Stix v Cabot/MBNA - Please help :-)

[stix]

Hi Guys 'n Gals.

Back ground info -
I had a credit card agreement with MBNA (Jan 1999).
Received Notice of Assignment from Cabot Financial (uk) Ltd in October 2001
I set up an arrangement with them and as far as I know I never defaulted.
I was still making payments when in June 2008 I requested a copy of the CCA (s78)
At first Cabot said they were waiting to get it from the OC and would hold an action on the account. until further notice - at this time the balance was £2200.
Half way through August 2008, they sent the CCA with a letter saying they had fullfilled their obligations and were entitled to resume collecting. The balance had also suddenly doubled and risen to over £4400!!
I sent a letter back saying they hadn't yet complied,,, the cca was an application form and the T&C's weren't legible ( The CCA isn't either t.b.h) - Account still in dispute.
To cut a long story short,,, they sent the agreement again, with a ltter saying it was ok and I was being mis-guided etc.
I sent another letter basically saying b*ll*x, account still in dispute.
They sent another dozen or so letters after that asking me to get in touch,,,even a 'limited offer' of a reduction - all of which I ignored. Then a letter from Morgans lands through the letter box.

First Pic is the CCA
Next four are the T&C;s
Last two are obvious :-)









I acknowledged service on line and sent a cpr 31.14 off to Morgans for the agreement, default notice, legal assignment and proof of amount claimed. They signed for it on 13/08/2010 - I've not had a response.
I also sent a part 18 request for a full and complete statement of aco***** which Morgans signed for on 23/08/2010. I did send one 5 days earlier but forget to put a time limit on it so I resent it, this time with the 14 day time limit.

Unless I'm mistaken I had until September 1st to submit my defence but I submitted it earlier today on line (well, yesterday now - saturday).
I sublitted an embarrassed defence:

1. I, xxxxxxx, am the defendant in this action and make the following statement as a defence to the claim made by Cabot Financial (UK) Ltd

2. The claimant’s particulars of claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR, even allowing for the constraints of the bulk issue system.


3. The Defendant notes that the Claimants' claim is not fully particularised, offers no cause for action and documents constituting the agreement should be attached to or served with the particulars of claim. The defendants claim is thus eligible for a strike out under CPR 3.4.2 (a) (c)

4. No documents supporting the claims in the particulars have been offered and despite two requests to the claimant for further information via CPR 31.14 dated xx/xx/2010 and CPR part 18 dated xx/xx/2010, both sent by recorded delivery and signed for, none has been forthcoming and as a result I cannot plead in defence to the claim.

5. The Defendant denies that they are indebted to the Claimant for the sum of £xxxx.xx and puts the Claimant to strict proof of this sum.

6. Without clarification of the claimant’s claim, the defendant is extremely disadvantaged and as the claimant’s claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.

7. Further to the above 6 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

And the defendant:

8. Seeks an order that the Claimant’s action is struck out under CPR 3.4.2 (a) (c), or otherwise dismissed, on the grounds that any claim cannot succeed.


Statement of truth
etc
etc

This is all new territory for me and I must admit its been a struggle trying to get my head around a lot of it. but I think i'm winning and its slowly starting to sink in :-)

I'm guessing the next step will be an allocation questionaire landing on the front mat? N150?
I've had a look at one and I know i'm going to need a hand filling that in.

Anyway, thats the story so far.
Questions welcome, Help and advice more so

[LuggerBugs]

Re: Stix v Cabot/MBNA - Please help :-)

I think you seem to be doing quite well already. Apart from having been hoodwinked by the feckers into paying anything in th first place. But then, you didn't have the benefit of consumer forums back then. No wonder Cabot are feeeling the pinch lately, eh?

OK, what will you be saying in your defence? I think it likely they will be continuing, so best to have things straight in your mind right from the off.

[stix]

Re: Stix v Cabot/MBNA - Please help :-)

Hi Luggerbugs.

To sum up, my defence is this CCA is unenforceable because its an application form (It's got application form on the T&Cs so that's an argument that they were part of a pre-agreement application), the prescribed terms are not contained within the agreement itself. They're on a seperate document when they must be in the same section as the signature box.
If, what I was sent following the CCA request is the best they can do, I also have a legibility issue. I can bearly make out what they say using a magnifying glass!!
Thats about it so far as enforceabliltity goes. Im waiting on a reply for information under cpr31.14 & part 18 (I've also SAR'd mbna) so there could be more yet.
My next problem is the amount claimed but I've not looked into that one too much yet.

My defence i'm working on so far is this:-

I, stix, am a litigant in person and the defendant in this action. I make the following statement as a Defence to the claim made by Cabot Financial (UK) Limited.

2 Except where otherwise mentioned in this Defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

3 The credit agreement supplied is not compliant with the Consumer Credit Act 1974, Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) for the reasons set out below in this defence and as a consequence it is unenforceable.

4 Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.
5 Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

6 The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit. A term stating the rate of any interest on the credit to be provided under the agreement and a term stating how the debtor is to discharge his obligations under the agreement to make the repayments which may be expressed by reference to a combination of any of the following:

1. Number of repayments
2. Amount of repayments
3. Frequency and timing of repayments
4. Dates of repayments
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

7 It is submitted that the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement but in a separate document.

8 I refer to the judgment of Lord Justice TUCKEY in the case of Wilson & ANR v Hurstanger Ltd [2007] EWCA Civ 299:-

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

9If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1)(a) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order.

10It is submitted that the credit agreement supplied falls foul of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)/2 in so far that the documents disclosed are NOT easily legible.

11 The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)/2 sets out:-

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the background medium upon which the information is displayed.”

12The documents disclosed fail these regulations and do not comply with section 61(1)(c) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order.

13 The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with.

‘127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).’

