MBNA taking me to County Court - Urgent help needed

[GoldenEagle]

Re: MBNA taking me to County Court - Urgent help needed

No, they have not.

There was nothing to say it needed to be acknowledged, although last time I requested that before preliminary hearing they wanted me fill an application and pay a fee even though the court Manager said all I needed to do was a letter which I promptly sent but a week later the judge instructed application and fee route.

[teaboy2]

Re: MBNA taking me to County Court - Urgent help needed

Right you should do a embarressed defence, i have one for you, but need to look it up and will need to change it a bit since you had not sent a CPR31.14 request for disclosure and to refelct on what documents they produced at the ealier hearing and their further failue to disclose documents to you as ordered by the judge.

[teaboy2]

Re: MBNA taking me to County Court - Urgent help needed

Defence

1. I, XXX am the Defendant in this action and make the following statement as my defence to the claim made by XXXX.

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

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

4. The Claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the Court’s attention to the following matters:
A copy of the purported written contracts that the Claimant cited in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim.

5. The claiment pruduced a reconstituted version of what they said was the agreement and what it would have looked like at the previous hearing on (enter date) upon inspection however, it is clearly nothing more than an application form and lacks any all the persirbed terms and all the terma and conditions required to be classed as a credit agreement. There for the reconstitured application form fails to comply with section 77/78 of the consumer credit act 1974 that allows for the reconstituted version of the credit agreement to be present upon request by the debot only. It does not allow for them to produce a reconstituted application form that does not form part of any credit agreement or for them to pass such application off in court as being a reconstituted agreement. Also section 61 of the consumer credit act 1974 is clear that in order for the claiment to be entitled to enforce the alleged debt (section 127 (3) consumer credit act 1974 - applies to all agreements made prior to april 2007) they must produce a true copy of the original signed agreement complete with percscibed terms and in persribed form. Otherwise the agreement is unenforceable and a court is not entitled to enforce. I hereby strict the claiment to proof the existance of a true copy of the original signed copy of the agreement that they alleged was signed by myself, by producing it in court.

6. The claiment also produced an alleged copy of the default notice at the earlier hearing on (enter date) as proof they have issued the Default Notice and that it had been served on the defendant. The defendant denies ever being served with said Default Notice and stricts the claiment to prove postage and that the default notice was served and receive by the defendant. Note: Failure to serve a valid default notice not invalidates such notice but also means the claiment is not entitled to enforce the debt in court - see section 87 (1) consumer credit act 1974. I refer the court to the court of appeal case Brandon v American Express Services Europe Ltd [2011] EWCA Civ 1187 (25 October 2011), which found an invalid DN is not a deminis issue and a creditor and that a creditor/lender cannot (easily) switch to a S98 claim if his S87 claim fails due to non the default notice being invalid.

7. On (enter date) the Defendant submitted requests under CPR31.14 rules via First Class Recorded Delivery for copies of the agreements, copies of all statements since inception of the accounts and copies of the default notice and termination notices, in order to assess if the sum claimed is accurate and any other documentation that the Claimant is relying upon in pursuit of this claim. The claimant did not respond and still has not diclosed said information even inlight of the order to do so in previous hearing, as stated in paragrapth 8 below.

8. In the previous hearing on (enter date) the court ordered both parties to disclose documents they intend to rely on. The claimant has so far failed to disclosure to the defendant the documents in which they are basing their claim on, as such the defendant is not able to disclose documents on which the defendant intends to use in defense of the claiments claim nor is the defendant able to submit an full defense to the claimants claims as a result. Therefore the defedant is left no alternative but to issue an embarressed defence. Claiment claimed during phone call they had sent them to the defendant twice. The defendant hereby stricts them to proof postage and service of both copies of the disclosure documents they alleged to have sent.

9. I respectfully ask the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents.

Statement of Truth

I, XXX believe the above statement to be true and factual.

Signed XXX


If you are unsure about any of the above, let me know - same for if i have misintereptated any of the facts.

Unfortunately due to lack of information and lack of time in which to go other all the facts, thats the best i can come up with. The strongest agrument is the need for a true copy of the original signed agreement. Hopefully that will buy us some valuable time in which to go other all the facts of your case from start to finish so we can come up with a strong robust defence. Though you never know, we may be very luck and they may admit they do not have a copy of the agreement in compliance with section 61, which would put and end to their claim altogether.

Editing in the necessary dates and claiments name etc too.
------------------------------- merged -------------------------------
By the way, you have not ever admited the debt in the previous hearings have you?

