Help needed with defence against MKDP claim

[Watt Tyler]

Hi All,

I have received a claim from MKDP (through Northampton CC) for an old Barclaycard account (not statute barred though).

This is similar to another Barclaycard debt that I posted on a previous thread... but this is older and the documentation supplied in response to my CPR 31.14 request is different.

I have concerns about the copy credit agreement they have sent (copy attached).

This is two separate documents... a copy of the original application form then a copy of the T&C.

My 3 main concerns are.

1. Much of the application form is illegible.
2. I thought a credit agreement had to be signed & dated by both parties... but there is no Barclaycard signature or date on the application form. Does this matter?
3. There appears to be a date of September 98 in the bottom right hand corner of the T&C but my signature on the application form is dated July 1997... so the T&C seem to date from more than a year after my application.

Does anybody have any experience of contesting a claim based on any of the above considerations?

Any comments or suggestions would be very much appreciated.

[FlamingParrot]

Re: MKDP claim for old Barclaycard debt

1. Much of the application form is illegible.
2. I thought a credit agreement had to be signed & dated by both parties... but there is no Barclaycard signature or date on the application form. Does this matter?

No, I doubt there are many agreements out there signed by the creditor.

3. There appears to be a date of September 98 in the bottom right hand corner of the T&C but my signature on the application form is dated July 1997... so the T&C seem to date from more than a year after my application.

I can see it clearly, if you applied in 1997, that means the terms are NOT the ones you agreed to.

Does anybody have any experience of contesting a claim based on any of the above considerations?

Any comments or suggestions would be very much appreciated.

I know it's hard to remember what happened 17 years ago, but any defence would be based around stating what you actually signed (or not as the case may be), rather than just the fact they've supplied you with the wrong terms. Do remember how you applied for this card? Was it over the phone, in branch, a mailout, an advert? In some cases, people would just have filled out a short application form providing their details and not signed an agreement containing all the prescribed terms, then the terms would have been supplied with the card.

[Watt Tyler]

Re: MKDP claim for old Barclaycard debt

Thanks for your comments FlamingParrot. In answer to your question about how the card was applied for... from memory I think it was in reply to a mail shot. I don't recall seeing any terms & conditions with the mail shot but it's possible, as you suggest, that some were sent with the card... however, as already highlighted, the copy supplied dates from a year after the account was opened anyway.

As you say, this was 17 years ago and so it's difficult to be 100% certain about what (if anything) was supplied when.

Surely any documentation supplied has to be legible. Given the fact that much of the copy application form is unreadable should I not be arguing that it does not constitute a valid credit agreement anyway?

Any further comments would be very welcome.

[FlamingParrot]

Re: MKDP claim for old Barclaycard debt

Thanks for your comments FlamingParrot. In answer to your question about how the card was applied for... from memory I think it was in reply to a mail shot. I don't recall seeing any terms & conditions with the mail shot but it's possible, as you suggest, that some were sent with the card...

Ah, but if they were sent with the card they wouldn't have been present at the time you signed allegedly agreeing to them, would they? By the time they sent the card you'd already signed the alleged agreement and your application had been approved.

however, as already highlighted, the copy supplied dates from a year after the account was opened anyway.

That means they were not the terms you agreed to, therefore you've got an application form without prescribed terms.

As you say, this was 17 years ago and so it's difficult to be 100% certain about what (if anything) was supplied when.

Surely any documentation supplied has to be legible. Given the fact that much of the copy application form is unreadable should I not be arguing that it does not constitute a valid credit agreement anyway?

Any further comments would be very welcome.

I'd suggest looking at this thread: http://www.legalbeagles.info/forums/...ity#post488768

[Watt Tyler]

Re: MKDP claim for old Barclaycard debt

Thanks for your further input FlamingParrot.

I'm getting a better idea of how to proceed but I can see that it may be quite tricky to get the wording right in my defence.

Problems that I foresee are:

1. The application form may include a statement along the lines of "I agree to the Barclaycard Terms & Conditions etc.".
It's impossible to say because so much of the application form is unreadable. I've uploaded a higher resolution copy but a lot of it is still impossible to read.

