MBNA taking me to County Court - Urgent help needed

[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?

[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.

[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

Have they sent you disclosed documents?

Also call the court and tell them you intend to defend but require a time extension. Though i believe if you hand the acknowledgement of service within the initial 14 day period, you should get another additional 14 days in which you can fil your defense.

[GoldenEagle]

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

Thanks teaboy2. I am not sure what defence to put in - this is where I need help. I don't even have money for the coffin and these guys are taking me to court. I am making a formal complaint to MBNA about how they have conducted this. I am also doing an SAR. Then there is license for Varde to operate. And, CCA. - I shall hunt these and post them here. They say that because I have been paying £1month regularly, I must acknowledge the debt. A/c in dispute because they never responded to my CCA request. I really don't know where I stand. Yes Experto Credite made my life misery with they intimidating and threatening calls, calls to mobile and SMS with limited time offers. But what do I say, what value do I put on the form.!!! I haven't received any request from claimant for disclosure.

[teaboy2]

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

Only if asked by the debtor to prove there was a valid agreement signed by him/her. Most creditor biased judges would accept a recon unless the defendant hammers home the legal requirements of S61.

Yep just as i thought, section 61 still applies.

Thanks Teaboy. I did send CPR 31.14 to Varde's solicitors asking for agreement, default notice, Notice of assignment, termination and statement of accounts. I received nothing but they claimed to have posted twice. At the priliminary hearing their solicitor produced all these and gave me copies of all except teremination notice and statement - she was coy about letting me see the statements. I spoke to financial ombudsman who suggested I make a Formal Complaint to MBNA re them selling account on when it was in dispute and not notifying me or sending me assignment or termination letter (these look very fishiy in the sense that only MBNA rep has put his/her name). They never produced the termination notice. I told the judge that I received nothing, the judge confirmed the address with me and asked Varde's slicitor to give me the copies and copies were really bad. Since then they have sent me decent copies of terms and conditions. In addition to making formal complaint to MBNA, I was thinking of sending SAR but not sure who it should go to.

Also, what is 'Defenece and Counterclaim' and how do I get one? I am not on benefits - Thank God.

Your defence form should be included in the particulars of claim pack (N9B - Download and fill it in - includes counterclaim). Heres a link for issue a counter claim - PART 20 - COUNTERCLAIMS AND OTHER ADDITIONAL CLAIMS - Ministry of Justice

And one for Defence - PART 16 - STATEMENTS OF CASE - Ministry of Justice

Just till the end of this week for submitting disclosure stuff. So, I am desperately looking for guidance, inspiration and hopefully divine interruption. I am sick of these guys - they are criminals really with judicial blessings.

Have you received a request for diclosure of documents from the claiment?

If you need help with your defense just ask us boys and girls here.

[GoldenEagle]

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

Just till the end of this week for submitting disclosure stuff. So, I am desperately looking for guidance, inspiration and hopefully divine interruption. I am sick of these guys - they are criminals really with judicial blessings.

[charitynjw]

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

Edit

Apologies - intended post may have hijacked thread

[TANZARELLI]

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

What timescale have you got on this?

Have a read at this might explain a few things for you.

http://www.sfla.co.uk/litigation/claim-counterclaim.htm

[GoldenEagle]

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

Thanks Teaboy. I did send CPR 31.14 to Varde's solicitors asking for agreement, default notice, Notice of assignment, termination and statement of accounts. I received nothing but they claimed to have posted twice. At the priliminary hearing their solicitor produced all these and gave me copies of all except teremination notice and statement - she was coy about letting me see the statements. I spoke to financial ombudsman who suggested I make a Formal Complaint to MBNA re them selling account on when it was in dispute and not notifying me or sending me assignment or termination letter (these look very fishiy in the sense that only MBNA rep has put his/her name). They never produced the termination notice. I told the judge that I received nothing, the judge confirmed the address with me and asked Varde's slicitor to give me the copies and copies were really bad. Since then they have sent me decent copies of terms and conditions. In addition to making formal complaint to MBNA, I was thinking of sending SAR but not sure who it should go to.

Also, what is 'Defenece and Counterclaim' and how do I get one? I am not on benefits - Thank God.

[basa48]

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

I had an MBNA CC, lost my job and within months could not pay them anything. I spoke to CCCS and they suggested I offer and regardless of MBNA's response pay them £1 per month. I made a CCA request that MBNA ignored and after a reminder I placed Account in Dispute. I had a letter of intention of sending me default notice which never came. Letter invited me to phone them to seek help but on the phone they insisted on either payment of arrears or full settlement. I could do neither. Then started harassing calls. Anyway, earlier this year Varde's solicitors sent me court notice which I defended and then months later case was transferred to County Court. At the preliminary hearing they produced my Applications Form (insisting this was CCA), Default notice and letter of assignment. They claimed that as I had been making regular payments I must acknowledge the debt. They claimed they had sent these documents to me twice but none were received. Judge checked my address and took their word, ordered me to produce particularised defence. This I did questioning CCA, Varde's license to operate and MBNA selling the debt when the debt was in dispute. Now the case has been referred to FastTrack (attached letter). To kick off, I need to produce Disclosure Documents and Disclosure statement. And I don't have a clue.

Disclosure is just advising the claimants what documents you intend to rely on in court. These will include all yours and their letters and all 'agreements', DNs, NoA's etc. Include everything rather than leave some vital item undisclosed.

The statement will be all the Acts, Regs and case law etc. you will be citing. DO NOT explain chapter and verse, this gives your whole defence away too soon.

You need to be poring over this forum, CAG, all the Acts Regs and relevant case law to build up your defence.

Make it simple but to the point and above all accurate and relevant. Be bloody sure you are right and know what you are talking about.

[basa48]

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

Not quite correct, especially if the original terms were varied!

Impossible to make a blue peter without the original terms upon which the agreement was founded.

Agreed and also as HJ Waksman went to great lengths to point out, S78 is for information only not the 'proof purpose' of a valid credit agreement (S61).
------------------------------- merged -------------------------------

........................, are they no longer required to produce a True Copy of the original in court?

Only if asked by the debtor to prove there was a valid agreement signed by him/her. Most creditor biased judges would accept a recon unless the defendant hammers home the legal requirements of S61.

[Angry Cat]

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

Unfortunately a reconsituted agreement is now acceptable for the purposes of CCA s78.

Not quite correct, especially if the original terms were varied!

Impossible to make a blue peter without the original terms upon which the agreement was founded.

[teaboy2]

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

Unfortunately a reconsituted agreement is now acceptable for the purposes of CCA s78.

You could counterclaim for the harrasment, you need to create a reply, 'Defenece and Counterclaim'. There is usually a fee for the counterclaim but if you are on benefits or a low income, you cna complete form EX160 to obtain exemption form or reduction of this.

But section 78 only applies to CCA requests, are they no longer required to produce a True Copy of the original in court?

[charitynjw]

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

For clarity (or 'have I got it wrong.....again', lol)

GoldenEagle mentions the 'application' form.*

If, however, it contains the prescribed terms, statements concerning right of cancellation, signature, etc., my understanding is that, in law, it is regarded as an 'offer', which the creditor can accept or reject.

If accepted, the creditor sends confirmation in the prescribed manner. (Usually with the CC.)

There then exists a regulated agreement, which imposes liability (ie duty to keep card safe, etc.), & when used, a liability to contractual payments.

*My point being that the 'application form' could be more than just an enquiry as to the possibility of obtaining credit.