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

[pt2537]

Hi Berty

 

well the POCs are an eyeopener arent they;)

 

not sufficiently particularized for starters,

 

we have something to work with thats the main thing.

 

im really tired at the mo so if you dont mind i will take a look in the morning.

 

its been hectic day today

 

regards

paul

[B3rty]

Paul...

 

Please rest and take your time as there is no rush, I really appreciate your help

 

Berty

[pt2537]

Hello Berty

 

the defence looks good, could do with a few tweaks here and there but you are on the right track

 

i will have a look over the day or so and see what i can come up with, i will as always speak to curly and tomterm8 for their opinions and then post up what i suggest would be good amendments

 

regards

paul

[pt2537]

Hi Berty,

 

ive uploaded a defence in word format,

 

i hope its ok, have a read and let me know

 

regards

paul

[B3rty]

Paul

 

Thats fantastic and a big thank you for your time and effort its very much appreciated, I will upload this to MCOL next Monday 26th and follow up the next day with a call to make sure its acknowledged as its due on the 28th

 

Berty

[pt2537]

Hello Berty

 

i have PM'd Tomterm8 just to ask his opinion on it, ive already spoken to curly ben and he seems to think its ok , i would value toms comments as well though.

 

hopefully tom will look in when he gets a mo so i would hang fire until hes looked if thats ok, in any case we have a little time yet

 

still im glad its of use to you, hopefully it will give em a big slap in the face and make them take notice that youre not gonna be walked over

 

regards

paul

[tomterm8]

Seems OK, Paul.

 

Only caution is, I think it's so long it probably won't fit into MCOL, and so the OP would be advised to find out how to serve it to the court by fax.

[tomterm8]

Oh yeah, i would TYPE but not sign my name. this is entirely legitimate with court documents, and is as binding as a handwritten signature.

[pt2537]

Thank you tom, truly appreciate your comments:)

 

yeah, it is a wee bit long but fortunately we have a bit of time to get it in,

 

thanks again for looking in

 

regards

paul

[B3rty]

Hi Guys

 

Thanks for your advice

 

I will fax and post by recorded del as I have over a week

 

berty

 

I have just checked the character count and its 9566, the MCOL allows 8000 so I need to fax/post this and have emailed them to ask their advice on the correct proceedure as I have a part completed MCOL defence claim open and need to cloase this by 28th...

[B3rty]

My defence was due on the 28th but because I couldn’t file on line due to the size I faxed it across on the 20th so 8 days early

I received the court letter of acknowledgement today dated the 20th and advising me a copy had been sent to 1st Credit and they have 28 days from receipt of receiving the copy to contact the court.

So to be clear as this may be a standard letter, is that 28 days from the 20th or 28 days from the due date…?

[tomterm8]

I believe it is 28 days + 5 days from the date of the letter. You can call the court up and ask them, to be sure.

[B3rty]

I called Northampton today to check on the progress of the case to be told that it was transferred out to my local court on the 20th as the claimants do not accept my defence and just wondered what I should expect now in regards to this….I assume the court will write to me with a hearing date or are there other hurdles before then?

Berty

[pt2537]

hello Berty

 

Pretty much standard by the seems of it,

 

they have had your defence and rejected it so they are pressing ahead with the case, oh well game on by the looks of it

 

right then, what will happen now is the court will send you an allocation questionnaire , it will be either a N149 or N150

 

when hte form arrives let me know and i will take you through the filling in of it and also the directions which you should request

 

then the AQ goes back to court and the court will let you know whats happening

[B3rty]

Thanks Paul

Currently they have not produced an agreement, they wrote to me on the 6th November saying they had requested a copy from MBNA but as of yet its not surfaced, so I assume they are playing for time here until it turns up as I doubt they would actually go to court with out this

Berty

[pt2537]

Thanks Paul

 

Currently they have not produced an agreement, they wrote to me on the 6th November saying they had requested a copy from MBNA but as of yet its not surfaced, so I assume they are playing for time here until it turns up as I doubt they would actually go to court with out this

 

Berty

 

Well no Agreement or an agreement without the required terms signed in the required manner is TOTALLY unenforceable so a judge should not issue a judgment against you without production of such.if it does go to trail dont panic we can put together a skeleton arguement and witness statement etc so no worries, i would be surprised if they actually went all the way with this though

 

Merry Christmas

 

Paul

[B3rty]

Thanks Paul....Merry Christmas to you and all the good folk at CAG...I will post up the local court form when it comes through..

