1st credit claimform - old MBNA Card debt *** SETTLED OUT OF COURT ***

[tomterm8]

Hi, B3rty, can you post up...

 

1, the particulars of claim

2, an explination of which account the particular of claim relates to (i.e. business, personal, fixed loan, credit card, overdraft etc)

3, if they are business accounts, what type of business, and any information as to whether you provided any security.

 

I'm sorry I haven't been round earlier - I'm just very busy at the moment.

 

 

Insidentally, the lawyer letter is just a normal tactic to scare you into paying. Have they sent you the information you requested yet?

[B3rty]

Tom

 

Thanks for your time I appreciate it....

 

This just relates to the credit card debt of which the detail is a couple of posts above interestingly they say they have writen to MBNA requesting the information and their 14 days is up on Wednesday 14th so I assume they will miss that date....just wondered if I should have a letter in mind to send them or just wait and post a defence for the 28th?

 

Berty

[tomterm8]

Tom

 

Thanks for your time I appreciate it....

 

This just relates to the credit card debt of which the detail is a couple of posts above interestingly they say they have writen to MBNA requesting the information and their 14 days is up on Wednesday 14th so I assume they will miss that date....just wondered if I should have a letter in mind to send them or just wait and post a defence for the 28th?

 

Berty

 

Hi, berty, I would just wait and see.

 

if anything happens, PM me. Or, PM me 5 or 6 days before the defence is due*. it's too early yet to write a defence, but you can check say http://www.consumeractiongroup.co.uk/forum/hfc-household/117249-hfc-restons-3.html#post1225665 or http://www.consumeractiongroup.co.uk/forum/general-debt/119530-what-would-you-do-4.html#post1225498 to see some recent defences (in the second thread, very recent, as i have not helped them write it yet;) )

 

It would be wise to start reading up the general law behind the defence you intend to use.

 

 

* Obviously, I'll only give advice on the thread, but otherwise I'll probably forget:)

[B3rty]

Hi Tom

I have a long train journey next week and I plan to print the relevant document to read and try and get to grips with the sections that relate to this

 

I have a copy of the origional act and a copy of the 2003 amendments FAQs is this more relevant?

 

Thanks

[Curlyben]

I love this line

We note that you are due to file a defence by 28th November 2007. Filing a defence will incur further legal costs for yourself and our client.

They are trying to scare you with this.

Keep going as without the executed agreement they are stuffed as this would be a complete defence under CCA s127(3)

 

I wouldn't worry to much about any amendments at the moment until/if they supply the requested documentation.

[B3rty]

Thanks Curlyben between your self,Paul and Tom I can see that I can obtain some good advice and help, its just that now I am begining to get to grips with things and would like to get a better understanding of the law so that I am not too reliant on you guys...

[tomterm8]

The three major things to look at are the 1974 act, the Wilson case, and the credit agreement regulations. Everything else goes from there.

[B3rty]

Great....thanks

[B3rty]

Hi Tom....or anyone who knows the answer...

 

Whats the relevance of the Wilson case....I have read through it and understand the points but just want to know how this is used when a CCA isnt produced as this would seem to point to an inacurate CCA?

 

Thanks

 

Berty

[tomterm8]

The wilson case principally deals with the fact that if a credit agreement is improperly executed, then the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, unless the creditor can provide a document containing all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3).

The burden of proof in on the creditor; that means, unless they can provide a properly executed agreement, the court will assume the agreement was improperly executed.

The main significance of the wilson case is that no equitable remedy (such as restitution) lies in respect of an improperly executed agreement in these circumstances.

[B3rty]

Great Tom...thanks I just wanted to make sure....1st Credit or their solicitors have not produced the CCA and the deadline has passed so I will prepare my defence to post on the MCOL site

 

I have a good idea of whats needed based on what I have read in the forums over the past week and will use one of those as a template

 

I will post this up first for your comments over the next few days its not due until 28th so is it best to wait until then or doesns't it matter......

 

Just worried they may produce something before the deadline and my defence could be shot or could I add a caveat that allowed an amendment should this be produced before the date......

