Hillesden Securities / MBNA stay lifted

[The GodMother]

I really cant help much as i will need sight of the docs for me to comments.

 

If you can borrow or even by a cheap scanner, second hand shops should have some, then it would be helpful.

 

Based on what u have said it looks like they have a unenforcable application form which is about as unful as a chocolate teapot.

 

you can ask the court to order they do a full disclosure as in a CPr which i will post up later unless some one else gets there b4 me.

 

that wy they will have to provide a full copy of the cca with the correct T+cs relating to when acc opened and a load of other stuff. If they fail u can ask the courts to strike the claim out.

 

U can also make this a unless order which means that unless they do as court has ordered the case is thrown out.

[Multay]

Cheers GM...

[tiglet]

Also, why are they going for a charging order - has there already been a CCJ?

[surfaceagentx20]

Can we see the DN? I've seen that many screwed up MBNA DNs ..

 

x20

[The GodMother]

the guy does not have a scanner but if it is not to long then he might be able to type it out for us to look at.

 

this is a full CPR foru to see and use if necessary.

 

Account In Dispute

 

Dear xxxx,

 

I acknowledge receipt of your notice of intended legal action sent by your company on 3rd July 2007 which was received on 6th July 2007.

Please be aware that any proceedings will be extremely vigorously defended and that a counterclaim will be made against ** DCA **. I am unable to respond further at this time, since you have given me inadequate information to investigate the claim. Please note that under the Overriding Objectives, you have a duty to act reasonably at all times.

 

As you are aware, under the pre-action protocols of the Civil Procedure Rules, your letter before action should have included the following information:

4.3 The claimant's letter should —

(a) give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

(b) enclose copies of the essential documents which the claimant relies on;

© ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

(For many claims, a normal reasonable period for a full response may be one month.)

(d) state whether court proceedings will be issued if the full response is not received within the stated period;

(e) identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

(f) state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

(g) draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

I note that your letter failed to enclose copies of the essential documents upon which you will seek to rely, failed to ask for acknowledgement of the letter, failed to ask for a written response within a reasonable period of time, and did not draw attention to the courts powers

to force all parties to comply with the practice direction.

I intend to provide you with a full written response, but as yet I have not got adequate information to investigate your claim.

To enable me to investigate this claim I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

If you fail to disclose this information, I may apply to the court under Part 18 and part 31 of the civil procedure rules.

I will be unable to respond to your claim without this information, and by failing to supply it before starting legal action you would breach the overriding objective of the Civil Procedure Rules.

 

Request for disclosure;

I request that you send me information vital to investigating your claims, including:

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor.

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual

intervention in relation to my account formerly held with ** CREDITOR **.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

3. Any other documents you will seek to rely upon in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

 

Please note, I will respond to your claim in full within 14 days of your providing this information. I must advise you that if the information is not forthcoming, or if you start proceedings without furnishing this information, it will be reported to the Court that you are denying me the opportunity to settle this matter amicably.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

Yours Faithfully,

to submit it u need to do the following.

Her Majesty's Courts Service - Home amd fill out a n244 and takig you fee to court, if your exempt you will need to fill out a ex160.

If u need any help then shout as i can help with this.

http://www.hmcourtsservice.gov.uk/courtfinder/forms/ex160.pdf exemption form

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf N244

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex50.pdf fees list

http://www.hmcourtsservice.gov.uk/courtfinder/forms/ex160a_e.pdf exemption rules.

For your ease i would recomend that u bookmark the courts website.

Any way just so u know u will need to include 2 copys of the N244 and CPR one for the courts, one for MBNA and if u want one one for u. I helps if u keep one for your self as it help u keep up with what you have done and when.

As a cheat method what i do is print one of everything then sign the one and photocopy everything else as that saves time for me.

if you need any help with these form please let me know if u also do quilify for exemption then what u need to do is have up to date, within a month of your application date, copies of your benefits and send it to the courts that way ur application wont be denided.

