Link/MBNA - delay due to house move

[bijim]

Re: Link/MBNA - delay due to house move

This is the record online
Claim HistoryA claim was issued against you on 08/12/2016


Your acknowledgment of service was submitted on 24/12/2016 at 10:03:39


Your acknowledgment of service was received on 29/12/2016 at 01:14:54

[bijim]

Re: Link/MBNA - delay due to house move

Just called the court - no judgement entered, the status is exactly as per the notes above - AOS received.

I have emailed to ask for confirmation in writing.

[Diana M]

Re: Link/MBNA - delay due to house move

Just called the court - no judgement entered, the status is exactly as per the notes above - AOS received

Good.

In which case nothing is gained by replying to Link's letter which basically says they've downed tools and won't be searching for your credit agreement.

The last thing you want is for them to make an effort to find it.

At the moment they have not complied with your valid CCA Request so can't enforce the debt in court until or unless they do.

If they've misunderstood the situation then that's their problem. File your Defence on time.

Di

[bijim]

Re: Link/MBNA - delay due to house move

Thank you. I am waiting for Kearns' reply but if nothing in tomorrow's post then I will file my defence before the end of the day. I am worried about leaving it to the 10th.

[Diana M]

Re: Link/MBNA - delay due to house move

if nothing in tomorrow's post then I will file my defence before the end of the day. I am worried about leaving it to the 10th.

Tomorrow is the 10th. File it no later than 4 pm tomorrow.

This is a £8.7k claim so leave nothing to chance.

Di

[bijim]

Re: Link/MBNA - delay due to house move

Tomorrow is the 10th. File it no later than 4 pm tomorrow.

This is a £8.7k claim so leave nothing to chance.

Di

Thank you so much I had the dates mixed up and was thinking I had until Wednesday. Would it be better to draft my defence today even though Kearns could still reply in the post tomorrow?

[Diana M]

Re: Link/MBNA - delay due to house move

Would it be better to draft my defence today even though Kearns could still reply in the post tomorrow?

Yes, draft it today and post up on your thread so someone on the forum can check it over for you. I can't do that when the Defence doesn't originate from my firm.

I doubt you'll receive a meaningful reply from Kearns tomorrow.

Make sure there is something in your Defence leaving the door open for you to file an Amended Defence if necessary at a later date. In my experience Kearns tend to come up with documents eventually - whether they'll be compliant or not is a different matter

Di

[bijim]

Re: Link/MBNA - delay due to house move

Looking at the expanse defence templates this seems to be the most appropriate (I hope!). I'm to 100% on the default reference as Kearns tried to tie me up in knots over default recorded vs default notice last time - I'm not sure that they are one and the same? The claim refers to a recorded default but my defence refers to a notice. Any feedback appreciated please.
Preliminary Matters


1. The Claimants claim form fails to adequately set out the nature of the Claim.


2. The Defendant avers that the Claimants pleadings are an abuse of process. The Claimants pleadings are lacking detail, there are no details as to when the alleged default occurred, the degree of default, despite requests for information from the Defendant, the Claimant has not provided any details as to how the sums claimed have accrued. Accordingly the Defendants contend that the pleadings are wholly inadequate for a contested matter and that the Claimant should be required to plead its case coherently and accurately as required by the CPR 16 and PD 16. The Defendants reserve the right to replead their defence should the Claimant replead its claim adequately


3. The Defendant accepts the claim was issued in the Northampton County Court Bulk Centre and that there are restrictions on pleading. However the bulk centre rules clearly state that if you cannot plead in the allowed number of characters then you should not use the Bulk Centre or in the alternative the Claimant was at liberty to issue and set out that particulars were to follow.




The Claim


4. The Claimant states the claim relates to a credit agreement with MBNA but without further details the Defendant is unable to identify such an account within her own records.


5. The particulars of claim fail to state what the agreement was for. The Defendant believes it would have been finance as MBNA issue credit cards and is unaware of any goods or non financial services supplied by MBNA to its customers.