[basa48]

Re: MBNA taking me to County Court - Urgent help needed

Defence

5. .........................However section 61 of the consumer credit act 1974 is clear that in order for the claiment to be entitled to enforce the alleged debt they must produce a true copy of the original signed agreement, otherwise the agreement is unenforceable and a court is not entitled to enforce. ....................

This isn't strictly correct, S61 only says "a document ..........conforming to regulations under section 60(1) is signed in the prescribed manner...."

There is of course case law in Carey and Wilson that goes to require creditors to produce signed copies, but the Act doesn't.

[GoldenEagle]

Re: MBNA taking me to County Court - Urgent help needed

Thanks teaboy2 for your reply. I found this forum late in the day. Anyway, to give you the history - Varde entered claim in Feb 2011 at Northampton Bulk Centre which I submitted an embarrassed defence for. I sent CPR31.14 request to their solicitors requesting the necessary docs. They advised me that they have forwarded the request to their client. After which I received nothing. Then one day I receive notice from County Court ordering me to attend Preliminary Hearing. At this hearing their solicitor had in his possession - my applications form, default notice, terms & conditions, notice of assignment, termnination notice and statements. He did not let me the see any of the statements. He claimed that my application was the valid CCA and as I had been making payments I acknowledge the debt. I mentioned that these were bad copies and judge asked them to forward decent copies for terms and conditions. Solicitors claimed they posted the stuff to me twice when I phoned them to ask and still no statements.

All I have admitted is that I had an MBNA credit card. Default notice that I received which I frantically trying to find on my computer because I scanned it had a different account number.

Docs attached except T&C which they claim they have sent but I never received them.

[teaboy2]

Re: MBNA taking me to County Court - Urgent help needed

This isn't strictly correct, S61 only says "a document ..........conforming to regulations under section 60(1) is signed in the prescribed manner...."

There is of course case law in Carey and Wilson that goes to require creditors to produce signed copies, but the Act doesn't.

And section 60 is titled "perscribed form and contents of agreements", therefore section 61 where it refers to a document under section 60, is in fact, refering to the regulated agreement e.g. credit agreement. The very first sentence in section 61 (1) states - "A regulated agreement is not properly executed unless". As such, section 61 confirms it is referring to a regulated agreement not just a document.

[teaboy2]

Re: MBNA taking me to County Court - Urgent help needed

Thanks teaboy2 for your reply. I found this forum late in the day. Anyway, to give you the history - Varde entered claim in Feb 2011 at Northampton Bulk Centre which I submitted an embarrassed defence for. I sent CPR31.14 request to their solicitors requesting the necessary docs. They advised me that they have forwarded the request to their client. After which I received nothing. Then one day I receive notice from County Court ordering me to attend Preliminary Hearing. At this hearing their solicitor had in his possession - my applications form, default notice, terms & conditions, notice of assignment, termnination notice and statements. He did not let me the see any of the statements. He claimed that my application was the valid CCA and as I had been making payments I acknowledge the debt. I mentioned that these were bad copies and judge asked them to forward decent copies for terms and conditions. Solicitors claimed they posted the stuff to me twice when I phoned them to ask and still no statements.

All I have admitted is that I had an MBNA credit card. Default notice that I received which I frantically trying to find on my computer because I scanned it had a different account number.

Docs attached except T&C which they claim they have sent but I never received them.

DN notice is invalid due to following reasons.

1) date of DN is 7th september 2009, intrucstions are to pay before the date shown above, that date being 24th september, meaning last date to rememdy is the 23rd.

a) That means if sent first class, the law allows 2 working days after date of notice before it is deemed as served so service date would be 10th thats gives only 13 days to remedy out of the required satutory 14 days.

b) if sent second class (4 working days), as MBNA usually do, then it would not have been received till 12th, giving only 11 days to remedy out of the statutory 14 days.

As for the agreement it lacks the terms and conditions and is illegible and obiviously is a reconstituted version from a microfiche - It also does not contain any perscribed terms e.g credit limite, interest rates, repayment details etc. So it is not an agreement par se, but nothing more than a mere application form. Where did you fill the application for in - at a service station?

I have also edited paragrapth 4 of the defense in light of the agreement being nothing more that an application form.

The assignment notices look dodgy to me as their is no date on them. Any idea what date of the assignment was?

By the way - inlight of what you said above regarding the disclosure of documents and the solicitors claim that they sent them out twice i have edited the defence in my earlier post to strict them to proof of postage and service of them.