If you need to make the application and cant wait for up to date info then i would say pay the fee and claim it back later once u have the info.

GM

[emmaf01]

Are you still paying via Payplan each month? Can you get an accurate and up to date statement of account to also dispute the amount claimed?

[citizenB]

You might also find the information in the post in the following link, provided by alananala, it deals with the situation where a company will be relying on copies of documents in court and how they would need to prove the authenticity.

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful-7.html#post1741657

[Guy]

Wow!!

 

Ok - long hand be this will.

 

Just so everyone has the sequence straight.

Hillesden filed a claim way back - my defence was very simply almost a one liner with they have failed to comply with a CCA1974 request so they are unable to commence or continue with legal action. The case was stayed until last month.

 

THey now have an application notice applying for a summary judgement based on:

 

1. On 20th April 1994 the defendent entered into a credit agreement with MBNA. I hereby exhibit "CP1" a copy of the agreement.

 

2. On 21st June 2005 the outstanding balance of £12432.19 was transferred to the claimant as part of a large portfolio by way of legal assignment. I hereby exhibiy "CP2" a statement of account and "CP3" a copy of the assignment.

 

3. The Defendentmade a request for documents under the Consumer Credit Act 1974 which was received by the Calimant on 31st Oct 2007. In accordance with the regulatory statue, the claimant sent a letter to the defendent on the same day acknowleding the request and enclosing a copy of the assignment. I exhibit a "CP4" a copy of the letter.

 

4. Due to the date of the agreement the document had to be retrieved from archive store. The claimant wrote to the defendent every 21 days in line with the CCA updating hime of the progress of his request. I ..... "CP5" copy of the letter.

 

5. In May 2008 the paper documents were received by the Claimant and subsequently forwarded to the defendent on the 28th May 2008. ...."CP6" copy of the covering letter.

 

6. As the request for documents has been satisfied the points raised by the defendent in his defense are no longer valid.

 

7. The defendent does not dispute liability for the amount outstanding only the claimants entitlement to recover it. The Claimant has complied with eth Consumer Credit Act 1974 and provided the Defendent with documented proof of their entitlement to recover the balance.

 

8. It can only be assumed that the defendent is not in a position to pay the amount owing in full, or even make realistic installment payments. Our intention of issuing a claim was to obtain judgement against the defendant for payment of the full amount forthwith and then to apply for a charging order on the defendants interest in the property.

 

9. If we are successful in obtaining a CO there is absolutely no intention to seek to enforce it by applying an order for sale, nor to use it as a lever to try and force the defendent to make payments he cannot afford. We merely wish to register the CO so that if the property is sold sometine in the future then hopefully the will be sufficient equity to enable the debt to be repaid.

 

10. I therefore submit that the defendant has no valid defence to the claim and request that summary judgement be entered for £10983.19 plus £190 Claim fee, £100 claim costs, £75 Application fee and £210 Summary Judgement costs, Minus £219.86 paid by the defendant, a total of £11339.33 payable forthwith.

 

Take NOtice that if the defendant wishes to rely on written eveidence at the summary judgement hearing, he must file written eveidence at Court and serve copies on the Claimants solicitors at least 7 days before the hearing.

 

 

My points against this so far are :-

1. they keep saying a copy of the agreement has been sent but it is in fact a copy of an application form. The copy of assignment does not mention my name or account details it is a bulk generic peice of paper.

 

2. The selection of MBNA statements are in no way complete starting in early 2002 but with a final transfer statement showing the the balance was transfered out.

 

3.they did indeed write every 21 days.

 

4. They sent me paperwork as desribed above - assoinment, statements and application form.

 

5. No change in defense - they have not satisfied the CCA as far as i can see.

 

6. I do not dispute the debt - i had the money and spent it butsurely it is up to them to proove that i should be paying them!

 

7. True i cannot pay in full - i was paying them in installments via Payplan. Prior to the claim. I stopped when the original claim was received.

