MKDP N244 hearing / application for strike out

[Watt Tyler]

Hi all,

I am new to both Legal Beagles and the concept of “posting a thread”… so please bear with me if I am not clear in outlining the advice and guidance I am seeking.

A couple of months ago I received notice of a County Court claim against me by MDKP relating to an old Barclaycard debt of approx.7k.

I responded by sending a CPR 31.14 request to MKDP for a copy of the Credit Agreement and other documents referred to in their Particulars of Claim. I received no reply to this request or any on the numerous reminders I sent.

My guess is that this is MKDP’s normal Modus Operandi. Ignore or delay any CPR 31.14 request in the hope that the defendant misses the defence deadline thereby enabling them to obtain a default judgment. Even if a defence is filed in time the refusal to supply documents severely handicaps the defendant in terms of their response.

Being aware of this possibility, just before the defence deadline I applied to the court for a Directions Order requiring MKDP to comply with my CPR 31.14 request.

This was a N244 “Unless Order”/Application for Strike Out.

Surprise, surprise within a few days of MKDP being served with notification of the N244 hearing they sent me some documentation. The fact that they only sent this after being served the papers for the court hearing makes me wonder how confident they are in the paperwork they hold. I would have thought that, if they were confident that everything was in order, they would have sent the documents in response to my original request?

As far as the Credit Agreement is concerned they have sent me a copy of a signed Application form and what they themselves describe as a “Reconstituted Credit Agreement” (unsigned). My understanding is that all this should be in a single document signed and dated by both parties?

However, the N244 hearing is now only a few weeks away and I am keen to get whatever advice I can on how best to proceed. The points I am particularly concerned about are as follows:

1. I will obviously argue at the hearing that the reconstituted credit agreement supplied is not a valid document and therefore does not satisfy my CPR 31.14 request and that the case should be struck out if a valid credit agreement is not produced within 7 days of the N244 hearing.

1. However, I can easily see a situation whereby the Judge may decide that they have now replied to my CPR 31.14 request and it is not the purpose of a N244 hearing to rule on the validity of the documentation supplied (i.e. the case should proceed in order for this to be determined at the main hearing).

1. Does anybody have any experience of this scenario (and any advice on how strongly I should argue for an early strike out… or whether I should accept that all this will have to be decided when I defend the original claim?).

1. Although the application form and credit agreement are separate documents it does say on the application form “You have read and agree to the Barclaycard conditions”. Does my signature on the application form enable them to claim that I have read and agreed to the terms & conditions supplied separately.

Any comments or suggestions on any of the above would be very gratefully received.

[Kafka]

Re: MKDP N244 hearing / application for strike out

You mention the CPR request but not the CCA one that should also have been sent. Challenging the validity of the agreement is done under the CCA, not a breach of the CPR.

The acceptability of a reconstituted credit agreement is influenced by the date it was signed. When was this?

[Amethyst]

Re: MKDP N244 hearing / application for strike out

Afternoon

What did you ask for in the unless order application (and in your CPR request originally)

Presumably you also sent a CCA request for a copy of the agreement - if they have just sent you the signed agreement and terms, they haven't fully complied with the CCA request, and need to send you the terms as varied and a statement of account. However that isn't enough to make it unenforceable on its own. If the agreement has been sent in response to your CPR and application then it will cover what you asked for under the CPR.

They have produced the documents in response to your application, therefore if they have sent you all the docs (you haven't mentioned default notice or notice of assignment) the hearing is not required as the unless order is not required, and thus you should ask MKDP for the costs of the application and to agree for you to withdraw it and enter your defence instead. If not, then continue with the application hearing but I'd pop in a Witness Statement 7 days before stating what you have and haven't received since applying, just so the judge doesn't turn round and say well they've sent you everything, why are we here.

The agreement will be made up of the application and the terms, and it can be reconstructed. You should check through the terms and ensure they are the correct version. What year did you take out the card initially? and would you be able to photo/scan and upload a redacted copy of the agreement you have received.

You sound like you are on top of things and have done a good job so far.

Sharon
xx

[Watt Tyler]

Re: MKDP N244 hearing / application for strike out

Many thanks to Kafka & Amethyst for their initial comments.

I'll try to fill in some of the gaps.

1. The card was issued in 1999.

2. Section 78 CCA request was sent in November 2010 when the account was with Moorcroft.

3. Barclaycard eventually responded in January 2013 with the usual reconstituted agreement etc.

4. Things went quiet for a while until account passed to MKDP.

5. The documents eventually coughed up by MKDP in response to my CPR 31.14 request were essentially those provided by Barclaycard in their belated response to my earlier Section 78 request.

6. My CPR 31.14 also asked for copies of the assignment and default notice.

7. No assignment notice has turned up so far and this is obviously my basis for continuing with the N244 hearing. However, I’m not holding out too much hope for this one as I’m assuming they have a notice of assignment and this omission will be easily rectified.

