1st Credit Claimform - MBNA debt i never had - **DISCONTINUED**

[42man]

Thanks for that Paul.....much appreciated, is it just a case of saying that the defendant has no case to answer as they have never ever had an account with MBNA ?

[AnimalMagic]

Nothing in the post this morning either. Methinks they are simply going to ignore the request. I think I will send another request, but in the meantime submit the defence based on no information.

 

Trying to get my head around the defences - thought I was getting well versed with legalese, but I am not

[AnimalMagic]

Looking at their POC there is little I can respond to. Is there any point in arguing anything under the CCA when I know nothing about the account?

 

Here's my defence which I intend to submit shortly. Any comments?

 

1. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimant's Particulars of Claim and put the Claimant to strict proof thereof.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The Claimant's Particulars of Claim 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 the Defendant wishes to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the Claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the Claimant’s claim.

 

b) A copy of the purported written agreement that the Claimant cites 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 form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

d) The Defendant has no knowledge of ever having received any money from, nor having signed any agreement with, MBNA Europe Bank Ltd or 1st Credit (Finance) Ltd.

 

4. Consequently, the Defendant denies all allegations on the Particulars of Claim and does not know what case the Defendant has to meet.

 

5. The Defendant puts the Claimant to strict proof that the Defendant is liable for this alledged debt and that it is not statute barred by virtue of section 5 of the Limitation Act 1980, the Defendant requires the Claimant to produce evidence that any such payments towards this alleged debt have been made in the last six years

 

6. Further to the case, on 24 September 2008 the Defendant requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the Claimant. The information requested amounted to copies of the Credit Agreement referred to in the Particulars of Claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by the Defendant and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the Claimant a legitimate right of action.

 

7. To Date the Claimant has ignored the Defendant's request under the CPR and the Defendant has not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested

 

8. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules the Defendant has not yet had the opportunity to assess if the documentation the Claimant claims to be relying upon to bring this action even contains the prescribed terms required in 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) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

 

1. Number of repayments;

 

2. Amount of repayments;

 

3. Frequency and timing of repayments;

 

4. Dates of repayments;

 

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

9. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 7 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

10. The Defendant refers to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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.”

 

11. Notwithstanding points 8 and 9, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

12. The Claimant is therefore put to strict proof that such a compliant document exists

 

13. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

14. Notwithstanding point 11, the Defendant puts the Claimant to strict proof that any default notice sent to the Defendant was valid. The Defendant notes that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

15. 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 would also give rise to a potential counterclaim for damages where damage occurs to the Defendant's credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

16. Without Disclosure of the relevant requested documentation the Defendant is unable to assess if the Defendant is indeed liable to the Claimant, nor is the Defendant able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

17. In view of the matters pleaded above, the Defendant respectfully requests that the court gives consideration to whether the Claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

18. Alternatively, the Defendant respectfully requests a stay in proceedings until such time as the Claimant complies with the requests outlined in paragraph 6 above or until the court orders its compliance with the same. The Defendant will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend the Defendant's statement of case accordingly.

 

Is it worth sending a follow up letter repeating the CPR18 request?

Edited October 15, 2008 by AnimalMagic
Edited defence

[AnimalMagic]

Any comments on the defence and is it worth sending a follow up letter repeating the CPR18 request?

[AnimalMagic]

So, no responses, guess it must be perfect eh?

[palomino]

So, no responses, guess it must be perfect eh?

 

Possibly - but, in any case, beyond the capability of anyone here to improve it

[AnimalMagic]

OK, I'll submit it then.

[AnimalMagic]

Attempted to submit, but the online system only allows 8000 chars and 122 lines! How absurd...

[42man]

If it doesn't accept it, you'll have to send it by recorded del to opposing solicitors and the court....

[surfaceagentx20]

I haven't counted the number of characters but figure it ducks under 8000, so the below draft might suit your purposes.

 

Draft / Defence

 

1 The Defendant denies ever having been indebted to MBNA Europe Bank Limited (MBNA) and denies credit has ever been advanced to him/her by MBNA.

 

2 The Defendant repeats paragraph 1 of his/her Defence and denies a debt was and/or was capable of assignment by MBNA to the Claimant.

 

3 The Claimant's claim to be entitled to £3877.96 for debt, to statutory interest or to any monetary or other relief of any kind is denied.

 

I BELIEVE THE FACTS SET OUT IN THIS DEFENCE ARE TRUE

 

Signed:

 

Dated:

 

x20

[AnimalMagic]

Thanks x20,

 

That's certainly succinct

 

I've submitted a modified version adding the information that I have previously asked for 'proof of debt', 1st Credit acknowledged the letter, but no proof was forthcoming. And that I have asked for information under CPR 18, but with no response.

 

I have also asked the court to consider stricking out the claim.