 

8. Fair enough.

 

9. I cannot balance their figures to mine - they are claiming £10983.19 plus costs less £219.86. My recvords at Payplan show i have paid over £1600 since the start. My original defence did ask for all statements and paperwork that they would rely on in court. It may have been very wishy washy but i would have expected a copy of their statements for my account as i have been paying someone!!

 

OK - i have read a lot of threads along these lines - There are many where an application has been valid but not with all of the prescribed terms. This is a 1994 and the copy sent does not have all of the terms. the Ts and Cs are referred to and were probably on the reverse but i have no copy. Presumably once accepted a copy of the agreement would have been sent to me but i have not got one nor have they sent one.

 

wilson also seems to be very popular.

 

what i need to do now is work out a plan of attack and i would assume that the strongest areas are with the application and non conforming and also the amount owing.

 

Thanks for taking the time to read - if you needd further info please ask.

 

Guy

[citizenB]

Guy, when you say the t&cs are referred to, in what manner are they so. Does it say "overleaf", in another document or does it say something like this in a section headed up :

 

Principal Cardholders Request and Declaration

 

Please issue an MBNA credit card to me and if applicable to the person I have named as an Additional Cardholder. I confirm that the information given is true and complete. You may make such enqurieis as you consider necessary in connection with this Credit agreement or any other product you may wish to offer me in the future. I authorise you to disclose any information about me and my mBNA credit card accoutn and or payment Protectin Cover to any credit reference agency who may retain a record of any such search. Information thus registered is used to help make credit decisions, for fraud, prevention or tracing of debtors. " I have received a copy of and agree to be bound by the MBNA Credit Card Terms and conditions" and I understand that I am also responsible for paying any balances due on my Credit Card Account. I understand that MBNA reserves the right ot issue a standard card which will have a lower credit limit.

 

Now that particular bit I have highlighted suggests that the T&Cs are separate and that there were no terms and conditions on the other side of the document.

[The GodMother]

they have not provided u with the T+Cs relating to when the acc was opened. These are suspose to be supplied with the CCA.

[Guy]

Citizen,

 

The Application forms declaration section refers to 'Conditions of use as set out overleaf..'

 

Godmother - The conditions as set out overleaf have not been sent inspite of several requests - i have asked for these at least twice. Have copies of letters sent to Hillsden.

 

Guy

[Guy]

Godmother - i notice you have had some success with Westcot.

 

I also have another MBNA debt with westcot and also another MBNA with Hillsden. I havent made any aproach to these as yet as really waiting to see what happens with this one and also one really bad headache is more than enough.

 

Should i make a CCA request on both of these?

I would imagine that the court may take the view that if i am not questioning at least the other MBNA account held with hillsden then why the current claim.The sums involved are paltry compared to this claim - but...

 

Guy

[surfaceagentx20]

Guy,

What you have posted above is the content of a witness statement in support of the Claimant's application for summary judgment. First, as I understand you, your defence was a one liner and limited to pleading there had been a breach of section 78 by the creditor by his failing to deliver a copy of the agreement and statement of account.

 

If so, I have to agree that this defence is not a defence on which you have a reasonable prospect of succeeding at trial. I'm not sure when these proceedings issued but for the moment will presume they issued after you had submitted your section 78 request on or just before 31 October 2007 and that it is your case that the claimant had failed by when the proceedings began, to comply with the request. This would be to presuppose therefore that at the date of the comencement of the proceedings the provisions of section 78(6) operated to prevent the Claimant from enforcing the agreement.

 

It is my belief that section 78(6) ceased to operate as a prohibition on enforcement beginning with the day the agreement terminated. Section 78 is one of a number of sections comprising Part VI of the CCA 74 entitled 'Matters Arising During Currency of Credit or Hire Agreements'. The Act is arranged in a chronological sequence of Parts, so that for example, Part IV is concerned with 'Seeking Business', Part V with 'Entry into Credit or Hire Agreements, Part VI, as I have described, with Part VII dealing with 'Default an Termination.'