 

Berty

[B3rty]

Just a quick thought

 

As the DCA are now outside the 12+ 2+ month deadline should I not be complaining to TS/OFT regarding their pursuit of this alleged debt ?

 

I haven’t received the AQ from my local court yet and I am bemused that they would even consider this action without a CCA and just feel like fighting hard on this one.

 

Any thoughts?

 

Berty

[pt2537]

Hi Berty

 

 

Merry Christmas to you and family,

 

the debt is now unenforceable and a criminal offence has been committed so a complaint to trading standards is a MUST

 

Trading Standards Central - Trading Standards and Consumer Protection information for the UK goto that site and use the post code search to find your local trading standards

 

Also you MUST highlight the fact that they have entered litigation without a valid credit agreement being produced

 

With regards to the AQ, it may be best to give the court a call and enquire when the AQ's will be dispatched as you have not received one and ask about the progress of the case

 

Regards

paul

[B3rty]

I have had the N149 AQ arrive in todays post with a last date for filing of 8th Jan 2008, It looks straight forward but need help with the other information section.....

 

Have a great xmas and will catch up after.....

[pt2537]

No worries Berty, ill post some directions and other info shortly for you to have a browse through

[B3rty]

Hi Paul

 

I found one of your previous replies that suits my purpose

 

 

In the ************* County Court

Claim number **********

 

 

 

 

 

 

 

 

Between

 

 

 

************* - Claimant

 

 

 

 

 

and

 

 

 

 

 

 

 

xxxxxxxxxx - Defendant

 

 

 

 

 

 

 

 

 

Draft Order for Directions

 

 

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

Do I need to send a copy of this to the claimants solicitors?

 

Also I have been reading CRP rule 3.4 and wondered if I could get the case struck out as they have brought litigation with out having a copy of the CCA as per CPR part 16 7.3

 

Not sure if this is needed or how to fit it in

 

I would like to return the AQ on the 2/1/08 as I can visit the court in person, do I have to post a copy of this to the claimant as well?

 

Berty

[pt2537]

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

N149 Allocation Questionnaire

 

Section G - other information

1. It is requested the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimants claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and fails to comply with the requirements of practice Direction 16 in so far that it fails to comply with point 7.3 which states

7.3 Where a claim is based upon a written agreement:

(1)

a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

The claimant failings to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit act 1974 and the Consumer Credit (Agreement) regulations made under the act. The consequences of the document failing to comply with the regulations and the Act can render the agreement unenforceable even by the honourable court.

If the court does not consider it appropriate to strike out the claimants case as suggested above, I respectfully request that the court considers the request set out below in point 2

 

2. If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

and

 

 

In the ************* County Court

Claim number **********

 

 

 

 

Between

************* - Claimant

and

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

 

 

right then, thats the two parts which you need to print out and attach to the allocation questionaire

 

ill be back in a mo with the other info

[B3rty]

Thanks Paul...this is great and I will personally take it to the court on Monday.

 

I am OK with completion of the rest and assume any copy of this will be sent by the court to the claiment.

 

 

Berty

[pt2537]

n the section G box put the following

 

Please find the following attached to this allocation questionnaire;

 

1) Section G - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the claimant on **/**/2007.

 

 

 

 

ahha thats the problem, never assume anything:)

 

no i would send the copy of the AQ to the claimant, and as above, in the section G other info box put the above text which then refers the judge to your attachments