coz I go into hospital for an op early Jan and was going to get all my stuff done ready for the 9th Jan deadline but if they start messing with the dates (the judge set them around the fact I was in hosp etc) I may be in hospital when things are due in?!?

 

Just covering all bases really

 

Pudst

x x x x

 

Hi Pudsters, if they don't respond by the deadline, you can apply to the court to have the claim struck out. They can apply for an extension, but knowing Link, they probably won't. They will either fail to respond at all, in which case you can request the claim be struck out, or they will respond at the 11th hour. Although the first, in my experience, is more likely. Good luck, seems to be going well for you so far, magda

[FANTASY CHARGES]

http://www.consumeractiongroup.co.uk/forum/show-post/post-1850418.html

 

THE ABOVE IS THE RESULT OF A DSAR ON LINK -- DON'T THINK YOU HAVE DONE ONE IT IS QUITE REVEALING

[pudsters14]

Hiya rcvd today the revised P.O.C. dated the 22nd Dec (which was 3 days later than the order from court!!!!!)

 

Have a looky look and let me know what you think, my amended defence has to be in by the 9th Jan but would prefer to get it out of the way asap. I also need to do my witness statement....

 

All the previous stuff is crossed out...then.....

 

PARTICULARS OF CLAIM

 

1. By an agreement made in writing between MBNA Europe Bank Ltd and the defendant for a "WXXXXXXXXX WXXXXXXX" standard credit card account.

 

PARTICULARS

 

(i) Date of agreement: 28/05/04

 

(ii) First card issued: 08/06/2004

 

(iii) Parties to the agreement: MBNA Europe Bank Ltd and Pudsters14

 

(iv) Number of agreement: XXXXXXXXXXXXX

 

(v) Card Number: XXXXXXXXXXXXXXXXXXXXXX

 

(vi) The agreement is regulated under the Consumer Credit Act 1974

 

(vii) Date of default: 01/12/2007

 

(viii) Date of default notice relied upon: 24th April 2008

 

 

2. Further to the account being called in the benefit of the debt has since been legally assigned to the Claimant via deed of assignment dated 21st January 2008, at which point the Claimant's cause of action arose. Notice of assignment was sent by the claimant to the defendant via first class post on 8th April 2008.

 

3. The claim was raised for the monies due under the legally assigned agreement to the claimant.

 

And the claimant claims

 

1. £3526.73 being the outstanding balance of those liabilities accrued by Pudsters14 due under the agreement together with a £100.00 litigation charge.

 

2. Interest pursuant to s.69 County Court Act 1984 at a rate of 8.000% per annum from 21/01/2008 to 04/06/2008 £87.35 and thereafter at a daily rate of £0.77 until judgement or sooner payment.

 

3. Fees £85.00

 

 

Followed by a statement of truth....

 

 

They have attached a copy of the application form, a copy of some terms and conditions, a copy of the letter introducing them to me (the fake copy that was never sent.... i have the original) and a statement of account thingy showing the account being created on their system

 

 

Couple of questions

 

1. Can they charge the Sect 69 interest from day 1 or at all?

2. What are the rules on fees etc? OFT?!? I thought these litigation fees were against the OFT guidelines.

3. Default notice they are relying upon is invalid... but what about the original default they have quoted from 2007?! What's that all about?

4. They still haven't broken down all the other stuff like insurance, other charges etc...

 

 

I don't think my defence will be massively different but are there any other major points I have missed? Really want to get this all boxed off before I have my operation in January...

 

Pudst

x x x x x

[pudsters14]

The judge was very interested in the fact that they are using fake letters that aren't true copies of the one i was sent and told me to write a whole chapter in my witness statement but just wanted some opinions,... are there any flaws in the P.O.C. i've missed?

 

Pudst

x x x x

[steven4064]

Hi pudst

 

They are not allowed to charge s69 interest on a regulated agreement but they can claim fees.

 

they still need an original agreement though - you should concentrate on that. A copy of random T&Cs will not do. CPR Practice Direction 16 paragraph 7.3 is the authority for the need for an original agreement (not a copy)

[atwozee]

3. Default notice they are relying upon is invalid... but what about the original default they have quoted from 2007?! What's that all about?

 

This will be the original default notice that MBNA would have sent out – you need to see a copy of it to see if it’s valid. I can’t see how you can amend your defence regarding the default notice unless you are sent a copy.

 

Regarding the agreement – the judge has ordered that the original is to be made available at the hearing. I don’t see how they can wriggle out of it.

[matsinlondon]

I think you'll find that MBNA never did issue a Default Notice. They more likely wrote saying that they intended to register a notice of default with the CRAs (without issuing a DN). In doing so they would be relying on the Banking Code issued by the Banking Code Standards Board. This sets out the basis on which subscribers feel it is fair to register a default. However, it doesn't overrule the law and the requirement to issue a DN in the prescribed format set down by CCA.

 

What this gives rise to question over is were MBNA acting legally in terminating and assigning the account to Link when it had not been defaulted according to CCA; were Link acting legally in demanding full payment when it had not been legally defaulted; who defaulted you with the second DN - Link or MBNA or jointly?

 

Bottom line if the account wasn't properly legally defaulted and terminated and something happened in the process of assignement and demands then the rest may not flow and not be legally valid.

[pudsters14]

Arrrr thanx guys.... am a bit lost,... need to get my defence re issued asap and then do my witness statement... will start posting some stuff up over the weekend and suggestions would be much appreciated... i know there isn't a lot that I can change because they haven't really sent me anything new! Thanx again for all your help and support! Oh and HAPPY NEW YEAR!!!!Pudst x x x x

[pudsters14]

Righto..... here's my new amended defence... last day is 2mrw (9th) so i'll be taking it 2mrw morning or this arvo....