[GoldenEagle]

Re: MBNA taking me to County Court - Urgent help needed

Thanks teaboy2. Sorry I have just logged in; I was writing Formal Complaint letter to MBNA. Thanks for picking up hole on DN and the agreement. Hope the Judge agrees with us. There is no date on Assignment Notice and I just noticed there is no Notice of Termination. One more question - do I need to submit N265 or N9B (I have no idea about counter claim). I also want to send SAR but not sure who it should go to MBNA or Varde (Can they be relied upon).

[basa48]

Re: MBNA taking me to County Court - Urgent help needed

Not trying to deflate anyones balloon here, just trying to stop GE falling into any holes.

IMO the date issue with the DN would probably be deemed de minimis.

With regard to the S61/S60 issue and producing docs in court. I fully accept the Act requires a properly executed agreement. My issue is that there is no rules to say the original or copy of original MUST be shown in court, only that one WAS signed and the lender convinces a judge one WAS signed (probably by way of supposed 'robust procedures'). Some judges will accept this if not properly countered by a robust defence/denial and perhaps ref to Waksman and Wilson.

PS: Fully agree the 'agreement' as posted is not compliant. Be aware if it refers to T&Cs on reverse or pages attached. That could make it more compliant.

[QCKate]

Re: MBNA taking me to County Court - Urgent help needed

Not trying to deflate anyones balloon here, just trying to stop GE falling into any holes.

IMO the date issue with the DN would probably be deemed de minimis.

With regard to the S61/S60 issue and producing docs in court. I fully accept the Act requires a properly executed agreement. My issue is that there is no rules to say the original or copy of original MUST be shown in court, only that one WAS signed and the lender convinces a judge one WAS signed (probably by way of supposed 'robust procedures'). Some judges will accept this if not properly countered by a robust defence/denial and perhaps ref to Waksman and Wilson.

PS: Fully agree the 'agreement' as posted is not compliant. Be aware if it refers to T&Cs on reverse or pages attached. That could make it more compliant.

IMPORTANT - The defaiult notice error has recntly been found by the Court of Appeal NOT to be de minimis. See Brandon v American Express Services Europe in October 2011. Here is a quote from the ruling -

Thirdly, if, as a matter of construction, the Default Notice has not or may not have allowed the minimum statutory period for Mr. Brandon to remedy the breach, then it is (at least) realistically arguable that the defect cannot be overlooked as de minimis. To my mind, this conclusion applies both to the failure to allow a minimum 14 day period and to the absence of prejudice flowing from the defect in the Default Notice.

Also, see other MBNA cases on this site which will be helpful especially the case in the High Court between Keith Harrison and Link Financial in Feb 11 over an MBNA card. A quote from this one -

83. Cumulatively and damningly is what I find to be the way that MBNA and the Defendant went about recovering their debt.


QCK :tinysmile_grin_t:

[teaboy2]

Re: MBNA taking me to County Court - Urgent help needed

Not trying to deflate anyones balloon here, just trying to stop GE falling into any holes.

IMO the date issue with the DN would probably be deemed de minimis.

With regard to the S61/S60 issue and producing docs in court. I fully accept the Act requires a properly executed agreement. My issue is that there is no rules to say the original or copy of original MUST be shown in court, only that one WAS signed and the lender convinces a judge one WAS signed (probably by way of supposed 'robust procedures'). Some judges will accept this if not properly countered by a robust defence/denial and perhaps ref to Waksman and Wilson.

PS: Fully agree the 'agreement' as posted is not compliant. Be aware if it refers to T&Cs on reverse or pages attached. That could make it more compliant.

Yes i understand that Basa, but your forgetting something, this is an embarressed defense. The claiment has not yet disclosed any documents for the defendant, all we have a 2 notices of assigment, 1 invalid DN and 1 reconstituted application form, all of which are poor quality copies and a judge had order the claiment to disclose better quality copies at prior hearing. Your also forgetting the defense is stricting the claiment to proof the existence of the agreement.

But more importantly your forgetting that their whole claim is based upon the agreement they allege exists, they therefore have to produce it as evidence just like they do the default notices. Or are you seriously saying that they only have to produce verbal presuation to the judge as evidence it exists and they are entitled to enforce, when without a properly excuted agreement they are not entitled too.
------------------------------- merged -------------------------------

Thanks teaboy2. Sorry I have just logged in; I was writing Formal Complaint letter to MBNA. Thanks for picking up hole on DN and the agreement. Hope the Judge agrees with us. There is no date on Assignment Notice and I just noticed there is no Notice of Termination. One more question - do I need to submit N265 or N9B (I have no idea about counter claim). I also want to send SAR but not sure who it should go to MBNA or Varde (Can they be relied upon).