6. The particulars of claim state that the account was assigned/purchased by Link Financial on 19/06/2008 and Notice of Assignment served upon the Defendant. The Defendant does not recall receiving notice of this assignment.


7. Upon the Claimant clarifying matters set out above the Defendant reserves his position to amend this Defence further. The Defendant shall seek the costs of the amendments from the Claimant due to the Claimants failure to plead its case adequately.


8. In respect of matters, which the Defendant is able to plead to, on the 24th December 2016 the Defendant sent “recorded delivery” requests for information to the Claimant. The request was made pursuant to s78 (1) Consumer Credit Act 1974 to ascertain the agreement, which the Claimant was demanding payment under and to obtain further information about the terms of the contract.


9. The Claimant has failed to disclose any documents relating to their claim to the Defendant.


10. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.


11. The Defendant has not yet been able to examine the terms and conditions which were in force at the time that the agreement was executed and therefore reserves the right to amend these pleadings to address any breaches that are identified if such terms and conditions are disclosed by the Claimant. The amendment will be due to the lack of disclosure by the Claimant and the failure to respond to the s78 CCA 1974 request correctly and the Defendant therefore also reserves the right to claim the costs of such amendment from the Claimant.


12. The Defendant has also sent a request for inspection of documents on the 24th December to Kearns Solicitors mentioned in their statement of case as allowed under CPR 31.14. The Claimant has not replied to this letter.




13. For the avoidance of doubt the Defendant requires the Claimant to plead effectively and disclose the legible documents upon which the Claim is based. In the event the Claimant fails to replead, then the Defendant reserves the right to apply for whatever orders it deems fit including an order striking the Claim out.


Default Notice


14. It is denied that the original creditor 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.


15. Due to the Claimants failure to allow the Defendant to inspect the Default notice alluded to within the Claim form the Defendant is prejudiced.


16. Accordingly the Defendant reserves his position to amend this Defence with the costs of the same paid by the Claimant if the Claimant provides a copy of the Default Notice.




Conclusion


Accordingly, the Defendant avers that


17. The Claimant has failed to plead properly in this matter and has failed to provide any information relating to this debt.


18. The Claimant has not complied with s78 or 86, and 87 Consumer Credit Act 1974 and therefore cannot enforce the agreement.


19. Therefore, the Claimants Claim should be dismissed and the Claimant should pay the Defendants costs.




Statement of Truth
The Defendant believes that the facts stated in this Defence are true


Signed
Dated

[nemesis45]

Re: Link/MBNA - delay due to house move

I'll leave [MENTION=87380]Diana M[/MENTION] to check this for given the advice previously given.

nem

[Diana M]

Re: Link/MBNA - delay due to house move

I'll leave @Diana M to check this for given the advice previously given

As much as I'd like to help more, I have already explained that I cannot approve, disapprove or unapprove Defences which do not originate from my firm, especially when we've not seen the paperwork involved.

Maybe the OP should PM Amethyst if you can't help them?

Di

[charitynjw]

Re: Link/MBNA - delay due to house move

Before you file the defence, you mentioned (in previous posts above) that you didn't know whether this is Statute-barred or not.
It therefore may be wise to at least mention the possibility.
Again, cite the Claimant's lack of document disclosure as the reason why you are unsure, & add a 'right to amend' & claim costs', similar to para #11 of your defence.
s5 Limitation Act 1980 is the relevant legislation to quote re SB.

[bijim]

Re: Link/MBNA - delay due to house move

Thank you - that's a good point. I'll add to the draft and re-post here.

[bijim]

Re: Link/MBNA - delay due to house move

Stature barred defence added - is this ok?


