Arrow Global MBNA debt- **1st round - WON** **Seconds out! Round 2!!!**

[I've got no money]

MBNA "assigned" a credit card to Arrow Gllobal - they issued proceedings I filed a holding defence. They served me with a copy of the Application - although it is headed "Agreement", signed by me and not by them, a set of terms and conditions - that are not the same as the ones in existence in Jan 2002 when the application was signed. They also sent a further copy of a "notice of assignment" - which doesn't contain the date of the assignment. They have refused to disclose the assignment and before I had a chance to apply for an order have applied to strike out my defence. I've got to draft a skeleton argument tomorrow and serve it on Monday. I'm OK with the assignment disclosure points BUT I'm not so good on enforceable agreements has anybody got any suggestions or can they point me to any helpful threads.

 

Thanks

 

IGNM

Edited March 28, 2009 by I've got no money
Spelling mistake

[broken arrow]

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

[I've got no money]

Thanks for that Broken Arrow - incidentally the Solicitors are an outfit called Mortimer Clarke - anybody know anything about them

[postggj]

ive been helping out a pal on this lot also

 

cca sent to marlin

marlin wrote back saying get lost

then n1

i put in holding defence for him

 

assignment they did themselves

default notice is theres also

ignored cpr request

 

mortimer clark are **** bags and easy to deal with

 

just play with them for a bit

 

keep an eye on this thread

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/177131-marlin-rankin-now-court.html

[I've got no money]

Well I've received their skeleton argument - it isn't one - they've simply filed a witness statement and called it a skeleton argument- this hearing is going to be fun...I'm actually going to rather enjoy. I can feel a costs order coming on

Edited March 31, 2009 by I've got no money
typo

[I've got no money]

I've drafted an amended defence, it still is only a draft. I've based it on the documents that have been disclosed to date. Does anybody have any comments or suggestions for anything else that I could usefully add to it. Thanks IGNM

 

COUNTY COURT CLAIM NO:

On Transfer from the

NORTHAMPTON COUNTY COURT

 

BETWEEN

 

 

ARROW GLOBAL LLC

 

 

CLAIMANT

 

 

And

 

 

 

IGNM

 

 

DEFENDANT

 

 

 

 

 

Amended DEFENCE pursuant to Order dated

 

 

 

 

] The Defendant admits that he signed a document provided by MBNA Europe Bank Limited. It is Not admitted that the Defendant signed an agreement with MBNA Europe Bank Limited. The Precise terms and date of any such alleged agreement are not admitted. The Claimant is put to strict proof as to the date and terms of such agreement.

 

2. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974. It is denied that the Agreement is enforceable within the terms of the Act in that the Defendant avers that the aforesaid alleged agreement does not contain the Statutory Particulars as to payment, rate of interest and calculation of credit limit. It is further averred that the alleged agreement is defective in that it is not executed by or upon behalf of MBNA Europe Bank Limited.

 

3. It is not admitted that the aforesaid alleged agreement was lawfully assigned to the Claimant. The Claimant is put to strict proof that such a Lawful Assignment took place.

 

4. If, which is not admitted, a lawful assignment to the Claimant did occur it is denied that the notice required by the Law of Property Act was served upon the Defendant. It is averred that the notice upon which the Claimant relies was defective in that the sums referred to by the said notice as being owing under the alleged agreement were inaccurate thereby rendering the whole notice a invalid.

 

5. Further and in the alternative if, which is not admitted, an enforceable agreement is in existence it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

6. The Defendant is not in possession of a Default Notice. It is not admitted that the Defendant was served with a Default Notice pursuant to the Consumer Credit Act 1974. The Claimant is put to strict proof as to the service and content of any Default Notice

 

7. Further it is denied that both the alleged contractual interest and the alleged contractual account charges which have been claimed are lawfully owing in that it is averred that not only is there no contractual basis for the sums claimed but also that the sums claimed are in any event unfair and in breach of the general law.

