Court allocation / Arrow Global/mbna debt demand + costs £1800

[bert100]

hi forum, to cut a long story short and as the hearing is this week i am putting forward the most relevant aspects of the claim and defence so far in the run up to court.


AGlobal paralegal has made a 8 point reply to my defence, stating
amongst many things:


"The claim relates to a regulated credit card agreement which is particularised in the claimants reply to defence dated 11th April 2014. A reconstituted copy is enclosed"
[a fax copy of what appears to be a mailshot, with my name and address clear ly copy/pasted in one of the boxes on it - the font and clarity of my name and address is in stark contrast to the rest of the document]


"the defendant failed to respond to a letter before action, served upon him by first class post and a claim was issued through Northampton CCBC , The ccbc issued the claim form and served the defendant with the claim form"


"The Defence effectively amounts to a demand for proof of the Claim by way of request for documentation. Furthermore the defendant issued an undated request for documentation pursuant to s.78 c/a 1974, received to the claimants offices on 20 march 2014. This request was complied with by way of the Reply to defence dated 11 apr 2014, as well as by providing the additional documentation exhibited in the witness statements including the notice of assignment.


"claimant contends that there is more than sufficient evidence before the court to establish that the defendant entered into a credit agreement with mbna, the account was duly assigned to the claimant and the sums claimed are due and owing. In the interest of costs and proportionality the claimant asks the court to enter judgement for the amount claimed as per the particulars of claim together with costs payable forthwith



I may need a bit of help in court, namely


1. I sent the c/a request pursuant s77/78 on 5th march 2014 recorded delivery, they received it on 10th march, and in reply to it (as well as returning my 1 pound postal order) they said "we ask you to note that mbna remains the creditor of the agreement. AG is merely the purchaser, accordingly we return your fee"


In jan 2012 i have the letter of assignment "we notify you that mbna has assigned all of its respective rights, title and interest w.r.t the amount due to AGlobal ltd


In my request letter [I forgot to date it but I have the recorded delivery receipt 4th march] i stated the following
___________
"This letter is a formal request pursuant to s.77/78 of the consumer credit act 1974. I require you to provide me with a true copy of the credit agreement relating to account 540x xxxx xxxx, together with any other documentation the Act requires you to provide.
I expect you to fully comply with this request within the statutory time limit. You are reminded that should you fail to comply with my request the provisions of s.77 will apply.


If it is your view that you are not the creditor, s.175 of the c/a 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor as defined by s.189 If you contend that you purchased the rights but not the duties of any agreement you are reminded that s.189 of the act is clear that an assignment is both right and duties.


your attention is drawn to ss.5(2) 3(b),6 and 7 of the Consumer protection from Unfair Trading


I enclose a postal order in the sum of £1 which is the statutory fee


If you are unable to comply fully and properly with this request you should confirm this in writing at the earliest opportunity and certainly within the statutory time limit for compliance"
_____________


in their first reply to to my cca request together with their initial reply to defence, they say they received it on the 10th march, but in the "first witness statement" of the paralegal, he says it was received on the 20th march.




Should I raise these matters with the judge?


a) there is a clear discrepancy of 10 days in the statements of when they got my request.
b) did they not comply with my s.78 request at all, are they denying it can be now in dispute?
c) whats the relationship between first reply to defence and 1st witness statement?
1st reply to defence states things like storey v hsbc as case law for striking my defence out.
d) the reconstitution of the agreement is very poor indeed. The copied application form from 1996 as part of the reconstituted ca is not something that i can admit to having signed because it says "now that you have said yes, you are approved" - i do not recall being asked if i wanted a card, so how can I have said 'yes' as it states in the form?




many thanks.
b.

[Kafka]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

The background to all of this isn't clear.

Presumably this was for a credit card, but what was the process of defaulting on the account and how did they respond?
What penalty or other charges were added to the account?
Did you send a request for disclosure under the CPR when legal action was threatened or started?
What defence did you submit to the court?

[FlamingParrot]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

Welcome to LB

"The claim relates to a regulated credit card agreement which is particularised in the claimants reply to defence dated 11th April 2014. A reconstituted copy is enclosed"
[a fax copy of what appears to be a mailshot, with my name and address clear ly copy/pasted in one of the boxes on it - the font and clarity of my name and address is in stark contrast to the rest of the document]

As it says its a reconstituted copy, it wouldn't be a photocopy of the document you allegedly signed. You say this appears to be a mailshot, could it have been a simplified application form that you filled out and returned, and the terms were sent later with the card? I'm saying this because that appears to have been the case with a lot of MBNA applications.

