MBNA taking me to County Court - Urgent help needed

[Guest]

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

Hi
Looking at your defense this worries me in particular

"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 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."

As we have tried to point out, the act says no such thing. All it ays is that there must have been an ageement signed, there is no requirment to produce the agreement in order to prove this in a civil court.
Authority in general civil law, and also mentioned i believe in the Manchester cases amongst niumerous others.

Peter

[teaboy2]

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

So in effect peter what your saying is they do not require a true copy of the agreement or show the terms and conditions?

Sorry peter but i disagree Harrison V link is an example of the need of a true copy of the agreement and the terms and conditions along with it having to conform to section 60 and 61.

Also at this moment in time we are not making technical arguments as we clearly have not got the documents that the creditor was order to disclose, and therefore can only issue an embarressed defence based on what was produced at the previous hearing which is illegible to in most places. And off course no agreement was produced just an application form.

Also all the onus of proof here is on the claiment, so it is for them to prove their was an agreement and lets face it, all judges ask to see a true copy of the original with terms and conditions.

The whole claim is based on an agreement, what your saying is they can base their claim on an agreement but do not have to produce pyhsical evidence of the agreement in which forms the back bone of their case. I see the misjustices coming already if that were the case.

As for the DN, well we have strict them to proof, so its now up to them to produce proof that they posted and that the defendant received the DN, and clearly as they used UKmail, the only evidence they will have is that the letter arrived at a royal mail depot, but no evidence it was received by the debtor. And as i said the 14 calander days start from the day after service for the simple reason that some people do not receive their mail till as late as 3-4pm in an afternoon, and therefore denying them a full calander day out of the 14 they are entitled too.

If QC kate sees nothing wrong with the embarressed defence i wrote up for GE, and no doubt she would have corrected me on any parts if she found fault with them, then I will go with QCkate and the embarressed defence i wrote up. Besides its virtually the same embarressed defence used against Varde and MBNA in a number of cases now, and each one has been successful so far.

[Guest]

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

Then you say that " The Branden cae made it clear that the time element is not de mimimis sic"
Lets look at what the judge actually said frome oearlier in this thread.

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.

He says that it is arguable not that it would not apply. As said this was an appeal against summery judgement, all that was shown is that the point was arguable.
The judge in the OPs cae can still find it de minimis based upon the evidence of this particular case.
Peter

[Guest]

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

So in effect peter what your saying is they do not require a true copy of the agreement or show the terms and conditions?

Sorry peter but i disagree Harrison V link is an example of the need of a true copy of the agreement and the terms and conditions along with it having to conform to section 60 and 61.

In Harrison Vs LInk they were sucessful in showing that a copy of the T and cs would not have been sent, this was proven on the ballance of probabilities. If you read the case you will see that the juge was swayed to this conclusion by Mr harrisons meticulous habits in keeping all records an reciepts, this lead the jjuge to believe that, if a copy would have been sent he would still have it.
The orrignal copy was not shown in court.

Also at this moment in time we are not making technical arguments as we clearly have not got the documents that the creditor was order to disclose, and therefore can only issue an embarressed defence based on what was produced at the previous hearing which is illegible to in most places. And off course no agreement was produced just an application form.

This is a technical argument there has been no breach

Also all the onus of proof here is on the claiment, so it is for them to prove their was an agreement and lets face it, all judges ask to see a true copy of the original with terms and conditions.

THey only have to prove on the ballance of probabilities, no unfortunately they do not.

The whole claim is based on an agreement, what your saying is they can base their claim on an agreement but do not have to produce pyhsical evidence of the agreement in which forms the back bone of their case. I see the misjustices coming already if that were the case.

Yes that is what i am saying

As for the DN, well we have strict them to proof, so its now up to them to produce proof that they posted and that the defendant received the DN, and clearly as they used UKmail, the only evidence they will have is that the letter arrived at a royal mail depot, but no evidence it was received by the debtor. And as i said the 14 calander days start from the day after service for the simple reason that some people do not receive their mail till as late as 3-4pm in an afternoon, and therefore denying them a full calander day out of the 14 they are entitled too.

I am affrai this is a dead end, realistically the derfault was issued and the debtor i not remedy even afrter the 14 days. None starter. If the defendant could show some predudice but in this case it seems unlikely

If QC kate sees nothing wrong with the embarressed defence i wrote up for GE, and no doubt she would have corrected me on any parts if she found fault with them, then I will go with QCkate and the embarressed defence i wrote up. Besides its virtually the same embarressed defence used against Varde and MBNA in a number of cases now, and each one has been successful so far.