 

8. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all.

 

Counterclaim

 

1. The Defendant repeats the defence herein

 

2The Defendant seeks a declaration from the Court that the aforesaid agreement is unenforceable in that it does not contain the statutory particulars and is not properly executed.

 

 

Statement of Truth

I believe that the facts stated in this amended defence are true.

I am the Defendant.

 

 

Signed

 

Amended this day of 2009

Edited April 30, 2009 by I've got no money
remove formatting

[shakespeare62]

Any news ?

[postggj]

ave you had back things like default notice etc

[I've got no money]

I haven't had the DN but they've given me a copy of the document I signed, they've given me a copy of a Notice of Assignment but NOT the actual deed, they've given me two T & Cs - neither of which appears to be the original, they've given me some statements but the first one has an opening balance of over 4K...

 

There is still quite a bit missing

 

I now have a hearing date for the application

 

I've also redrafted my amended defence and have filed it together with my skeleton argument and an authorities bundle

[postggj]

you need to put in the defence about not receiving the default notice

 

if they dont have one or its crap and as legal action has begun

 

happy days

[I've got no money]

Thanks for that - I knew there was something I'd forgotten - I'll put that in - I've also amended it to include an application for a declaration that the alleged agreement is unenforceable

[shakespeare62]

I'm not so good on enforceable agreements has anybody got any suggestions or can they point me to any helpful threads.

IGNM

 

There is a treatise here on enforceable agreements - In fact I'd say points 24 to 29 are "straight from the horses mouth"...feel free to pick out anything useful :-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/191784-shakespeare62-nastybank.html#post2072108

Edited April 16, 2009 by shakespeare62

[I've got no money]

There is a treatise here on enforceable agreements - In fact I'd say points 24 to 29 are "straight from the horses mouth"...feel free to pick out anything useful :-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/191784-shakespeare62-nastybank.html#post2072108

 

 

Thanks for that - it's given me all the law

 

I'm gonna print out all the cases for the hearing in May

 

Excellent

Edited April 17, 2009 by I've got no money

[I've got no money]

My Skerleton for the strike out hearing - anybody got any suggestions/comments - anything I've missed

 

IN THE CLAIM NO:

XXXXXX COUNTY COURT

On Transfer from the

NORTHAMPTON COUNTY COURT

 

BETWEEN

 

 

XXXXXXXX

 

 

CLAIMANT

 

 

And

 

 

 

 

 

XXXXXXXX

 

 

DEFENDANT

 

 

 

 

AMENDEDSkeleton Argument in Reply to the Claimants Application to Strike Out the Defence

 

 

 

1. Permission is Sought to amend the Defence in accordance with the draft amended defence attached hereto.

2. The original Defence was originally filed on the basis that the defendant did not have sufficient information to form a proper view as to whether the Defendant was indebted to the claimant as alleged or at all. The Defendant therefore put the Claimant to strict proof of the claim[

3. The Claimant has provided the Defendant with some documentation which the Claimant appears to believe establishes an unanswerable claim and that consequently that the test in CPR 3.4(2)(a) is satisfied.

4. The Defendant does not accept that this threshold has been reached and submits that in order for this to occur that the Claimant must prove its’ case on the basis of the evidence that it has served upon the Defendant.

5. It is submitted that this case involves complex matters of consumer credit law and is therefore not appropriate for an application to strike out the defence.

6. This case relates to an agreement which the Defendant asserts was entered into on the XXXXXXX with XXXXXX . That agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act ). The Defendant further asserts that the Benefit of the agreement was assigned to it by XXXXX.

7. In order to prove its’ claim the Claimant must establish a number of matters. Firstly that there was an original agreement between the Defendant and XXXX, secondly that such an agreement complied with the requirements of The Act (and all consequential regulations made thereunder) both at the date of the original agreement and at all times thereafter. Thirdly it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fourthly that proper notice of any such assignment was given to the Defendant (S136 (1) Law of Property Act 1925). Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all times thereafter.