14 Furthermore the courts attention is also drawn to the authority of the House of Lords in Wilson-v- First County Trust Ltd [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

15 With regards to the Authority cited in point 14, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

" 29 The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

16 It is denied that the claimant may claim interest under the County Courts Act 1984 S69 as the purported agreement is a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states this may not be claimed. The regs mentioned state:-

The general rule
2.—(1) Subject to the following provisions of this Order, every judgment debt under a relevant judgment shall, to the extent that it remains unsatisfied, carry interest under this Order from the date on which the relevant judgment was given.

(2) In the case of a judgment or order for the payment of a judgment debt, other than costs, the amount of which has to be determined at a later date, the judgment debt shall carry interest from that later date.

(3) Interest shall not be payable under this Order where the relevant judgment—
(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974[2] ;


Statement of Truth
etc etc

[LuggerBugs]

Re: Stix v Cabot/MBNA - Please help :-)

OK, I hear what you are saying. But...

Does the application form otherwise conform? In other words... if it didn't say "Application Form" on it, would you now simply be putting your hands up in surrender? I hope you know why I'm asking this.

On the other hand... I'd be trying to find out why your so-called "debt" has jumped massively. In other words, it might be prudent to start looking for an avenue of negotiation. Because at the moment, you're on dodgy ground.

[stix]

Re: Stix v Cabot/MBNA - Please help :-)

1) Forgetting the wording 'application form',,,, no it doesn't comply for the reasons stated above.

2) I'm still waiting for their explanation but I expect the sudden rise is due to me stopping payments whilst they searched for the CCA. I've got a letter from years ago stating interest would be frozen whilst I kept to the arrangement we had, so I guess they see it as me having broken the arrangement now and added all this 'accrued' interest as punishment This is whilst they were still in default of my CCA request and after the last letter I had from them said they would withhold any action on my account until further notice.
The first I knew about it was when the CCA and T&C's came,,, along with a letter stating balance of £4400, and print outs of the account balance and payments stating a balance of £2200

[LuggerBugs]

Re: Stix v Cabot/MBNA - Please help :-)

Hmmm. Good luck with arguing that the T&C's should be discounted because they are in a seperate document. I think it'll be something of a lottery, depending on the judge.

Personally, I'd be far happier if they were missing altogether, or looked as if they didn't belong to the original application form whatsoever.

[middenmess]

Re: Stix v Cabot/MBNA - Please help :-)

OK, I hear what you are saying. But...

Does the application form otherwise conform? In other words... if it didn't say "Application Form" on it, would you now simply be putting your hands up in surrender? I hope you know why I'm asking this.

Wouldn't it have a job to conform as it's just a single sided mail back application which had to be folded and returned?

On the other hand... I'd be trying to find out why your so-called "debt" has jumped massively. In other words, it might be prudent to start looking for an avenue of negotiation. Because at the moment, you're on dodgy ground.

Totally agree--something iffy going on with the sums requested,£2200 to £4400 and then court papers for £5000 +!!

[LuggerBugs]

Re: Stix v Cabot/MBNA - Please help :-)

Aye, well I suspect the figures have been massaged a little in order to get things into Fast Track. Amongst other things.

[stix]

Re: Stix v Cabot/MBNA - Please help :-)

"Personally, I'd be far happier if they were missing altogether, or looked as if they didn't belong to the original application form whatsoever."

Well, its funny you should say that. On the agreement theres a little bit which says 'I have received a copy of and agree to be bound by the credit card terms and conditions....", but whether I did or not is anybody's guess.
Forgetting that though, I was told on CAG ....quote...." the terms and conditions they have sent you are for agreements after 2004 (you can tell by the way they are written)"
I dont know if anyone here can confirm this,,,,and if so,,,how to prove it?

[jax007]

Re: Stix v Cabot/MBNA - Please help :-)

Because at the moment, you're on dodgy ground.

Why do you say this Luggerbugs??

jaxx

[LuggerBugs]

Re: Stix v Cabot/MBNA - Please help :-)

Why do you say this Luggerbugs??

jaxx

Because I have a feeling that a judge will simply say, "There's the agreement, there's the T&C's, you owe the money."

Now, if it CAN be shown that the T&C's are a later version, then fine. But I'm not sure that would be possible.

And even if it were, it's down to the judge's interpretation on the day. I'd STILL not be happy.

No, best bet is to challenge the amount being claimed. It seems unreasonably high, and if they insist on going to court on the basis of having whacked on charges and/or interest to which they are not entitled, they will not be impressing the court. Especially if you were to show that you were willing to negotiate it down to what you DO owe.

Additionally, Morgans are being a little naughty, trying to get it into the realms of scary costs. Which would suggest to me that they are not that sure of victory either.

[stix]

Re: Stix v Cabot/MBNA - Please help :-)

btw,,, should I have received a defaukt notice?

[middenmess]

Re: Stix v Cabot/MBNA - Please help :-)

btw,,, should I have received a defaukt notice?

Yep!

[stix]

Re: Stix v Cabot/MBNA - Please help :-)

Well, MBNA 'might' have sent me one back in 2001 before passing 'the account' onto Cabot, I guess I wont know until they reply to my S.A.R..

But, If Cabot bought the account and became creditor, well, I'm certain they've never sent me one. I've kept all paperwork since my CCA request back in 2008, and before that I had an arrangement with them going back to 2002 which I never defaulted on. I've nothing with the words.. "This ia a default notice issuied under....."....whatever it is.

[LuggerBugs]

Re: Stix v Cabot/MBNA - Please help :-)

You don't need to wait for a response to your SAR, with that 40 day timescale. You should be provided with all your info anyway in plenty of time to prepare a defence, in response to your request for disclosure. Otherwise, they are being naughty. Again.