2. My feeling is that no T&C were sent with the application form but how do I word this? If I say that "I don't think any T&C were provided" this will no doubt be manipulated to imply that I don't know one way or the other.

3. On the other hand if I state that "I definitely did not receive any T&C" I will no doubt be asked how I can be sure of events which took place 17 years ago... and, of course, I cannot be 100% certain after this passage of time.

4. This all comes back to the conundrum of how do you prove a negative? They can provide whatever they like and claim that it's valid and the onus is then on the defendant to somehow disprove this.

Again, any further comments/suggestions would be very much appreciated.

[Watt Tyler]

Re: MKDP claim for old Barclaycard debt

Hi All,

I'm currently trying to formulate my defence for this claim but am struggling to get the wording right. I reproduce the points from my previous post which I am still wrestling with...

2. My feeling is that no T&C were sent with the application form but how do I word this? If I say that "I don't think any T&C were provided" this will no doubt be manipulated to imply that I don't know one way or the other.

3. On the other hand if I state that "I definitely did not receive any T&C" I will no doubt be asked how I can be sure of events which took place 17 years ago... and, of course, I cannot be 100% certain after this passage of time.

Any comments/suggestions regarding how best to make my case would be welcome.

Many thanks.

[Watt Tyler]

Help needed with defence against MKDP claim

Hi All,

I need to put together a defence against a MKDP claim for an old Barclaycard debt.

My defence will be based around the following:

1. Much of the copy signed application form supplied in response to my CPR 31.14 request is illegible.

2. I do not believe any T&C were supplied with the application form. Therefore the signed agreement did not include all the prescribed terms.

3. The copy T&C supplied in response to my CPR 31.14 request are dated more than a year after the account was opened and so are clearly not the T&C applicable at the time.

However, I'm not sure how to set my defence out... is there an accepted format?

Also, I'm unsure how much to include in terms of case law and references to other cases. I intend to submit my defence using MCOL and so am wary of including too much detail (is there a space limitation?).

My plan is to expand on my defence during the court hearing and bring in the necessary case references then. However, I am concerned that I may not be able to do this if I have not listed all such references in my original defence?

Does anyone have any advice or guidance on any of this?

Many thanks.

[Watt Tyler]

Re: Help needed with defence against MKDP claim

It doesn't look like anybody's able to help with any of the above questions. I know this is a bad time to be asking people to look at this sort of stuff since everybody's got better things to do in the run up to Xmas.

However, here is a more straightforward question that somebody may be able to help with...

My defence will be based around the documents supplied by MKDP in response to my CPR 31.14 request. What I don't know is whether they have to stick with these documents when we get to the court hearing or whether they can switch to a different/better set of documents to undermine my defence? If they can produce different documents to those supplied in response to the CPR 31.14 request then that would appear to make a complete nonsense of the CPR procedure... but, then again, who said that the law in this area was meant to be fair?

Any thoughts on the above would be most welcome.

[FlamingParrot]

Re: Help needed with defence against MKDP claim

It doesn't look like anybody's able to help with any of the above questions. I know this is a bad time to be asking people to look at this sort of stuff since everybody's got better things to do in the run up to Xmas.

I'm sorry your post above was missed, this is a large forum and that happens on occasion. masred:

However, here is a more straightforward question that somebody may be able to help with...

My defence will be based around the documents supplied by MKDP in response to my CPR 31.14 request. What I don't know is whether they have to stick with these documents when we get to the court hearing or whether they can switch to a different/better set of documents to undermine my defence? If they can produce different documents to those supplied in response to the CPR 31.14 request then that would appear to make a complete nonsense of the CPR procedure... but, then again, who said that the law in this area was meant to be fair?

Any thoughts on the above would be most welcome.

When you say a 'better' set of documents, presumably you mean more legible ones? Although recons are allowed, they should be honest and accurate, so they can hardly produce a totally different set of documents with different information on them.

Would be good if you could post up what they sent you in response to your request in the first place (remove all personal details). :typing:

What was the date on the claim so we can calculate how long you have to submit your defence? :clock:

[FlamingParrot]

Re: Help needed with defence against MKDP claim

I need to put together a defence against a MKDP claim for an old Barclaycard debt.