[AnimalMagic]

Well it's been 28 days since I sent the CPR letter and no response as of this morning's post... Is this a good sign?

[AnimalMagic]

Got an acknowledgement from the court this morning that my defence has been received and the claimant has 28 days in which to decide to proceed. Absolutely nothing received from 1st Credit.

[42man]

I can't see them continuing this to be honest AM......!!! keep us posted...

[42man]

Any update on this AM ?

[AnimalMagic]

No, nothing has been forthcoming. I sent the CPR letter on 24 September asking for a response within 2 weeks and I have had nothing, not even an acknowledgement. I submitted the defence on 18 Oct and a received an acknowledgement from the court dated 20 Oct (from memory), but have heard nothing further.

[42man]

I think it might be worth requesting a strikeout AM....

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/134001-suggested-letter-where-claimant.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/136843-capquest-county-court-claim.html

[AnimalMagic]

Thanks 42man

 

I'm going to deal with this over the weekend, as you say, asking the court to strikeout the claim. I think they have had ample time...

 

It really is overdue for the government to deal with companies like 1st Credit

[AnimalMagic]

Well, I submitted a letter on 5 Jan to the court asking for the case to be struck out.

 

Today I received a letter from LCS Solicitors claiming they sent a reply to my DPR request and they enclosed a copy dated 15 Oct. No agreement and the only attachment is a letter on their own letterhead dated Jan 2005 which they purport to be an assignment of debt from MBNA.

 

They state in their letter 'We take the view that you are able to file and serve your defence and we invite you to file and serve it'

 

I assume I should await any response from the courts before doing anything further.

[bazaar]

Hi Animal,

I'd just keep tabs on the court side if I were you.

They obviously want a peek at your defense first so they can plan for it.

Its up to the court to have you submit a defense not these cretins.

Keep to the courts timing and you should be fine.

[AnimalMagic]

Received another letter today with an illegible copy of an application for credit to a company called Chase Manhattan which appears to date from the 1980s. I have not dealt with this company for many years (well over the statutes of limitations) and AFAIK there was never any debt left outstanding.

 

They have also enclosed a 'final statement' from MBNA 'confirming the charge off adjustment'.

 

There is nothing to relate the Chase Manhattan 'agreement' with MBNA.

 

They state they will seek summary judgement without further notice if they do not 'receive my proposals' by 9th Feb 2009...

[bazaar]

Your proposals are quite clear I think.

Give you proof of debt so you may negotiate or not.

You can counter their SJ with your own that they produce the documents they will rely on in court.

[AnimalMagic]

I been searching unsuccessfully for a couple of things:

 

1. CPR rule regarding agreements being made available with the claim.

 

2. Rule of evidence stating that any document used as evidence must be legible.

 

I remember seeing both these recently (in last 3 months), but I have not been able to find them on this site or in the CPR rules. Can anyone remember the postings and give me a link?

[AnimalMagic]

I've compiled this response to send to the court. Any Comments?

I refer to my defence of this claim regarding an alleged debt to MBNA Europe Bank Limited (MBNA).

 

I have received no response from the court to my letter dated dd mmm yyyy, however I have received two letters from the Claimant.

 

The claimant has supplied an illegible document which they claim is an agreement between the Defendant and a company called Chase Manhattan. The other items remain unanswered and they state in their letter dated dd mmm yyyy ‘If we do not receive your proposals for payment by dd mmm yyyy, we have our client’s instructions to apply for summary judgement against you without further notice’. It would appear that this constitutes the sum total of their evidence.

 

The Defendant is puzzled as to how this alleged agreement, which they state is dated mmm yyyy, over 20 years ago, between the Defendant and Chase Manhattan relates to this claim The Claimant offers no evidence of any connection between Chase Manhattan and MBNA and the document is illegible so it is impossible to construe anything from this.

 

The Defendant denies he has had any contact or received any financial benefit from Chase Manhattan for perhaps 20 odd years. The Defendant denies any debt is owed to Chase Manhattan. The Defendant denies ever having received any default notice or notification of any breach of contract in any form, from Chase Manhattan.

 

It is unclear what the two other plain pieces of paper constitute. The Defendant is unable to relate these documents to the current claim or how they add anything to the claim.

 

In the second paragraph of the Claimant’s letter dated dd mmm yyyy a specific reference is made to an agreement with MBNA Cards (Cards and Loans), yet no such agreement has been supplied. The terms of this alleged agreement are unknown. Any breach of these unknown terms has not been established.

 

The Claimant has failed to provide any documentation whatsoever to demonstrate their right to sue.

 

The Defendant submits he has no case to answer and seeks Summary Judgement under CPR 24 on the basis that there are no reasonable grounds for bringing the claim.

I will be attaching the documents supplied with the letter.

[AnimalMagic]

Found one of them

CPR Practice Direction 16.

Paragraph 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).

Edited January 29, 2009 by AnimalMagic