 

 

Have a look please, please feel free to make any suggestions and alteration.... do you think I need to beef us the hearsay evidence bit (number 34)

 

 

 

 

1. I Pudsters14 am the defendant in this action and make the following statement as my amended defence to the claim made by Link Financial Ltd.

 

2. At the point where my defence was required I was not in possession of documents from the claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules.

 

3. On 15/05/20008 I requested disclosure of all the documents which the claimant is reliant upon to allow me to prepare my defence (see Exhibit PUD1). I requested the claimant supply this information in 14 days which I do not feel was unreasonable given that the claimant would surely hold such documentation as they had instigated legal action based upon such documents.

 

4. The claimant failed to supply the requested information within the requested time frame so accordingly I could only file a minimal defence. However, the claimant has now supplied some of the requested information, and now after consideration of the documents which have been supplied I can now make an amended defence to the claimants particulars which takes into account the information I have been sent.

 

5. On 30th May 2008 the claimant refused my request under the Civil Procedure Rules and has since still only provided me with very minimal documents. As a result it has still proven difficult to compose this defence without disclosure of the information requested, especially given that I am litigant in person. The claimant also stated that they were not entirely satisfied that I am their customer (Exhibit PUD2).

 

6. After consideration of the documents referred to in point 4 I consequently deny the allegations made in the Claimant’s Particulars of Claim and accordingly place the claimant to strict proof that I am indebted to them thereof.

 

7. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) for the reasons set out below in this defence and as a consequence it is unenforceable.

 

8. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

9. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

10. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement, and, A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

11. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement but in a separate document. There is no apparent link between the two documents. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

12. Further more on the copy of the credit agreement supplied there is a code at the bottom of the sheet, the code on the second document does not correspond with this at all. Therefore this adds to my belief that the documents are indeed separate and not linked in any way.

 

13. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulatedconsumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrastingthe provisions of the two schedules the Judge said:

 

 

"33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 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. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in theminimum terms) are to be found in Schedule 1."

 

14. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order.

 

15. Notwithstanding point 13, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

 

16. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

17. Further more the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

18. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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."

 

19. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

 

20. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit PUD3) unenforceable.

 

21. In addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

22. On 24th April 2008 I received a letter from Link Financial Limited. The letter was headed Default Notice served under section 87(1) Consumer Credit act 1974. The notice clearly states that the breach must be remedied before the 08/05/2008 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

 

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

23. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default

 

24. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

(2) The court may strike out a statement of case if it appears to the court -

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

25. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, this is confirmed by case law as referred to in points 13,17 and 18 of this defence. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

26. 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.

 

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

 

28. 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.

 

29. 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).

 

30. 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.

 

31. 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.

 

32. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received.

 

33. In addition to asking the court to order the disclosure of the original credit agreement, notice of default in the form required by the Consumer Credit Act 1974, and notice of assignment in the form required by the Law of Property Act 1925, the defendant also requests that the court order the claimant to disclose a list of all charges made to the account and a list of the costs associated with each charge for the last six years to prove that the debt amounts to the amount claimed. The defendant also respectfully asks for documents related to any insurance added to the debt.

 

34. The defendant would also like to draw the court’s attention to the ‘hearsay evidence’ that the claimant is currently relying on. The claimant is currently submitting a letter dated 8th April 2008 as being a true copy of a letter sent to me. This is not a true copy of the letter and is merely a document which has been produced by the claimant in an attempt to substantiate their claim. I believe the claimant is not being transparent, clear and truthful, which again is not allowing me a fair trial.

 

35. Regarding that which is denied, the claimant seeks to claim statutory interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum. The defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts Interest on Judgment Debts Order 1991 Section 2 (3)(a) which sets out that this is the case as this claim is in relation to a debt regulated by the Consumer Credit Act 1974.

 

36. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

37. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in 28/05/2004 the Consumer Credit Act 1974 is the relevant act in this case.

 

38. The defendant respectfully asks the permission of the court to further amend this defence when the above documents are provided by the claimant.

Statement of Truth

etc etc

Edited January 8, 2009 by pudsters14
it had my initials on it

[pudsters14]

Right i'm thinking of changing it to something like this......

 

 

34. The defendant would also like to draw the court’s attention to the ‘hearsay evidence’ that the claimant is currently relying on. The claimant is currently submitting a letter dated 8th April 2008 as being a true copy of a letter sent to me. This is not a true copy of the letter and is merely a document which has been produced by the claimant in an attempt to substantiate their claim. I believe the claimant is not being transparent, clear and truthful, which again is not allowing me a fair trial and is prejudicing the case against me.

 

I would ask that the claimant is put under strict proof thereof of their compliance with The Civil Evidence Act 1995. The Civil Evidence Act 1995 states that proof of the authenticity of the documents must be provided under section 8(1)(b). This is including, but not limited to,

 

'(i) a copy of the procedure(s) used for copying, storing and retrieving documents

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.'

 

 

What do you think of this addition, the judge was VERY interested in this when mentioned at the directions hearing.

 

Thanx

 

Pudst

x x x x

[atwozee]

Hi Pudst – first of all well done – looks like you’ve got the bit between your teeth!

Personally I would use the hearsay evidence argument to apply to the copy of the agreement as well – it’s just as important to ensure that MBNA made a valid copy of the agreement because it’s likely that the original won’t be available because it’s been destroyed – so if you can cast some doubt on the copying procedure for the agreement then you will weaken any case against you.

Something like this -

I would also like to draw to the courts attention that if the original signed agreement is not available for inspection by the court then the copy of the agreement referred to in the particulars of claim also falls under the category of hearsay evidence and I would ask that the claimant is put under strict proof thereof of their compliance with The Civil Evidence Act 1995.