Reston/Arrow/MBNA V 1vinnie.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

I have managed to leave the hospital for couple of hours as partners dad is still in the o/room and she's staying there.
Just as well really as i have letter from Restons and it is 3 or 4 lines which says:
"thank you for your recent correspondence in the matter".
"our client has informed us that i have made a request for infomation to them directly and as such this account has benn placed on hold whilst this is complied with"

I am not sure if they are playing games or not.
As ROb suggested to me to send CCA to Arrow by signed for and that deadline past and i have checked Royal Mail todayand the letter has not been signed for or delivered. I sent another CCA last week with proof of posting so maybe that was what Restons are on about.
I take i still have to file a defence before this weekend? I will try and put something together before going back to hospital.

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

That letter does not prevent you from submitting your defence, when it is submitted the have 28 days to let the court know if they want to proceed. If they don't then the claim is stayed until someone lifts the stay. This effectively gives them all the time in the world to wait for the documents and then lift the stay and you will still be liable - the case is effectively in limbo and unless you make an application to strike out or put in a counterclaim, this could potentially backfire at a later stage if they eventually get the documents they need.

So you need to get on with your defence you have until Monday to file it with the Court and you could do this by submitting it on the MCOL website. As I have previously said if you think they don't have a case then you could make a counterclaim to strike out and malicious prosecution as they don't have the grounds to bring the claim. If you don't counterclaim then the cost of a strike out at a later stage is normally £255 unless you qualify on a reduction.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

Thank you ROb.

I said earlier in my thread that i think its over 6 years since payment/aknowledge of the debt and Restons said i paid £5 on about 25th August 2010 but i dont have proof.
I also have no mention of this debt on any credit ref agency since last year when i got a Noodle account and in June/July i got a stat report from Experian and equifax and there is no mention of it those reports.
Should i go for stat barred defence or is that too risky?
As for the counterclaim can i do that at the same time as my defence statement or will that be 2 seperate letters?
Once again thank you ROb and all for your great help.

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

If that's your defence you can plead statute barred and then they will need to prove otherwise. You could also put Restons to proof as to how it was paid and what bank account details to verify that's the case. Again they have stipulated something but have not provided you full details other than a date of £5. If you haven't made a payment in over 6 years, it would be extremely unusual that you would have made a one of payment in 2010 - your counterclaim could also plead fraudulent misrepresentation

You should be able to do the counterclaim at the same time on MCOL, there should be an option I think although I am not sure where as I've never been a defendant on MCOL so don't know but it should be there somewhere. It should all be in one box but there may be a separate box if there's an option which akss you if you want to counterclaim. Don't feel like you have to put in a counterclaim but as said if they don't respond to the courts the claim will be stayed and it will cost you more money possibly at a later stage and whether you are prepared to take that risk or not. The counterclaim will prevent the claim from being stayed.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

I did some more looking at old paperwork left at my dads house last night and this morning i had another look.
I came accross an A&L credit card statement which then must have switched over to MBNA and there was missed payment from April/May 2008.
I had an old IF bank statement from 12/2009 and that had a £477 OWING balance on it and i think when i settles that it was about £500 fully paid so i dont think i paid MBNA from that bank.
I also had some letters from Wesscot and somebody else who had that MBNA debt and ithink it was dated last year and they were offering me a 50% or more discount so i dont know how Arrow came to get the debt.
I thought i would tell you and i will now try to get my defence statement done.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

[QUOTEI did some more looking at old paperwork left at my dads house last night and this morning i had another look.
I came accross an A&L credit card statement which then must have switched over to MBNA and there was missed payment from April/May 2008.
I had an old IF bank statement from 12/2009 and that had a £477 OWING balance on it and i think when i settles that it was about £500 fully paid so i dont think i paid MBNA from that bank.
I also had some letters from Wesscot and somebody else who had that MBNA debt and ithink it was dated last year and they were offering me a 50% or more discount so i dont know how Arrow came to get the debt.
I thought i would tell you and i will now try to get my defence statement done. ][/QUOTE]

I am working on my defence statement now.
I will put it up early tomorrow so people can give me some advice to whether its any good or not.
For putting in counterclaim i will sort the defence part 1st and then we can work on that after,

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

I did some more looking at old paperwork left at my dads house last night and this morning i had another look.
I came accross an A&L credit card statement which then must have switched over to MBNA and there was missed payment from April/May 2008.
I had an old IF bank statement from 12/2009 and that had a £477 OWING balance on it and i think when i settles that it was about £500 fully paid so i dont think i paid MBNA from that bank.
I also had some letters from Wesscot and somebody else who had that MBNA debt and ithink it was dated last year and they were offering me a 50% or more discount so i dont know how Arrow came to get the debt.
I thought i would tell you and i will now try to get my defence statement done.