[tomterm8]

I would tend to suggest filing the defence at least the day before, in case you have problems with MCOL.

[B3rty]

Just a couple of points that you may be able to clarify

 

When MBNA wrote to me advising they had sold the account to 1st credit last year, I wrote to first credit explaining my situation giving them my CCCS number and copies of my income/expenditure and list of creditors, asking them for bank details so I could make a payment each month of £1.

 

They wrote back refusing the payment and then followed this up with the usual phonecalls, I continued to send £1 for the next 5 months until I got their banking details and I have paid by standing order since then.

 

I just wondered if this effected my defence as I amy have admited the debt allbeit with the phrase

 

I have been advised that my account with MBNA has been sold to yourselves and I am responsible to you for payment

 

In total I sent 5 letters this being my last one

 

Dear Sir/Madam

 

Your Ref: XXXXXX

 

 

 

You have not responded to my previous 5 letters and last month did not cash my cheque, however despite your lack of interest in helping me set up a standing order payment I attach another cheque for £2, being this month and last month’s payment.

 

I would appreciate a bank reference so I can arrange a standing order each month

 

Yours Sincerely

 

I then phoned and insisted they give me their banking details..

 

With this in mind 3 questions

 

1/ bearing in mine my letters can I start my defence with the phrase

 

The defendant does not admit or deny the debt, and put the claimant to strict proof thereof.

 

Also they sent me a copy of the letter I received telling me the debt was assigned to them which starts

 

We write to introduce 1st Credit to you

 

2/Is this sutable as a copy of the deed of assignment as requested or should they provided a copy of the actual document?

 

3/ I am assuming if this goes to court they will need to provide the actual credit agreement, or will a copy suffice?

 

Thanks

 

Berty

[pt2537]

Berty

 

can i ask what the pocs say,

 

if you have already posted them my apologies could you post the number they are on and i will have a look

 

i would start the defence

 

 

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

 

 

with regards to you admitting the debt, unless a document containing the prescribed terms,signed by debtor and creditor in the prescribed manner is presented to the court you have not admitted nothing, however you do need to be careful in your writing from here on

 

in answer to point 3, they would need to produce a copy of the document, legible,containing all the required info as above for a court to enforce it

 

i hope this helps

 

regards

paul

[pt2537]

Just to help

 

Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

[B3rty]

Thanks Paul

 

I will upload the docs tomorrow/Friday as I need to borrow a scanner plus the draft defence that I am woking on for your comments..I still have 13 days to file this at MCOL so no real rush..thanks again

 

Berty

[pt2537]

13 days goes very quickly.....

 

but not a problem, im sure between us we can help you get the defence polished for court

[B3rty]

I am preparing my draft defence and wondered what’s the courts view could be on a DCA who bring a case to court with out all the necessary documents in place as 1st credit have admitted they do not have the CCA agreement and need to write to MBNA for this, so they could be wasting the courts time and have instigated litigation with out sufficient evidence.

Are there rules for this type of thing as I would like to add in my defence a breech of these if this is the case and point this out to the court.

 

I have searched for reference but can’t find anything relevant.

 

Also is it worth mentioning the Wilson case in my defence and if so what’s the correct reference to use for it?

 

Thanks

 

Berty

[Curlyben]

B3rty have a read through this as there maybe some useful bits for you.

Holding defence.txt

[B3rty]

Thanks..will do

[B3rty]

Just looked up CPR 16 and thought this may be useful info for anyone elce preparing a defence

 

PART 16 - STATEMENTS OF CASE

 

16.5 (1)In his defence, the defendant must state –

(a)which of the allegations in the particulars of claim he denies;

(b)which allegations he is unable to admit or deny, but which he requires the claimant to prove; and

©which allegations he admits.

(2)Where the defendant denies an allegation –

(a)he must state his reasons for doing so; and

(b)if he intends to put forward a different version of events from that given by the claimant, he must state his own version.

(3)A defendant who –

(a)fails to deal with an allegation; but

(b)has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant,

 

shall be taken to require that allegation to be proved.

(4)Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.

(5)Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.

(6)If the defendant disputes the claimant’s statement of value under rule 16.3 he must –

(a)state why he disputes it; and

(b)if he is able, give his own statement of the value of the claim.