"the defendant failed to respond to a letter before action, served upon him by first class post and a claim was issued through Northampton CCBC , The ccbc issued the claim form and served the defendant with the claim form"

How much is the claim for? Non-compliance with pre-action conduct can have an effect on costs, however, costs are not normally awarded in the small claims track, most claims below £10k would have been allocated to small claims.

"The Defence effectively amounts to a demand for proof of the Claim by way of request for documentation. Furthermore the defendant issued an undated request for documentation pursuant to s.78 c/a 1974, received to the claimants offices on 20 march 2014. This request was complied with by way of the Reply to defence dated 11 apr 2014, as well as by providing the additional documentation exhibited in the witness statements including the notice of assignment.

"claimant contends that there is more than sufficient evidence before the court to establish that the defendant entered into a credit agreement with mbna, the account was duly assigned to the claimant and the sums claimed are due and owing. In the interest of costs and proportionality the claimant asks the court to enter judgement for the amount claimed as per the particulars of claim together with costs payable forthwith

This isn't at all the issue here, the idea of requesting a copy of your agreement would be to get them to show there was a properly executed agreement with all the prescribed terms to start with, without this the account would be unenforceable, even if it was later on, duly assigned, etc. :blah: :blah:

[FlamingParrot]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

1. I sent the c/a request pursuant s77/78 on 5th march 2014 recorded delivery, they received it on 10th march, and in reply to it (as well as returning my 1 pound postal order) they said "we ask you to note that mbna remains the creditor of the agreement. AG is merely the purchaser, accordingly we return your fee"

In jan 2012 i have the letter of assignment "we notify you that mbna has assigned all of its respective rights, title and interest w.r.t the amount due to AGlobal ltd

In my request letter [I forgot to date it but I have the recorded delivery receipt 4th march] i stated the following
___________
"This letter is a formal request pursuant to s.77/78 of the consumer credit act 1974. I require you to provide me with a true copy of the credit agreement relating to account 540x xxxx xxxx, together with any other documentation the Act requires you to provide.
I expect you to fully comply with this request within the statutory time limit. You are reminded that should you fail to comply with my request the provisions of s.77 will apply.

If it is your view that you are not the creditor, s.175 of the c/a 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor as defined by s.189 If you contend that you purchased the rights but not the duties of any agreement you are reminded that s.189 of the act is clear that an assignment is both right and duties.

your attention is drawn to ss.5(2) 3(b),6 and 7 of the Consumer protection from Unfair Trading

I enclose a postal order in the sum of £1 which is the statutory fee

If you are unable to comply fully and properly with this request you should confirm this in writing at the earliest opportunity and certainly within the statutory time limit for compliance"
_____________
in their first reply to to my cca request together with their initial reply to defence, they say they received it on the 10th march, but in the "first witness statement" of the paralegal, he says it was received on the 20th march.

Should I raise these matters with the judge?

a) there is a clear discrepancy of 10 days in the statements of when they got my request.
b) did they not comply with my s.78 request at all, are they denying it can be now in dispute?

I would say the matters raised above shouldn't make much difference since they have produced a recon of the agreement. It would be more fruitful to look back at the actual document. As per Carey vs HSBC, a recon is acceptable, however, it has to be honest and accurate. Could you remove your personal details and post up the document you received? :typing:

c) whats the relationship between first reply to defence and 1st witness statement?
1st reply to defence states things like storey v hsbc as case law for striking my defence out.

I'm not familiar with such case, could it perhaps refer to Carey v HSBC? :noidea: This was the case that set the precedent for making reconstituted agreements, acceptable.
http://www.legalbeagles.info/forums/...recreated-docs
This is from PT2537's blog, PT is a consumer credit specialist and a member of the Legal Beales site team. :yo: :beagle:
http://paulatwatsonssolicitors.wordp...dit-agreement/

In Carey v HSBC Bank Plc HHJ Waksman QC made it clear that the creditor does not need the original agreement to produce a true copy, he can rely on records held in computers and other sources to produce a true copy of the agreement, the only caveat is that the copy must be honest and accurate.

[FlamingParrot]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

d) the reconstitution of the agreement is very poor indeed. The copied application form from 1996 as part of the reconstituted ca is not something that i can admit to having signed because it says "now that you have said yes, you are approved" - i do not recall being asked if i wanted a card, so how can I have said 'yes' as it states in the form?

Unless I'm missing something here,:confused2: if you filled out an application form for a credit card, it would be safe to assume that you wanted a card, even if there wasn't a question asking you explicitly whether you wanted one.

If you received a mailshot, having taken the trouble of filling out your details and returning the form, as opposed to putting the whole thing in the bin, would amount to saying 'yes'.