Personally i would have just mentioned the enforceability aspects of the case but i admit that this may be arguable

See above

[teaboy2]

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

Peter am not interested in getting into an argument over the parts that we disagree on here. The thread is more important then us two arguing over who is right and who is wrong here. I stand by what i have stated and off course your entitled to stand by what you have stated too. But lets keep ourselves from getting into a third argument and destroying a third thread in the space of a week, over our disagreements shall we.

[Guest]

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

Peter am not interested in getting into an argument over the parts that we disagree on here. The thread is more important then us two arguing over who is right and who is wrong here. I stand by what i have stated and off course your entitled to stand by what you have stated too. But lets keep ourselves from getting into a third argument and destroying a third thread in the space of a week, over our disagreements shall we.

I am not interested in making anything personal, never have been.
What i say here is fact not opinion, if you are to help the OP you must have the correct information.


Peter

[teaboy2]

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

Peter i have the correct information and based the embarressed defence on that - because quite simply they have failed twice to produced documents under CPR31.14 request and have, so far, failed to disclose them to the defendant as per ordered to by the judge at the previous hearing. The DN is invalid as i can guarantee is was sent second class, and even if sent first class the 14 calander days starts the date after date of service as it is a 14 days not 13.5 and a bit days that are required to be given. They have also failed to provide the argeement and only produced a reconstituted application, hence proving they do not have a true copy of the original agreement at the that time, if they had, then why did they not produce it or a recon version? Probably because they do not have one. As you said peter balance of probability, though clearly this argument can only be argued once we have disclosure of documents from them, as then we will know exactly what they are relying on and form an full defence, and i expect the recon application is what they are relying on a evidence of an agreement - Don't you?

All these technical arguements that are now being brought up are pointless and unnecessary, as things currently stand.

[Guest]

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

HI The only defence that can reaonably be offered is that the agrement is jundnforceable under section 127(3)

Because the signature document did not contain any of the requirments of section 61 eccepting the signature.
But the OP must be prepared to state that no other documents were with the application, as i said this will be decided on probabilities, the judges impression of the defendants statements of case is vital as we have seen in Harrison and come to think of it Slater.
Also there was no compliaence with the copy regulations required by section 62( as per harrison).
You could throw in the default argument as well but as i say that is week
Peter

[teaboy2]

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

HI The only defence that can reaonably be offered is that the agrement is jundnforceable under section 127(3)

Because the signature document did not contain any of the requirments of section 61 eccepting the signature.
But the OP must be prepared to state that no other documents were with the application, as i said this will be decided on probabilities, the judges impression of the defendants statements of case is vital as we have seen in Harrison and come to think of it Slater.
Also there was no compliaence with the copy regulations required by section 62( as per harrison).
You could throw in the default argument as well but as i say that is week
Peter

Now i agree on that, and i will add the section 127 (3) to the defence. Actually on second thoughts though i agree, unfortunately section 127 (3) was repealed in CCA 2006

[Guest]

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

YOu see i am unsre what particular peces of information you wish them to disclose that they have not already.

Course there is the T and cs but that will be no problem. and they will say that the application form is the signed agreement.
So i think that this will be what the argument wil be based on.

In support of you DN argument, i have been trying to remember the legislation that gives delivery times for official notices perhaps AC can refresh my memory it would be as well to include it in any defence if applciable.

Peter

[teaboy2]

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

Well the judge ordered the claiment to disclose better quality copies of documents they intend to rely on, i assume based on what GE said that he means all documents they intend to rely on.

The application form if you look closely shows no perscribed terms such as interest, APR, repayment details or credit limits etc. None of them are there, so it would be very difficult for a judge to conclude it is an agreement even without the terms and conditions.

Yes i too was trying to remember the actual legislation regarding postage and service too.