Submit N9 as thats the defence form

The N265 form is for listing documents your disclosing, which you have not been asked to diclose any so you do not need to do anything with that.
------------------------------- merged -------------------------------

IMPORTANT - The defaiult notice error has recntly been found by the Court of Appeal NOT to be de minimis. See Brandon v American Express Services Europe in October 2011. Here is a quote from the ruling -

Thirdly, if, as a matter of construction, the Default Notice has not or may not have allowed the minimum statutory period for Mr. Brandon to remedy the breach, then it is (at least) realistically arguable that the defect cannot be overlooked as de minimis. To my mind, this conclusion applies both to the failure to allow a minimum 14 day period and to the absence of prejudice flowing from the defect in the Default Notice.

Also, see other MBNA cases on this site which will be helpful especially the case in the High Court between Keith Harrison and Link Financial in Feb 11 over an MBNA card. A quote from this one -

83. Cumulatively and damningly is what I find to be the way that MBNA and the Defendant went about recovering their debt.

QCK :tinysmile_grin_t:

Thanks Kate, will add refernece to the defence in my earlier post.

[Guest]

Re: MBNA taking me to County Court - Urgent help needed

HI Just a few quick points
Firstly I presume you are aware of the dangers of presenting an embarrassed defence regarding possible costs if they produce an agreement.( see PTs excellent piece and warning on the subject.)
The practice directive does not say that agreements must be produced only that they “should “ be produced ,the court can rule for the plaintiff in the absence of documentation.
Basa is quite right in that section 60 I concerned with the form and content of the agreement document, together with regulations made under the same section(agreement regulations).
The document becomes a regulated agreement when it is properly executed under section 61.
I do not think it is an issue here that the loan was given just that the agreement was,a) either made or b) properly executed.
Default notice
The date on the notice (7th is consistent with delivery on the 9th not the tenth (7+2=9 not ten) this would give the OP the required 14 days this from Brandon.(Para 33)
“it does seem to me that if posted on the 19th I would be entitled to assume it would arrive on the 21st.”
Basa is also correct that any minor discrepancy would be considered by the court as de minimis anyway.
The recent hearing in Brendon was to decide only if summary judgement could be given on the point, it was decided it could not.
This means that the issue of whether the time given to remedy was de minimis was arguable, as was the issue if any prejudice was caused by that error.
Both the issues will be decided on a case by case basis on the discretion of the court and based on the particular circumstances of the case.
The first issue here for the court to decide is, was the document presented an application form(an invitation to treat), or was it an unexecuted agreement issued under section 62 of the act.
They will contend that it is the later, the difference between the two being the presence of the prescribed terms.
The second issue will be if the agreement was properly executed and if an enforcement order can be issued under section 65 and section 127 or if enforcement is barred under section 127(3)
Their argument will be that the terms were either on the reverse of the document or accompanied it, this the court will decide on the balance of probability.
And yes Basa is also correct in saying that it is imperative that you know what you are talking about when you go into court
This is your case in summary.
Peter

[teaboy2]

Re: MBNA taking me to County Court - Urgent help needed

HI Just a few quick points
Firstly I presume you are aware of the dangers of presenting an embarrassed defence regarding possible costs if they produce an agreement.( see PTs excellent piece and warning on the subject.)

Point is the defendant can not defend when the claiment has not disclosed the documents that are legible as basically ordered to by the judge in the previous hearing. As such we have not much option but to use the embarressed defence route and point out the claiment is still in breach of CPR rules. Especially given the fact GE came to us at such short notice, e.g. defence has to be in by tomorrow i believe.

The practice directive does not say that agreements must be produced only that they “should “ be produced ,the court can rule for the plaintiff in the absence of documentation.
Basa is quite right in that section 60 I concerned with the form and content of the agreement document, together with regulations made under the same section(agreement regulations).
The document becomes a regulated agreement when it is properly executed under section 61.

Point here is, they have to produce a true copy of the original executed agreement that was properly excuted under section 61 and it is therefore in perscribed form under section 60. So any arguments over section 61 here (and i do not mean between us Peter, but purely in general sense) would not be of any relevance. As the point is the creditor would have to show an agreement that was properly excuted in order to enforce the agreement. Without one then they have no claim against the defendant

I do not think it is an issue here that the loan was given just that the agreement was,a) either made or b) properly executed.