[bert100]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

Hi thanks for the reply, I understand it can be hard to catch up on the thread of correspondence, so here I have typed out all the correspondence, it will take 5 mins or so to skim through, but in it is everything that I know to have sent and recieved.


I have no experience with county courts and judges.

is my only hope to say the account is in dispute as they did not reply to my s.77 request in a timely manner?
They have used a date stamped and barcoded copy of it as part of their evidence, 10th march, and their reply was about a month later, telling me that "mbna remains the creditor, agg is merely the purchaser"
- what is going on here i do not understand, does a notice of assignment not mean "all respective rights title and interest" have been transferred

Any advice on what to bring and say to the judge greatly appreciated! Do I need to draft a written reply and hand it to the judge in the morning?



Begin correspondence/event transcript...
t******************************
Last payment to mbna jan/2010
******************************
[ Recieved Correspondence ] Notice of assignment Jan 2012
" we write to you to to notify you that that mbna has assigned all of its respective rights title and interest in respect of the amounts due under the above referenced account (including the right to receive payment of the outstanding balance to AGG Ltd"


*******************************************
[ Recieved Correspondence ] Early Nov/2013 notice of intended action
"Dear sir, we write to advise you that a claim form has been issued at the court, the court will serve a claim on you shortly..."

*************************************
[ Recieved Correspondence ] Late Nov/2013
Claim for arrived from Nothampton


"WC Solicitors...the Claimant claim is for ...being monies due from the defendant to the claimant in respect of a regulated credit card agreement between the defendant and MBNA (no.54xxxxx) and assigned to the claimant on Dec/2011, notice of which has been provided to the defendant. The defendant has failed to make payment in accordance with the agreement and a default notice has been served pursuant to the c/a 1974. The claimant claims the sum of ..."

*************************************



[ Sent Correspondence ] Mid Dec 2013, via government gateway....


"This defence is filed and served without prejudice to the
defendant's case that the particulars of claim do not disclose
reasonable grounds for bringing a claim.
In the event that the claim is not properly particularised, the
defendant will apply to strike out the claim and/or for summary
judgement in respect of the same.


No admissions are made by the defendant of any indebtedness to the
claimant.
No admissions are made as to the amount owed by the defendant in
respect of an unidentified account with the claimant.
On allocation the defendant invites the court to direct that there
be a case management conference in order for the court to consider
the making of appropriate orders to give the claimant the
opportunity to properly particularise the claim.


From the brief details stated on the claim form, the defendant
seeks clarity from the claimant and requires further details of
the ‘credit card agreement’. The defendant has [will] therefore made a
request under s.77 and s.78 of the consumer credit act 1974 to
receive a copy of the executed agreement and any other document
referred to in it (a copy of which has been posted to the court).
If the claimant confirms that the alleged agreement is regulated
under s8 of the Consumer Credit Act 1974 (CCA 1974) and does not
fall within any of the exemptions in s16 CCA1974 or under the
Consumer Credit (Exempt Agreements) Order 1989 but fails to
provide a true copy of the original credit agreement, then under
s61(1)(a) CCA1974, a regulated agreement is not properly executed
unless a document in the prescribed form itself containing all the
prescribed terms and conforming to the regulations under s60(1) is
signed in the prescribed manner both by the debtor or hirer and by
or on behalf of the creditor or owner.


Under s65(1) CCA1974 an improperly executed regulated agreement
is enforceable against the debtor on an order of the court only.
Under s127(3) CCA1974 the court shall not make an enforcement
order under s65(1) if s61(1)(a)(signing of agreements) was not
complied with, unless a document (whether or not in the prescribed
form and complying with the regulations under s60(1) itself
containing all the prescribed terms of the agreement) was signed
by the debtor or hirer (whether or not in the prescribed manner).


From the brief details stated on the claim form, the defendant
seeks clarity from the claimant and requires further details of
the ‘regulated credit card agreement' in addition to the notice of
assignment alleged to have 'been provided to the Defendant'. The
defendant would therefore remind the court of the requirement
of the Civil Procedure Rules (CPR). Paragraph 7.3 of Practice
Direction 16:


7.3 Where a claim is based upon a written agreement:
(1) a copy of the contract or documents constituting the agreement
and assignment should be attached to or served with the
particulars of claim and the original(s) should be available at
the hearing.
Until the claimant remedies the lack of particulars in the
Particulars of claim, including evidence of assignment to claimant
on 20/12/2011, the defendant is unable to plead and reserves the
right to plead upon further particulars.