8. However, I will take Amethyst’s advice and send a Witness Statement 7 days before the hearing pointing out that my CPR 31.14 request has been partially complied with but that a copy of the assignment is still missing. Amethyst, sorry to sound dumb… but who do I send the Witness Statement to?

9. I have also toyed with the idea of writing to MKDP pointing out that they haven’t sent a copy of the assignment. However, I have no wish to help them out… I’d rather see them scrambling round to find it if it’s still outstanding when we get to the hearing. However, I do have a slight concern that this may look bad in court… does anyone have any thoughts on this?

10. As regards the default notice… this is an interesting one since I think there may be a possibility of challenging this on the dates. The notice is from Mercers and is dated 27 May 2010 (Thursday). My understanding is that date of service is deemed to be two working days after the date of the notice for first class post or four days for second. Unfortunately I don’t know if it was sent first or second… I assume that they will claim first and so DOS will be two days on. Therefore, I make DOS Tuesday 1 June (Monday 31 May was a bank holiday). On this basis I should have been given until Tuesday 15 June to rectify the breach but the notice demanded payment before June 13 (Sunday). Have I got my timings right? Obviously this is a tricky area and if somebody can check my calculations it would be much appreciated.

11. Now on to the Credit Agreement… I have uploaded copies of the Application and Terms & Conditions as requested.

12. In answer to Amethyst’s question… I have no way of knowing whether the terms and conditions are correct since they contain no date or version or any reference of any sort. This is a separate document from the Application form and, as far as I can tell, could be anything from any time?

13. I must confess that Amethyst has now got me worried when she says that a reconstructed agreement is acceptable in court since I always believed that they would have to produce a copy of the signed original… have I got this wrong?

14. Amethyst has confirmed my original feeling that the N244 hearing will not be the place to challenge the validity of the agreement.

15. Therefore my plan is to hope they mess up with the notice of assignment at the N244 hearing. Failing that I will have to contest the claim on the validity of the CA and possibly the default notice at the main hearing.

Thanks for the help so far, any further comments in the light of the above would be most welcome

[Amethyst]

Re: MKDP N244 hearing / application for strike out

8. However, I will take Amethyst’s advice and send a Witness Statement 7 days before the hearing pointing out that my CPR 31.14 request has been partially complied with but that a copy of the assignment is still missing. Amethyst, sorry to sound dumb… but who do I send the Witness Statement to?

Not dumb at all. Send a copy to MKDP and a copy to the court where the hearing is being held - if you know the DJ mark it for the attention of him/her and clearly mark the case number and hearing date on the cover note.

9. I have also toyed with the idea of writing to MKDP pointing out that they haven’t sent a copy of the assignment. However, I have no wish to help them out… I’d rather see them scrambling round to find it if it’s still outstanding when we get to the hearing. However, I do have a slight concern that this may look bad in court… does anyone have any thoughts on this?

The Witness Statement should give MKDP prior notice that they are lacking in their documents. You need the notice of assignment to know if MKDP have the legal rights to claim the debt.

12. In answer to Amethyst’s question… I have no way of knowing whether the terms and conditions are correct since they contain no date or version or any reference of any sort. This is a separate document from the Application form and, as far as I can tell, could be anything from any time?

13. I must confess that Amethyst has now got me worried when she says that a reconstructed agreement is acceptable in court since I always believed that they would have to produce a copy of the signed original… have I got this wrong?

The application is a copy of the original signed and executed agreement.

The T&C's are reconstructed, I expect it was in teeny print on the reverse of the application originally although it is not referred to as overleaf or anything ... just you confirm you have read them - they do seem to contain all the prescribed terms. I agree there is no way of matching them up to the credit agreement though, as no terms are referenced specifically in the agreement front page, and there is not an interest rate to compare, additionally there do not appear to be any default charges / overlimit fees etc, only a term saying if you go overlimit or make a late payment you must pay it immediately.

[Amethyst]

Re: MKDP N244 hearing / application for strike out

I can't see the date on the application - what date was it taken out ? (edit: oh ignore me I'm being blind - 1999!)

[Amethyst]

Re: MKDP N244 hearing / application for strike out

Ahh this might help answer the lack of charges in the terms - http://www.legalbeagles.info/forums/...5678#post35678 - so that does add up to being right. Do you have any early statements to compare the interest rates with?

I have the T&Cs from 1999 where it simply states:

"16.3.. We will charge you for any losses or costs we have to pay if you break this agreement. We will continue to charge interest on any late payments both before and after any court judgement.

Which is the same as on the terms you have been sent.

[Watt Tyler]

Re: MKDP N244 hearing / application for strike out

Thanks for the further advice Amethyst, especially regarding the agreement. I had assumed that the agreement would be a separate document to the application form... wrong again!