 

I do not know when the agreement terminated but would imagine it had terminated under Part VII long before October 2007 on the basis that if it had not terminated but was running, MBNA would not have assigned their benefit in the agreement in June 2005.

 

As such the one liner defence is inadequate. You need more to stand a chance of success and you need to amend your defence to incorporate issues which do have reasonable prospects of success.

 

One might be that the agreement is an unenforceable agreement under section 65 on the grounds it was improperly executed. Another might be the default notice was ineffective. As to this latter point, iIt is why I suggested earlier, that you produce the DN if you could. If you can not because you do not have a scanner, can you at the very least say[ [1] how you received, [2] the date of the DN, [3] the date given in the DN as the date by which you were requried to comply with it, [4] the amount you were required to pay in order to comply with the DN and [5] what the consequences of non-compliance were stated to be?

 

If none of these alternative defences are available such that the claimant can show the agreement was properly executed and properly terminated, your fallback position will (unless someone else on CAG can advance some other defence for you) be limited to arguing you do not owe as much a the claimant says you owe. That may be achieved by seeking to strike out penalty, admin charges, interest and the like or by saying debits to the account were not of your making or that credits have not been applied when thy should have been. You will need to satisfy the court by evidence, that your version of the statement of account is more credible than the Claimants.

 

x20

[Guy]

x20,

 

I have followed a couple of threads where initial defence was inadequate and i do have some concerns here.

 

As for the DN - i dont have a copy. In my answers to the allocation questionaire i did request a copy but have not received one.

 

Do you suggest that i make an amended defence based on information produced, arguing that the original agreement was inproperly executed or at least cannot be proven to be properly executed.

 

This isnt a case of not paying its about buying time to pay and to be honest the house is now into negative equity and one month in arrears due to Northern Rock reverting to standard rate and no other mortgage company touching me cos of a very seriously poor credit rating.

 

I dont want to give up but .....

 

guy

[Guy]

X20,

 

I have been thinking about this over the weekend.

 

You are saying that once a default notice has been sent and the process followed then the original agreement / contract is broken and then the Consumer Credit act no longer applies - is that correct??

 

this then means that when the debt is sold on the new creditor does not need to produce the documentation as per CCA to have the debt enforced.

 

This is surely incorrect.

 

However - if i assume that this is in fact correct then there must still be a correct procedure for the old debt owner and new owner to follow.

 

In my case i still only have an application form, some statements and an assignement which i could knock up in twenty minutes on the computer.

 

Surely it should be upto the creditor to prove that the paperwork they have shown me relates to the debt in question in which case thwy would still need to have the original documentation for the court to enforce.

 

Should i amend my defence based upon thier witness statement as there is no clear link between any of the paperwork produced so far.

 

What is the correct legal process for one creditor selling the debt to another and what proof do they require for the courts.

 

Anyone please.

 

Guy

[surfaceagentx20]

Guy

No, I am not saying the Act ceases to apply once a default notice is served. Rather that sections 77-79 do not apply so as to give rise to a prohibition on enforcement if the creditor should fail to provide a copy of the agreement pursuant to a request delivered by the debtor after the agreement terminated.

 

If a claim is subsequently brought by the creditor or his assign the Claimant will have an obligation from the outset on the issue of the proceedings to provide a copy of the agreement to the Defendant by attaching it to the Particulars of claim and bringing the original agreement to the hearing. This is the effect of CPR PD 16 Para 7.3, the text of which is as follows:

 

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, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

 

The obligation under CPR PD 16 is relaxed where the MCOL process is used. But that does not relax the justice of the requirement that the Claimant should provide a copy of the agreement and in a situation where the MCOL Claim form mentions the agreement, the Defendant is entitled to call upon the Claimant to produce a copy of it under CPR 31.14.

 

31.14 Documents referred to in statements of case etc

(1) A party may inspect a document mentioned in-

(a) a statement of case;

(b) a witness statement;

© a witness summary; or

(d) an affidavit.