Must admit peter i find putting our heads together on a case, is much better then having arguments with each other -

[Guest]

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

HI
I think it may be as well just to re- cap what the creditor must do in order to comply with the act in this case.
Section 61
Firstly the signature document must contain the signature of the debtor and all the other prescribed terms, in this case the interest rate the repayment arrangements and the credit limit.
Next
Section 62 says there must have been a copy of the executed agreement left with the debtor after they had signed and sent the application off.
If sny of the section 61 requirements were not followed then an enforcement notice cannot be issued under section 65 as section 127(3) prohibits it.
If section 62 is not followed then an enforcement notice may be issued but only after consideration by the court.
Peter
------------------------------- merged -------------------------------

Now i agree on that, and i will add the section 127 (3) to the defence. Actually on second thoughts though i agree, unfortunately section 127 (3) was repealed in CCA 2006

Sorry when was the agreement made

Section 127 was repealed in 2007(April) i thought the agrement was earlier

Peter

[Guest]

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

HI
I think it may be as well just to re- cap what the creditor must do in order to comply with the act in this case.
Section 61
Firstly the signature document must contain the signature of the debtor and all the other prescribed terms, in this case the interest rate the repayment arrangements and the credit limit.
Next
Section 62 says there must have been a copy of the executed agreement left with the debtor after they had signed and sent the application off.
If sny of the section 61 requirements were not followed then an enforcement notice cannot be issued under section 65 as section 127(3) prohibits it.
If section 62 is not followed then an enforcement notice may be issued but only after consideration by the court.
Peter
------------------------------- merged -------------------------------


Sorry when was the agreement made

Section 127 was repealed in 2007(April) i thought it was earlier

Peter

You do know of course that the repeal was not retrospective and sectin 127(3) still applies to earlier agreements?

Peter

[teaboy2]

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

HI
I think it may be as well just to re- cap what the creditor must do in order to comply with the act in this case.
Section 61
Firstly the signature document must contain the signature of the debtor and all the other prescribed terms, in this case the interest rate the repayment arrangements and the credit limit.
Next
Section 62 says there must have been a copy of the executed agreement left with the debtor after they had signed and sent the application off.
If sny of the section 61 requirements were not followed then an enforcement notice cannot be issued under section 65 as section 127(3) prohibits it.
If section 62 is not followed then an enforcement notice may be issued but only after consideration by the court. Yeah Section 65 (1) i have been thinking about that but decided to not refer to it purely because it tells the judge he has the power to enforce regardless of the agreement being improperly executed. So i choose not to include it as to not tip off the judge, so to speak. Hopefully the agreement is prior to 2007 and then section 127 (3) would apply.
Peter
------------------------------- merged -------------------------------


Sorry when was the agreement made

Section 127 was repealed in 2007(April) i thought it was earlier

Peter

Looking at the application form it looks like the 06/2007 to me though its not clear so it could well be a 1 and not a 7. GE can you confirm what year the agreement was allegedly taken out?

Actually scratch that, i just had another look at the appilcation form and it does say 2x/06/01 so yes section 127 (3) will appply

Updated to show in below defence:

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 they must produce a true copy of the original signed agreement complete with percscibed terms and in persribed form. Under the CCA a breach of section 61 where the prescribed terms are not contained within the sigature document, section 127(3) (applies to all agreements made prior to april 2007) prevents an enforcement order being issued under section 65. 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. the defendant also refers the court to section 62 and the fact that no copy of the agreement was given to the defendant which invokes unenforceabiltiy under section 127(4) (Harrison V Link Finanical Limited [2011] EWHC B3 (Mercantile) (28 February 2011) - Which also happened to centre on an alleged MBNA credit card agreement.

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

Read more at: MBNA taking me to County Court - Urgent help needed - Legal Beagles Consumer Forum

It also states this at the top of left corner of the application:

Mbna credit card (illegible word) - cherwell valley service station
Event date 25th june to 1st july 2001
FDS - Field Marketing

So it was an field marketing event held at cherwell valley service station between the 25th june to 1st july 2001 - so its not an agreement but an application where an agreement wouldbe issued subject to acceptance by the creditor.

[Guest]

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

HI
No the way it works is that the judge has to grant an enforcement orer under section 65 if the agrement has been improperly executed.
The fact that the agrement has been improperloy executed is prety much assured, sectin 65 allows the judge to use his discresion under section 127(1) on the sanction to apply to the creditor, usually this is nothing and the enforcemnt order is just granted, but in a prescribed terms breach section 127(3) prenvents this and the agrement is unenforceable.

So the worcding should be something like "Under the CCA a breach of section 61 where the prescribed terms are not contained within the sigature document, section 127(3) prevents an enforcement order being issued under section 65.

Peter