The defendant believes the facts stated in this defence to be
true.
"
*************************************



[a few court papers notifying receipt, defended claim etc arrives ]


*************************************



[ Recieved Correspondence ] Late Jan 2014
'debt owed to AGG ltd, assigned by mbna


we are the claimant in this matter


we refer to the above and your defence dated late dec2013, the contents of which are noted.


we enclose a notice of change of solicitor by way of service on you. the claim is now being dealt with by our in house litigation team...


We note that your defence is based on the grounds of a c/a doc request. Please note that we still await receipt of copies from the originating creditor. Upon receipt of the relevant information, we will forward the same onto you...
We hope that this information helps you to identify the account and look forward to receiving notice that your defence has been withdrawn

*************************************



[ Sent Correspondence ] Late feb 2014
Allocation questionnaire from court returned to Northampton CC, on it I filed...
"sec.3 other information...


Awaiting update of status of claimant wrt s.77 c/a 1974, Formal request pursuant to s.77/78 c/a 1974 is being made wrt info cited by claimant. Compliance with the statutory time limit of the request will have a direct influence as to wether the claimhould be struck out on account of being formally in dispute "

*************************************



[ Sent Correspondence ] Earrly March 2014
Formal Request TO AGG Ltd s.77/78 c/a 1974

"This letter is a formal request pursuant to s.77/78 of the consumer credit act 1974. I require you to provide me with a true copy of the credit agreement relating to account 540x xxxx xxxx, together with any other documentation the Act requires you to provide.
I expect you to fully comply with this request within the statutory time limit. You are reminded that should you fail to comply with my request the provisions of s.77 will apply.


If it is your view that you are not the creditor, s.175 of the c/a 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor as defined by s.189 If you contend that you purchased the rights but not the duties of any agreement you are reminded that s.189 of the act is clear that an assignment is both right and duties.


your attention is drawn to ss.5(2) 3(b),6 and 7 of the Consumer protection from Unfair Trading


I enclose a postal order in the sum of £1 which is the statutory fee


If you are unable to comply fully and properly with this request you should confirm this in writing at the earliest opportunity and certainly within the statutory time limit for compliance"




*************************************



[ Recieved Correspondence ] 11 April 2014
"AGG vs me
We write with reference to the above proceedings, find enclosed by way of service upon you the reply to the Defence in accordance with the Court's Order of 21 march 2014.
We trust this will also suffice as a response to your undated letter received to this office on 10 march 2014, requesting documentation pursuant to s.77/78 c/a 1974. We ask you to note that mbna remains the creditor of the agreement AGG is merely the purchaser. Accordingly we return your fee of £1.00


-included with above is reply to defence sent to court -

-Reply To Defence-
1. Statement of the case is made in compliance with Order of Deputy District Judgexxxxxxx of March 2014, and is produced by AGG ltd the asset manager of claimant in these proceedings.


2 The Defence amounts to a request for copies of documentation on which the claimant relies to prove its claim, it is not considered necessary to address the defence paragraph by paragraph.


3. The claim relates to a credit card agreement ....and entered into between the defendant and mina on or around sept 1996


4. Due to the age of the agreement mina was unable to retrieve a true copy of the original application form. However a reconstituted copy of the Application form agreement and terms and conditions are exhibited ...


5. the claimant avers that a reconstituted copy of the agreement is sufficient to prove its claim and relies on the authority of Carey v hsbc [2009] ewhc 3417 (qb) in this respect.


6. the claimant is a well established international debt purchaser which squires charged-of consumer debt. The claimant acquired the defendants account from mina on or aboutDec 2011 and notice of assignment was served on the defendant on January 2012.


7. The balance outstanding on the agreement on purchase by the claimant was £18xx.xx no payment have been made towards the debt and the balance remains due and owing.
A true copy of the final statement of account is exhibited...




8. The claimant notes that the defendant has not suggested any substantive reasons as to why the debt should not be paid. The claimant respectfully submits that this matter is a straightforward credit card debt, which has been validly assigned to the claimant from mina and remains unpaid. In the circumstances the claimant invite the court to exercise its case management powers under cpr 3.4 to strike out the defence and allow the claimant to request judgement together with costs payable forthwith.
Statement of truth
The claimant believes that the facts stated in this reply to Defence are true.
I am duly authorised by the claimant to sign this agreement...
(signed...litigation paralegal)

*************************************



[ Recieved Correspondence ] 19 may 2014
Witness statement of Paralegal


I xxxxx,xxxxxxx, am employed as a Litigation Paralegal by AGG Ltd the asset manager of the Claimant and am duly authorised to make this statement


This statement is made from the facts knowledge and belief....being the claimants files and my own personal involvement in the matter.