I have put together a defence statement with the stat barred bit as the above has some more info. Can somebody let me know what need changing/tweeking please.

1: I received the claim XXXX from the Northampton County Court on 12/08/2016
2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
3: This claim appears to be for a Credit Card agreement regulated under the Consumer Credit Act 1974.
4: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.
5. The Claimants statement of case states that the account was assigned from MBNA to Arrow Global Guernsey Ltm. The Defendant does not recall receiving notice of this assignment.
6. It is denied that MBNA served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
7: On the 16/08/2016 I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Restons Solicitors Ltd. I requested the Claimant provide copies of the Agreement.
8. Restons Solicitors Ltd has not sent any of these documents to me.
9. On the 16/08/2016 I sent a formal request for a copy of the original agreement to Arrow Global Guernsey Limited pursuant to section 77 of the Consumer Credit Act 1974 along with the statutory £1 fee.
10. The Claimant has failed to comply with s77 (1) Consumer Credit Act 1974 and by virtue of s77 (4) Consumer Credit Act 1974 cannot enforce the agreement.

11. Historically I have held a number of different products with the original creditor, MBNA. It is my contention that any debt would now be statute barred pursuant to section 5 of the Limitations Act 1980 as I have had no contact with nor made payments to MBNA or any third party for debts previously owned by MBNA in over six years

12: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), The Parties agreed to an extension to the time period allowed for filing of my defence under CPR 15.5 to allow the Claimants additional time to produce the relevant documentation to evidence their claim, however they have failed to do so.
13. Under Civil Procedure Rule 16.5 (4) where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.
14. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.
15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.
16. It is denied that the Claimant is entitled to the relief as claimed or at all.
Statement of Truth
The Defendant believes that the facts stated in this Defence are true.

Signed …… ……………………………………
Dated........08/09/2016..........................................

[Amethyst]

Re: Reston/Arrow/MBNA V 1vinnie.

Arrow Global Guernsey Ltm. - should be Ltd.

I requested the Claimant provide copies of the Agreement.
8. Restons Solicitors Ltd has not sent any of these documents to me.

was it just the agreement? If so un-pluralise para 8.


Otherwise that all sounds good to me

I think I'll need the reasoning behind any counterclaim explaining to me as I'm not sure I understand why, or what you'd be claiming, at the moment. Also Limitations does work both ways so bear that in mind.

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

Is there a word limit on the defence you can input on MCOL? Just looking at the POC you posted, I think your defence suits but could be beefed up a little more but thats just my personal opinion. For example, they don't state what type of agreement it is or any termination date or any notice of assignment was served and on what date.

I know you've said that you believe it to be a credit card agreement but why not play them at their own game and plead that their POC is insufficient to identify what this claim is for and so their POC are so vague they do not comply with the CPR putting you in a prejudicial position and there is no case to answer.

There's a few other things I would add to it as well but these are just things i've picked up from reading other similar threads. Also, I would suggest to change "I" to "the Defendant", no real issue with it but Defences are usually third person and Witness Statements in first.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

Thank you Amethyst. This what ROb mentioned early in my thread.

2. The alternative is to do the above but attach a counterclaim on the back of the defence. You could argue an abuse of process / malicious prosecution (this one hasn't been argued before and is a very new argument but I think its worth a try) on the basis that they have not got the documents since the proceedings were issued, failed to comply with the CCA request and had no right bring a claim in the first place and so no reasonable grounds for bringing the claim.