My defence will be based around the following:

1. Much of the copy signed application form supplied in response to my CPR 31.14 request is illegible.

Is it legible enough for you to see whether your details as stated are accurate?

2. I do not believe any T&C were supplied with the application form. Therefore the signed agreement did not include all the prescribed terms.

3. The copy T&C supplied in response to my CPR 31.14 request are dated more than a year after the account was opened and so are clearly not the T&C applicable at the time.

No, they definitely wouldn't be the terms from inception if they are dated LATER than the account opening date.

However, I'm not sure how to set my defence out... is there an accepted format?

Also, I'm unsure how much to include in terms of case law and references to other cases. I intend to submit my defence using MCOL and so am wary of including too much detail (is there a space limitation?).

My plan is to expand on my defence during the court hearing and bring in the necessary case references then. However, I am concerned that I may not be able to do this if I have not listed all such references in my original defence?

Does anyone have any advice or guidance on any of this?

Many thanks.

Can you tell us a bit more? When did you apply for the card and how much are they claiming?

Could you type up the particulars of claim?

What sort of cases references are you planning to quote in your defence and why do you think they are relevant?

[FlamingParrot]

Re: Help needed with defence against MKDP claim

I have found another thread you'd previously started on this subject: http://www.legalbeagles.info/forums/...939#post497939

I'll see if admin can merge them to make things clearer and easier to follow. :nerd:

[Watt Tyler]

Re: Help needed with defence against MKDP claim

Thanks for your help FlamingParrot... answers to your questions are as follows:

1. Copy agreement sent in response to my CPR 31.14 request is in the first post of this merged thread. This was supplied as two separate documents... the application form then the credit agreement (which is merely a set of T&C with my name & address shoved on the front page). Their covering letter treats the application form and credit agreement as separate entities, there is no attempt to present the credit agreement as the combination of these documents.

2. The original claim dates from several months ago. The defence date was set as 18 December by the judge at my N244 hearing a couple of weeks ago which I instigated to enforce my CPR 31.14 request. The copy assignment which I had requested was still outstanding at the time although that has now been supplied in response to the court order.

3. My name and address on the application form are reasonably clear... but much of the rest of the form isn't.

4. Card dates from 1997, they are claiming 7k + costs.

5. POC are... "The Claimant claims the sum of 7,xxx.xx being monies due from the Defendant to the Claimant under a regulated agreement originally between the Defendant and Barclaycard. The Defendant's account number was xxxxxxxxxxxx and was assigned to the Claimant on DD/MM/2011, notice of this has been provided to the Defendant. The Defendant has failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to the Consumer Credit Act 1974. The Claimant claims the sum of 7,xxx.xx and costs. The Claimant has complied, as far as is necessary, with the pre-action conduct practice direction."

6. In terms of case references I think there are cases that relate to illegible/unreadable agreements. I was planning to research these in more detail over the last couple of weeks but have not had much time. Therefore, ideally, I was going to include reference to the illegible application form in my defence but then research the case references before the court hearing. If I need to include these references in my original defence then I will have to see what I can turn up over the next couple of days.

Any further comments would be much appreciated.

[Watt Tyler]

Re: Help needed with defence against MKDP claim

Update on the above.

Following my N244 hearing in November to compel MKDP to supply the missing copy assignment notice that was still outstanding from my CPR31.14 request they were given until 27 November to supply the missing documentation or have the claim struck out.

I assumed that they had to send this to me and, up until 26 November I had not received anything. I was then away for a few days and returned to find a letter enclosing the copy assignment. I had no way of knowing whether this was received before or after the Nov 27 deadline but assumed that it might have arrived in time. One thing that did surprise me was that it was only sent second class, not recorded delivery or even first class... which seemed a bit risky from their point of view.

However, when I phoned the court today to find out how/where to submit my defence I was told that no documentation had been received by the court and the claim had therefore been struck out.

Did I misunderstand the situation... should the copy assignment have been sent to the court instead of (or as well as me)?

I know I'm not out of the woods yet since MKDP can apply to have the claim reinstated. However, the court official told me that this would require a court hearing which I would be notified of and have the opportunity to attend. Does this sound right?

If anybody understands the procedure in this area I would be most grateful for some clarification as to where I now stand.