Preliminary Matters


1. The Claimants claim form fails to adequately set out the nature of the Claim.


2. The Defendant avers that the Claimants pleadings are an abuse of process. The Claimants pleadings are lacking detail, there are no details as to when the alleged default occurred, the degree of default, despite requests for information from the Defendant, the Claimant has not provided any details as to how the sums claimed have accrued. Accordingly the Defendants contend that the pleadings are wholly inadequate for a contested matter and that the Claimant should be required to plead its case coherently and accurately as required by the CPR 16 and PD 16. The Defendants reserve the right to replead their defence should the Claimant replead its claim adequately


3. The Defendant accepts the claim was issued in the Northampton County Court Bulk Centre and that there are restrictions on pleading. However the bulk centre rules clearly state that if you cannot plead in the allowed number of characters then you should not use the Bulk Centre or in the alternative the Claimant was at liberty to issue and set out that particulars were to follow.




The Claim


4. The Claimant states the claim relates to a credit agreement with MBNA but without further details the Defendant is unable to identify such an account within her own records.


5. The particulars of claim fail to state what the agreement was for. The Defendant believes it would have been finance as MBNA issue credit cards and is unaware of any goods or non financial services supplied by MBNA to its customers.


6. The particulars of claim state that the account was assigned/purchased by Link Financial on 19/06/2008 and Notice of Assignment served upon the Defendant. The Defendant does not recall receiving notice of this assignment.


7. Upon the Claimant clarifying matters set out above the Defendant reserves her position to amend this Defence further. The Defendant shall seek the costs of the amendments from the Claimant due to the Claimants failure to plead its case adequately.


8. In respect of matters, which the Defendant is able to plead to, on the 24th December 2016 the Defendant sent “recorded delivery” requests for information to the Claimant. The request was made pursuant to s78 (1) Consumer Credit Act 1974 to ascertain the agreement, which the Claimant was demanding payment under and to obtain further information about the terms of the contract.


9. The Claimant has failed to disclose any documents relating to their claim to the Defendant.


10. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.


11. The Defendant has not yet been able to examine the terms and conditions which were in force at the time that the agreement was executed and therefore reserves the right to amend these pleadings to address any breaches that are identified if such terms and conditions are disclosed by the Claimant. The amendment will be due to the lack of disclosure by the Claimant and the failure to respond to the s78 CCA 1974 request correctly and the Defendant therefore also reserves the right to claim the costs of such amendment from the Claimant.


12. The Defendant has also sent a request for inspection of documents on the 24th December to Kearns Solicitors mentioned in their statement of case as allowed under CPR 31.14. The Claimant has not replied to this letter.




13. For the avoidance of doubt the Defendant requires the Claimant to plead effectively and disclose the legible documents upon which the Claim is based. In the event the Claimant fails to replead, then the Defendant reserves the right to apply for whatever orders it deems fit including an order striking the Claim out.


Default Notice


14. It is denied that the original creditor 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.


15. Due to the Claimants failure to allow the Defendant to inspect the Default notice alluded to within the Claim form the Defendant is prejudiced.


16. Accordingly the Defendant reserves his position to amend this Defence with the costs of the same paid by the Claimant if the Claimant provides a copy of the Default Notice.




17. The defendant contends that any alleged debt would be statute barred pursuant to section 5 Limitations Act 1980 in that no payment or acknowledgement of the debt or agreement has been made for in excess of six years before the date this claim was issued. Should the Claimant deny this to be the case they must provide evidence to show why they do not agree.


18. In the event that the relevant documents are received from the Claimant the Defendant will then be in a position to amend her defence, and would ask that the Claimants bear the costs of the amendment.




Conclusion


Accordingly, the Defendant avers that


19. The Claimant has failed to plead properly in this matter and has failed to provide any information relating to this debt.


20. The Claimant has not complied with s78 or 86, and 87 Consumer Credit Act 1974 and therefore cannot enforce the agreement.


21. Therefore, the Claimants Claim should be dismissed and the Claimant should pay the Defendants costs.




Statement of Truth
The Defendant believes that the facts stated in this Defence are true


Signed
Dated

[nemesis45]

Re: Link/MBNA - delay due to house move

Well Done! bijim.

nem

[Diana M]

Re: Link/MBNA - delay due to house move

even though Kearns could still reply in the post tomorrow?

Did they?

Di