The Counterclaim will cost you £25 for your counterclaim up to £300, I would think a modest counterclaim of £250 would suffice. Because you've made a counterclaim against Arrow, they would have to respond and put in a defence, otherwise you would be able to obtain judgment and potentially have the claim struck out. It will also prevent the claim from potentially being stayed.

The POC only mention overdue balance from the Defendants uner a contract between the Defendants and MBNA and assigned to the claiment on April 24 2008.

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

Exactly, so it doesn't state the nature/type of the agreement, or how you breached the contract, or the date on when the contract was entered into, or when it was terminated and the date of that termination etc. Lots of missing things in there. one line in the POC to me is insufficient to identify whether or not you owe this amount and give you enough information to respond. The case should be struck out on that basis not to mention if you want to counterclaim then you can also argue abuse of process and malicious prosecution since the POC does not clearly identify what right they have to bring a claim in the first place.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

Thank you both for the replies.
I have got a snip of POC's so people can have a better look.
ROb have you any ideas for what i could put down in relation to the POC having insufficient info for me to work out what the claim is for.

[1vinnie]

Re: Reston/Arrow/MBNA V 1vinnie.

Here is an update.

1: The Defendant received the claim XXXX from the Northampton County Court on 12/08/2016
2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
3: This claim appears to be for a Credit agreement regulated under the Consumer Credit Act 1974.
4: The particulars of claim are insufficient to identify what this claim is for.

5: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.
6: The Claimants statement of case states that the account was assigned from MBNA to Arrow Global Guernsey Ltd. The Defendant does not recall receiving notice of this assignment.
7: It is denied that MBNA served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
8: On the 16/08/2016 I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Restons Solicitors Ltd. I requested the Claimant provide copies of the Agreement.
9: Restons Solicitors Ltd has not sent any of these documents to me.
10: On the 16/08/2016 I sent a formal request for a copy of the original agreement to Arrow Global Guernsey Limited pursuant to section 77 of the Consumer Credit Act 1974 along with the statutory £1 fee.
11: The Claimant has failed to comply with s77 (1) Consumer Credit Act 1974 and by virtue of s77 (4) Consumer Credit Act 1974 cannot enforce the agreement.

12: Historically I have held a number of different products with the original creditor, MBNA. It is my contention that any debt would now be statute barred pursuant to section 5 of the Limitations Act 1980 as I have had no contact with nor made payments to MBNA or any third party for debts previously owned by MBNA in over six years

13: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), The Parties agreed to an extension to the time period allowed for filing of my defence under CPR 15.5 to allow the Claimants additional time to produce the relevant documentation to evidence their claim, however they have failed to do so.
14: Under Civil Procedure Rule 16.5 (4) where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.
15: I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.
16: In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.
17: It is denied that the Claimant is entitled to the relief as claimed or at all.
Statement of Truth
The Defendant believes that the facts stated in this Defence are true.

Signed …… ……………………………………
Dated........08/09/2016..........................................

I dont know the word/line limit on MCOL as i went on it earlier and i did not want to try it out and then mess up my defence letter.
Also do i leave in Northampton County Court or put CCBC ?
If i do a counterclaim can i do it on the same letter as the defence as i have seen on LB's a poster that did it.
I dont know if you have to do it in 2 seperate parts.
I was looking at a thread on here and their claim has Saturdays date for sending a defence in but they were told to send it in today by 4pm. Will mine have to go in today as 09/08/2016 was the claim date on form.

[R0b]

Re: Reston/Arrow/MBNA V 1vinnie.

I've made some changes to the below, hope you don't mind and note that it is just my take on your defence and situation. I would normally add in a few more things but if you are intending on making a counterclaim, then the strike out arguments would go in the counterclaim and not the Defence, and we can draft that up also once the Defence is agreed.

I would also review paragraph 5 to make sure it is accurate or amend as required about additional requests for the documents.

----------------------------------------------------------

1. The Defendant received the claim XXXX from the Northampton County Court on 12 august 2016.

2. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3. The Defendant contends that the Claimant's statement of case does not comply with CPR 16.4 in that there is not a concise statement of facts to enable to Defendant to properly plead a defence. In particular, the Claimant has failed to state:

(a) the exact nature of the agreement;
(b) whether the agreement is a regulated or unregulated agreement;
(c) for limitation purposes, the exact date on which the agreement was entered into;
(d) the date in which the agreement was terminated and who it was terminated by; and
(e) whether the notice of assignment was served on the Defendant and the address it was served to.