I am slightly surprised that they can just provide an arbitrary reconstruction of the T & C's without the need to prove that they were part of (or directly connected with) the signed application. It seems that they can produce whatever they like, claim that it was printed on the back of the form, and the onus is then on the defendant to disprove this (very difficult to do 15 years after the event).

I'll try and find some old statements to verify the interest rate but am not hopeful after this length of time.

Do you think it worth contesting the credit agreement at all on the lack of provenance for the reconstituted T&C's... or is this just whistling in the wind?

Just a quick question on the Witness Statement discussed earlier with regard to the N244 hearing. If, on receipt of my WS flagging up the missing Notice of Assignment, MKDP then send it... should I then cancel the hearing even at short notice (suppose it turns up the day before for example). My concern about this would be recovering the cost of the application from MKDP. Even if they agreed to reimburse me... quite frankly I wouldn't trust them to follow through on this. Presumably if there was a court order instructing them to cover the cost of my application this would give me a better chance of getting the money out of them?

[Watt Tyler]

Re: MKDP N244 hearing / application for strike out

Just a further question on the assignment. Am I after a copy of the actual assignment from Barclaycard to MKDP or merely a copy of the notice of assignment supposedly sent to me (or both)?

Is there any specific format or wording that I need to look out for?

Many thanks.

[Watt Tyler]

Re: MKDP N244 hearing / application for strike out

MKDP mention the assignment of the account in their Particulars of Claim. I have therefore asked for a copy in my CPR 31.14 request but am not sure what to expect. Am I looking for a copy of the actual assignment from Barclaycard to MKDP or a copy of the notice of assignment supposedly sent to me? If somebody can clarify this point for me I would be most grateful.

[Amethyst]

Re: MKDP N244 hearing / application for strike out

Should be a letter from Barclaycard to you telling you they are assigning the account to MKDP. I'll find an example for you.

Ahh found a barclaycard one on here.

[Watt Tyler]

Re: MKDP N244 hearing / application for strike out

Thanks for that Amethyst... at least I know what I'm looking for now.

As you have previously suggested, I'm preparing my Witness Statement to send to MKDP and the court pointing out that I am still awaiting a copy of the assignment... I'll send this 7 days prior to the N244 hearing as you advised.

If MKDP respond by sending the missing notice of assignment should I then cancel the court hearing? Is there any accepted protocol on timescales here. For example, if I receive a copy of the assignment the day before the hearing would most people accept that this was too close to the wire for the hearing to be cancelled?

This probably seems like a very petty point of detail but I'm keen to follow the correct procedure if I can and not do anything that may look bad in court.

[Amethyst]

Re: MKDP N244 hearing / application for strike out

If the assignment is all that is missing, and the agreement is compliant, then you do have the option, if you wanted, of using the pending hearing as a negotiation tool with MKDP to get an out of court settlement / instalment via a Tomlin/Consent Order - which would leave you repaying the debt at a monthly amount but keep you out of having a CCJ against you for the next six years.

Default Notice wise - Brandon v Amex - Mr Brandon said that the default notice under sections 87 and 88 of the Consumer Credit Act 1974 did not provide the minimum statutory period of 14 days following the date of service to rectify the breach. The District Judge said that any error was de minimis.

The main argument is always the agreement, provision and compliance, and both of those have been satisfied in my opinion.

Basically you have to think what your defence will be after the application hearing and ensure that stands up.

It is easy for them to recreate the Assignment notice and they do it often.

[pt2537]

Re: MKDP N244 hearing / application for strike out

You mention the CPR request but not the CCA one that should also have been sent. Challenging the validity of the agreement is done under the CCA, not a breach of the CPR.

The acceptability of a reconstituted credit agreement is influenced by the date it was signed. When was this?

Indeed, the request under CPR 31.14 is for the Claimant to put on the table the document he mentions in his pleadings. If that document is a pile of horse manure and is illegible that becomes irrelevant as the Claimant has been asked to allow inspection of the document mentioned.

Challenges over the legibility of the agreement fall under the ambit of the Consumer Credit Act although one may argue it is impossible to ascertain that the agreement is enforceable if it is illegible but that is a point for pleading in the Defence not a reason for applying to the Court.

[Watt Tyler]

Re: MKDP N244 hearing / application for strike out

Thanks for the further guidance Amethyst. It's not looking good but I think I'll continue with the application hearing since there is an outside chance that MKDP may screw up (see that straw...). Assuming that they provide the missing notice of assignment before the hearing would I be within my rights to ask them for a cheque to cover the cost of my application and written confirmation of their agreement to a new date for me to file my defence in return for cancelling the application hearing?

If I just cancel the hearing without anything upfront I think I can probably whistle for my £155.

As regards possibly cutting a deal... when would be the best time to do this. I've read previously that there is normally some kind of arbitration service available prior to their claim against me going to court... should I use this or try to negotiate something independently?