1. The claim relates to a regulated credit card agreement which is particularised in the claimants reply to defence dated 11 apr 2014, A reconstituted copy of the agreement is enclosed...


2. The defendant defaulted under the terms and conditions of the agreement by failing to maintain the minimum payments due. A final statement of account is enclosed and exhibited...


3. AGG ltd is a well established international debt purchaser which acquired charged-off unsecured consumer debt. AGG ltd acquired the Defendants account from mina on to about xx December 2011. A reconstituted copy of a letter notifying the defendant of the assignment send on or around xx jan 2012 is exhibited...


4. the outstanding balance as at the date of assignment was £18xx.xx. The claimant placed the matter with "FreddySon Int" following assignment, in an attempt to resolve the matter without the need for litigation, however this did not prove fruitful. Subsequent attempts to settle the proceeding were made by "prossendales" and "boo smiths" from june to sept 2013.
These efforts to resolve the matter were unsuccessful and the claimant subsequently instructed its solicitor, "Bilkin hackman" to issue proceedings with respect to recovery of the balance.
5. The defendant failed to respond to a letter before legal action.


6. The defence effectively amounts to a demand for proof of the claim by way of a request for documentation. Furthermore the defendant has issued an undated request for documentation pursuant to s.78 of the consumer credit act 1974, received to the claimants offices on 20 march 2014. This request was complied with by way of the reply to the defence dated 11 april 2014 ,as well as by providing the additional documentation exhibited to this witness statement....
7. The claimant contends there is more than sufficient evidence before the court to establish that the defendant entered into a credit agreement with mina, the account was duly assigned to the claimant and the sums claimed are due and owing. In the interest of costs and proportionality the claimant asks the court to enter judgement for the amount claimed as per the particulars of the claim together with costs payable forthwith.


STATEMENT OF TRUTH
I believe the facts stated in this witness statement are true....
************************************************** ************************

[bert100]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

Reconstituted credit card application I managed to upload 5 pages only...

The first 2 pages are landscape and the rest are portrait. Would this indicate that the terms and condition are from another document revision which they pasted in, -so would it be a twice reconstituted credit agreement? How reconstituted is reconstituted?
Would this be my best defence?

many thanks

[bert100]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

Also as the hearing is first thing tomorrow, should I send a CPR31.14? I know i have left it late, but is it better to do so 1st thing before court so I can put that in a defence file, perhaps its may help adjourn the case until I can afford a lawyer.

Also would anyone know if I can appeal if judgement is entered against me and on what grounds, again, letting a Lawyer take over.

Many thanks for input, time is really against me here!
bert.

[FlamingParrot]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

Also as the hearing is first thing tomorrow,

You may have gone to court already if that was the case. :confused2:

I'm sorry didn't get a chance to look at all you've posted last night, it was only posted in the evening...

should I send a CPR31.14? I know i have left it late, but is it better to do so 1st thing before court so I can put that in a defence file, perhaps its may help adjourn the case until I can afford a lawyer.

It is a bit late for that at this stage, that should have been the first step before allocation. Once the claim is allocated to small claims, Part 31 of the CPR wouldn't apply.

Also would anyone know if I can appeal if judgement is entered against me and on what grounds, again, letting a Lawyer take over.

Possibly, but that would depend on the circumstances.

Do update us after your hearing. :typing:

In the meantime, keeping our fingers crossed for you. ray:

[bert100]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

thanks for the good wishes, I got steamrollered by the reconstituted doc being acceptable, no matter how much i tried to point out the other matters, the judge never put my points over to the sharp lawer regarding s77/8 and s127.3 given that it was pre 2007.

[bert100]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

Rest of reconstituted agreement, (posted up after case) as judge spent most of the time looking at these -I thought I'd try and re-upload.

What I am annoyed about most is that i said I moved address in 2008, (the 2nd (blanked out) address on page 3 can only have been added after 2008, so the T+C's are bolted on to an unsigned CCA from 1996, i told the judge the agreement is spanning over 12 years and 1 change in the law (the cca 2006).

I thought the judge would give weight to my argument for s127.3 which applies before 2006, or at least put it to the claimant which he did not.

My question is:-

IF a judge applies 2008-2011 t+c's to a reconstituted agreement from before 2006 (1996) it surely means that any changes in the law which are which are non-retrospective are made retrospective by the actions of a small track claims Judge?

[FlamingParrot]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

Sorry to hear that.

I don't seem to be able to see any of the images you posted... :noidea: There's just blank boxes.

[Amethyst]

Re: Court allocation / Arrow Global/mbna debt demand + costs £1800

It'll be that dastardly IE again. I'll find a fix for it tmw.

Can you view on FF FP ?