Agreed thats the issue and not the loan being given

Default notice
The date on the notice (7th is consistent with delivery on the 9th not the tenth (7+2=9 not ten) this would give the OP the required 14 days this from Brandon.(Para 33)
“it does seem to me that if posted on the 19th I would be entitled to assume it would arrive on the 21st.”

Yes but the start of the 14 days starts the day after service Peter, so my dates are correct as i took that into account, not to mention the fact it is possible they did not dispatch the notice till the 8th. And it being MBNA who at that time used UK mail, it is safe to say it was second class mail and they can not proof otherwise since they stop tracking the mail when it arrives at the royal mail depot. Any way thats getting in to side details now.

Basa is also correct that any minor discrepancy would be considered by the court as de minimis anyway.
The recent hearing in Brendon was to decide only if summary judgement could be given on the point, it was decided it could not.
This means that the issue of whether the time given to remedy was de minimis was arguable, as was the issue if any prejudice was caused by that error.
Both the issues will be decided on a case by case basis on the discretion of the court and based on the particular circumstances of the case.
The first issue here for the court to decide is, was the document presented an application form(an invitation to treat), or was it an unexecuted agreement issued under section 62 of the act.
They will contend that it is the later, the difference between the two being the presence of the prescribed terms.
The second issue will be if the agreement was properly executed and if an enforcement order can be issued under section 65 and section 127 or if enforcement is barred under section 127(3)
Their argument will be that the terms were either on the reverse of the document or accompanied it, this the court will decide on the balance of probability.

That i agree with in part, as i do not agree with point of discrepenacies in a DN as being de minus as the brandon case made it clear they were not de minus, and therefore were important issues in law regarding validity of the DN, the rest i do agree with, but it would be for the claiment to prove all of the above. So unless they can produce a true copy of the original signed agreement along with terms and conditions that are both legible and can show they are part of one and the same document, they have no case. The fact they have merely only produced a illegible in must parts reconstitued application form that was filled out at a service station, i find it hard to believe the defendant was able to read the terms and conditions or had the time to before applying. In anycase the application form in this case, is not an credit agreement as we all know for the copy GE has posted up.

And yes Basa is also correct in saying that it is imperative that you know what you are talking about when you go into court - I sure hope that is not a snide dig Peter following our previous arguements. :tung:
This is your case in summary.
Peter

I appreciate the input peter just like i appriecate basa's and anyone elses input. In large i agree with what you say above, but on some points we agree but have different opinions on, such as the postage of the DN and the 14 days starting not the day it is served but the day after - though you may agree with me on that. I do not agree with the de minius agrument that a court would see minor issues as de minus, at least not when it concerns the DN - If they did it would just end up being another brandon v Amex case that goes to appeal, but with difference claimant and defendant.

[Angry Cat]

Re: MBNA taking me to County Court - Urgent help needed

Not losing sight of the fact, of course. That MBNA always sent their template DN's out via contract mail;
third class mail!

[Guest]

Re: MBNA taking me to County Court - Urgent help needed

I appreciate the input peter just like i appriecate basa's and anyone elses input. In large i agree with what you say above, but on some points we agree but have different opinions on, such as the postage of the DN and the 14 days starting not the day it is served but the day after - though you may agree with me on that. I do not agree with the de minius agrument that a court would see minor issues as de minus, at least not when it concerns the DN - If they did it would just end up being another brandon v Amex case that goes to appeal, but with difference claimant and defendant.

Hi
I have seen an awful lot of thes case go through the courts in the last seven or eight years, and i can tell you that they rarely succeed.

The problem is that the courts are in favour of the creditor and if you are going for a technical defence you had better have all you i's dotted and your t's
crossed.

As far as section 61 compliance is concerned, in 99% of cases all that is required is a signed document and a good argument that the rest of the prescribed terms(not the whole t snd Cs ) are either on the other side or were attached.
Usually they bring out a witness to veryfy that this would have been their normal practice. As said they do not have to show a true copy in order to enforce they only have to show that one would have been signed on the balance of probablitities.
The true copy argument only applies to section 78 requests and that requirment can be met by producing a copy of the terms that would have been applicable at the time of signing, which can be reproduced without access to the orriginal.

These points have been gone over time and time again by me and many others, and really are not arguable anymore.


Peter