4. Notwithstanding paragraph 3 above, the Defendant does not recall ever receiving a notice of assignment, termination letter from either MBNA or the Claimant. Further, if it is the Claimant's case that the agreement is regulated, the Defendant did not receive any Default Notice pursuant to section 87 of the Consumer Credit Act 1974 (the "CCA"). The Defendant therefore requires the Claimant to prove that such documents were served on the Defendant in compliance with all applicable laws and regulations.

5. On 16 August 2016, the Defendant requested copies of the documents referred to in the Claimant's statement of case. The Claimant's solicitors, Restons Solicitors Ltd has so far ignored this request despite repeated attempts to obtain this information, contravening the overriding objective under rule 1.1 of the CPR. Further, the Defendant will also rely on the opinion of Rix LJ in Expandable v Rubin [2008] EWCA Civ 59 (at para. 24):

"The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection."

7. In order to enable the Defendant to prepare a full defence to the claim, the Defendant requested the Claimant to consent to an extension of time under CPR 15.5, and to enable the Claimant to provide copies of the documents in its statements of case. Although an extension of time was agreed, the Claimant again failed to produce the relevant documents which supports their claim. Given the Claimant's lack of adherence to the CPR and its overall conduct in this matter, the Defendant is prejudiced as regards to defending this claim.

6. Despite the inadequacy of the Claimant's statements of case, the it is the Defendant's belief that the agreement may be a regulated agreement. In anticipation of this, the Defendant requested the Claimant to supply a copy of the original agreement in accordance with section 77 of the CCA including the statutory £1 fee. The Claimant is obliged to provide a copy of the said agreement within 12 working days from when the request was received. Despite the request being sent on XX XX XX, the Claimant has failed to acknowledge receipt or provide a copy of the agreement as legally required to do so. Consequently, the Claimant cannot enforce the agreement by virtue of section 77(4) of the CCA.

7. Further or alternatively, it is the Defendant's position that the claim is statute barred pursuant to section 5 of the Limitation Act 1980 and requires the Claimant to prove otherwise. Historically, the Defendant has held a number of products with MBNA however no payments have been made to MBNA in over six years. In addition, under Civil Procedure Rule 16.5 (4) where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

8. In the circumstances, the defendant is in breach of a number of provisions set out in the CPR by failing adequately plead its claim, not co-operating with the Defendant as regards to disclosure of documents it intends to rely upon and is also in breach of its statutory obligations, the result of which is that the agreement cannot be enforced.

9. Accordingly, it is denied that the Claimant is entitled to the relief as claimed or at all, and the Defendant respectfully asks that the claim be dismissed.


- - - Updated - - -

To answer your questions, the counterclaim normally goes on the end of the Defence and you can post/email it. But if you are putting it on MCOL then I am not sure about the counterclaim it could be a separate page which is why you need to double check. According to the CPR and MCOL guides it says there is an option to make a counterclaim online whether you tick a box or select something you need to look out for it. If you submit your defence without a counterclaim then you will have to pay £255 instead of £25 to file one.

[Amethyst]

Re: Reston/Arrow/MBNA V 1vinnie.

Reading through recent posts so will add to this - I believe MCOL is limited to 122 lines - so likely you'd have to go by email ( or on paper )

Goodness those POC's are atrocious ! Extremely vague and could be for virtually anything !

R0bs amendments / expansion to the defence is good

[MENTION=71570]R0b[/MENTION] - I still don't know what the counterclaim is for - if you're thinking to strike the claim out on the grounds of the quite terrible POC - then that would be an application rather than a counterclaim, and I'd be a little concerned it is so late in the day... plus we have tried and failed to have vague POCs like this struck before - we've succeeded too but a couple of big losses with costs put us off encoruaging people on that route - so I think I'd stick with defending with the 'embarassed' type defence. Judges sometimes issue their own directions off the back of the defence, but most often the claimant just discontinues soon after allocation.

That's a 'discuss' paragraph not a 'telling you' paragraph btw lol.