(7)If the defendant is defending in a representative capacity, he must state what that capacity is.

(8If the defendant has not filed an acknowledgment of service under Part 10, he must give an address for service.

 

(Part 22 requires a defence to be verified by a statement of truth)

 

(Rule 6.5 provides that an address for service must be within the jurisdiction)

[Curlyben]

b3rty just realised we still haven't seen the POC !!

[B3rty]

I will post these up along with the letter of assigment and letter from LSC when I post my draft defence so that all the reference info is in one place

[pt2537]

written text will do, we just need to know what they have claimed in the POCs

 

thats all to allow us to help with the defence at this stage,by all means post the other info to but to advise further we need this info really

[B3rty]

I have now prepared my draft defence and would appreciate your thoughts and amendments, this doesn’t need to be submitted until the 28th so I have time on my side

 

My defence is based on the none production of the credit agreement plus I have used the proof of service of the defult notice and evidence of the deed of assignment as additional areas just in case they produce an executed CCA agreement ( although unlikly ) I am preparing caveats in case I need to amend the defence

 

I have uploaded the POC, letter from LCS, and the copy of the letter of assignment

 

http://i216.photobucket.com/albums/cc129/b3rty1/LCS1.jpg

 

http://i216.photobucket.com/albums/cc129/b3rty1/CourtForm.jpg

 

http://i216.photobucket.com/albums/cc129/b3rty1/LoA.jpg

 

THE NORTHAMPTON COUNTY COURT Claim: 7XXXXXX

BETWEEN:

 

1st Credit (Finance) Ltd - CLAIMANT

-and-

Berty - DEFENDANT

 

 

 

DEFENCE

 

 

 

 

1) The defendant does not admit or deny the debt, and put the claimant to strict proof thereof

 

 

2) On 1st November 2007 the defendant sent to the claimant by recorded delivery a request under the consumer credit act for a true copy of the executed Credit Agreement. This was received and signed for on 2nd November 2007

 

 

3)In addition on 1st November 2007 the defendant sent to the claimants legal representatives LCS solicitors at the same address by special delivery a request for information under the civil procedure rules part 16 to furnish within 14 days to enable a suitable defence information and copies of all the documentation they sought to rely on in court to include a copy of the executed credit agreement along with all records they hold on the claimant including true copies of default notice and deed of assignment along with a genuine copy of any notice of fair use of data as required by the Data Protection Act 1998. This was received and signed for on 5th November 2007

 

4) On 6th November the claimant wrote to the defendant a letter outlining details of the alleged debt stating they needed to write for a copy of the alleged credit agreement and enclosing a copy of the notification of the assignment dated 12th June 2006.

 

5) I would respectfully submit the debt is unenforceable under the Consumer Credit Act 1974 until such time as the claimant provides the necessary information

 

6)The request for the alleged credit agreement was made under section 78(1) running account credit, of the Consumer Credit Act 1974. The prescribed time limit for furnishing a copy of the alleged credit agreement is twelve working days from receipt of the request, as stipulated in Regulation two of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.

 

7)The claimants were legally obliged to furnish a copy of the alleged credit agreement by the 19th November 2007

 

8 Furthermore, under section 78(6)(b) of the Consumer Credit Act 1974, the Claimants may be committing a criminal offence as of the 17 th December 2007, as the default will have continued for a period of one month. The Claimants will have continued to commit an offence if they have not produced a credit agreement. The claimants have issued a Court claim without having any proof that a credit agreement exists. I would therefore contend that the Claimant’s conduct amounts to unlawful harassment

 

9)The claimant states the alleged debts were purchased from MBNA. I have not received a notice of assignment for the alleged debts from the original creditor. I therefore put the claimant to strict proof that privity of contract exists between the claimant and Defendant.

 

10) I have not received a copy of default notice from the claimant, and ask that the claimant provides the court with a true copy of such a notice, and with some form of proof of postage that this notice was sent to the correct address and was served with the proper notice before this claim was submitted.

 

11)Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

12)Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

 

13)The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant

 

Berty