MBNA, CCA received 5 mths after request! Requests for payment and threats aswell

[Fullyskinted]

OK, bit of an update. I submitted my defence in the timescales. See below:

 

Going through the paperwork, I also found TWO DNs! See below:

One for the arrears in Nov 2007 and one in Jan 2008 for the excess over limit (the limit was breached as they were charging me out of order fees and interest!)

The first one (to me at least) seems to be in order but Im not so sure on the 2nd one. The dates are way too tight, not even 14 days from conception!

 

Also, I now have instructions as per the attached Order: See below.

 

OK, my defence:

Defence

1. I, Fully Skinted, of ESSEX am the defendant in this action and make the following statement as my defence to the claim made by MBNA Europe Bank - the claimant. This all follows from a request for information that the defendant submitted in writing dated 2nd January 2007. A copy of the text body of the letter is attached, along with the claimaints apparent 'suitable' response which was recieved 16th May 2007 (along with a letter dated 9th May 2007).

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters and the contents of CPR Part 16;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

d) The claimant did not send a Letter Before Action as required under the Pre-Action Protocols.

CPR Part 16:

"7.3

Where a claim is based upon a written agreement:

(1)a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2)any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents)."

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

The relevant Act of Parliament in this Case

6. Firstly I will address the issue of which Act is relevant in this case, in case it is 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database

11 The repeal by this Act of-

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b)subsections (3) to (5) of that section, and

©the words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The Request for Disclosure

9. I will shortly be requesting the disclosure of information pursuant to the CPR 31.14A), which is vital to this case from the claimant.

10. Until I have received any such documentation requested, it is difficult to fully compose this defence without disclosure of the information requested, especially as I am a Litigant in Person.

11. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if any documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). 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

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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

13. It is submitted that if 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 then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

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 regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the 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 the minimum 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 points 12 and 13, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

16. The claimant is therefore put to strict proof that such a compliant document exists

17. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

18. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

19. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

20. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

Conclusion

 

21. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

22. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

23. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

24. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 9 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

To be honest, I havent sent in a CPR and I didnt expect to get a response like what I have so soon!

 

Here is their POC:

 

Please note the date that the date stated on the POC is 21/1/08. Thats the date of the DN for the excess on the account.?!?!? THoughts?

 

THeir Std Dis List of Docs: PLEASE NOTE: They actually state that the original agreement was destroyed!!! ( Im guessing they mean the application form?!?!?!)

 

 

 

 

The Order:

 

The two DNs:

 

Edited December 29, 2009 by Fullyskinted

[Fullyskinted]

If this thread should be put into the Legal Issues then please feel free to do so mods. Thanks

[pompeyfaith]

would be a good idea to type CPR PART 1 into search and have a read and if u think it is relevant use it in your defence i think it is as that is the courts overriding objective

[Fullyskinted]

Im not sure I follow you. Had a look at CPR Part 1 and, err, not sure what youre getting at.

[pompeyfaith]

both parties must be on a level footing which means the sols cannot sidestep any of the cpr rules and must treat u fairly and that includes the supply of docs

[pompeyfaith]

they must also have all their ducks in a row first before brlnging a claim to court

[Fullyskinted]

Well, just printing off the letter and List of Docs...

 

Ill upload my List later. Here's the letter Ive sent them:

 

MBNA Europe Bank Ltd Vs F Skinted

 

Please find enclosed my List of Documents

I can confirm a copy of the same has been filed at Court.

 

I can also confirm that I have recived your List of Documents dated 22/12/09

 

Can I take this opportunity to request fully legible copies of the following:

Credit Agreement 14/3/98

Terms and Conditions (from 14/3/98)

Default Notice

Notice of Termination

 

Could you also provide me with copies of all correspondence sent to myself from MBNA from October 2006 to verify my records.

Also, I would like copies of all documentation sent to me by "Global Vantedge" and "Debt Clear Recoveries and Investigations Ltd". Again, to verify my records.

Could you also provide me with the Deed / Notice of Assignment for both of these companies.

 

Regards,

 

FS

[Dinkjames]

Any news on your case with MBNA?

[Fullyskinted]

Well, I bottled it. A few months back now I caved and settled out of court. Ironic, as I settled for a lot more (to me) than I could have way back when they first started offering settlements which would have been done before any red marks would have been put on my Credit file!

 

I was getting really stressed and worried I might lose my house etc. So I bit the bullet and called them to discuss a settlement.

 

I still saved myself a few£k but I now have a VERY dented credit file as a result.

 

Funnily enough, it just reminded me where all my money had gone this year!

 

Still got the issue with the PPI on this card going on. The FOS have been 'dealing' with it for over 3 years now.... But that's another story.

 

THanks for all your help and advice over the years.

 

FS