 

In short therefore, the remedy available to a Defendant who has been sued under a CCA but where the agreement has not been copied to him from the outset, is not to request a copy of the agreement under ss77-79, but rather to employ CPR 31.14. The ideal time to swing CPR 31.14 into action is from the outset before service of a Defence as per the advice set out in this thread, however, it can be employed at any time thereafter and applies not only in relation to Particulars of Claim, but to all other pleadings, witness statements and affidavits as set out in the rule.

 

You may think it appropriate to swiftly submit a CPR 31.14 request for any document mentioned in the Particulars of Claim and in the witness statement. I'd recomend it. Once you have those documents, if they reveal grounds of defence, put them in your witness statement in answer and say you will amend your defence to suit.

 

x20

[Guy]

x20,

 

On their original POC they only refered to the agreement.

 

I have taken your cpr from the thread and amended as follows:

Dear Sir,

Re: Hillesden Securities V Me xxxx

 

CPR 31.14 Request.

 

On 01 November 2007 I received the Claim Form in this case issued by you out of the Northampton County Court.

 

Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the document mentioned in your Particulars of Claim:

 

1. The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, 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. Further, that any general conditions incorporated in the contract should also be attached.

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defense .

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

 

I have put it as from the original claim should this now be the latest paperwork from the courts??

 

The issue that i can see is that as far as they are concerned they have complied with my original request and supplied a copy of the agreement. According to their wit statement the paperwork was retrieved from an archived source and recieved in thier offices and a copy sent to me.

 

It is therefore possible that they have the original copy, however, the terms and conditions refered to in the application have never been produced.

 

I take it that this CPR request is a stronger request to produce the original and what happens if they are unable to produce the original in court?

 

Is the letter ok and should a copy go to the court?

 

thanks

Guy

[surfaceagentx20]

The big problem for me here is that we're scratching about for defences after the event and in the face of an application for summary judgment. There's no clear picture to look at it; no documents or worthwhile hard facts save for your freely made admission: 'I do not dispute the debt - i had the money and spent it', followed by the question 'but surely it is up to them to proove that i should be paying them!'

 

This question begs another: Why would they have to prove as true that which you admit to be true?

 

Next, Your non-compliance with section 77 defence was a poor point and needs more if notwithstanding your admission that you do not dispute the debt, in fact you wish to dispute it. What you really want to do is to discover with the assistance of this site whether there may be any technical breaches of the Act which might be trotted out as a defence, right?

 

Although CPR PD 16 says that a copy of the agreement should be provided and CPR 31.14 enables you to go after it where it is not provided from the outset, seemingly, the Claimant has provided a copy of the application under an earlier request without terms and conditions. This may not amount to compliance with CPR PD 16. What defence do you advance arising out of that fact? Further, what defence if any do you advance following sight of the application? If you do not know it is unlikely that those who have not had sight of it will be able to assist.

 

I have asked for minimal information regarding the default notice. None has been provided.

 

I can't imagine a CPR 31.14 request is going to produce any more useful documents and therefore I do not see the prospect of people on this site being able to come up with technical defences without having sight of relevant text produced either through your fingers or a scanner.

 

x20

[Guy]

Thanks anyway.

 

I cannot post details of a default as i do not have one to hand - i probably had one several years ago when this debt became unmanageable but my filing system was non existant in those days and i like many others on this site firmly believed in the head in sand attitude to debt management.

 

Future debt and bank charges will be handled better thanks to this site but as far as this is concerned i am at least in no worse position.

 

I will waste no further time and money on this particular case and chalk it up to experience.

 

guy

[surfaceagentx20]

Guy,

Do the PoC mention the DN? If so then a CPR 31.14 request would be handy. If not, try a request under CPR 31.12, though of course there's no accounting for what the DN might say.

 

x20

[Guy]

The POC only mention the agreement.

[mich7k]

just subscribing why dont you take a photo of your documents and upload them? just a thought wishing you well

[The GodMother]

the problem we have found with the photos as not everything can be shown.

[Guy]

This topic was closed on 10 March 2019.

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