8. It is submitted that it is the obligation of the Claimant to prove all of the matters referred to above.

9. The Defendant submits that the Claimant has failed to satisfy all of the matters referred to at paragraph six above.

10. The Claimant has failed to produce a copy of the original agreement. It has produced a document headed “ Credit Agreement” which in the course of its’ text refers to it being “an agreement” however it is only signed by the Defendant, there is no evidence of any agreement by XXXX and it refers to “this or any future application”. It cannot both be an application and an agreement. Under the terms of the contra proferentum rule any ambiguity should be construed against the party that seeks to rely upon it. Here the document was not drafted by the defendant and it is the Claimant who seeks to rely upon it as being an agreement. Consequently it is submitted that the document should be construed as . not being an agreement.

11. In such eventuality the absence of a written agreement is fatal and consequently as the alleged agreement was entered into before the 6th April 2007 the terms of S127 (3) Consumer Credit Act 1974) apply and render it unenforceable.

[12. Further and in any event if the document produced by the Claimant is an Agreement it is further rendered unenforceable, by want of compliance with section 61(1)(a) of the Consumer Credit Act in that it must be signed by both the debtor and the creditor and that it must contain all of the “Prescribed terms”. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest. Pursuant to S127(3) Consumer Credit Act a failure to comply with S61(1)(a) and the prescribed terms requirements renders any agreement unenforceable.

13. If, which is denied, the document signed by the Defendant was the agreement The Defendant was avers that he was not provided with a copy it in accordance with S62 Consumer Credit Act 1974 either at the point of signature or at any time thereafter.

14. Further and in any event there has been a failure to comply with the terms of Section 85 (1) of the Act in that no additional copy of any executed agreements or other documents was ever provided to the defendant thereby rendering the alleged agreement unenforceable

15. Before proceedings may be commenced in respect of a regulated agreement a Default Notice containing prescribed information must first be served upon the Defendant. The Defendant has never received such a notice and puts the claimant to proof as to the service and content of any alleged notice.

16. If, which is not admitted, there was an agreement, enforceable or otherwise, in existence the Claimant has not proved that there has been a lawful assignment.

17. The Defendant does not admit that a lawful assignment has taken place. The Defendant has requested on two separate occasions, the XXXXXand by a letter XXXX for disclosure, pursuant to the CPR 31(14)(1)(a) of the alleged assignment on the basis that it is a document referred to in a claim form etc. The Defendant assets that he is entitled to inspect the alleged assignment to satisfy himself that the assignment is valid. The Claimant has responded by asserting that the Defendant has received notice of the assignment under s136 Law of Property Act and that the Defendant is not entitled to anything else.

18. The Defendant avers that the Claimant has misunderstood the Law. It is submitted that all that Section 136 LPA 1925 actually means is that for “an absolute assignment by writing under the hand of the assignor” to be valid that notice of it must be given of it to the debtor. It is submitted that the mere fact of giving a notice does not create an assignment and that there must be an actual assignment in existence. Further the operation of S136 LPA 1925 does not have any effect on the disclosure requirements under the Civil Procedure Rules. It is the Assignment, not the Section 136 notice, under which the Claimant derives title to bring the claim and as such should be disclosed.

19. The overriding objective in CPR 1.1(2) requires the court to, as far as possible, place the parties on an equal footing. The fact that the Claimants have in their possession a document which is determinative of one the major issues as between the parties should in my submission require disclosure to enable the Defendant to form a view as to whether there has been a lawful assignment. It is with respect the position that not only do the interests of justice require disclosure but that the Claimant cannot prove its case without producing the alleged assignment to the Defendant.

20. It is further submitted that, in any event, the Defendant is entitled to, as a matter of law, be provided with a copy of the alleged assignment (Van Lynn Developments v Pelias Construction CO LTD 1968 [3] All ER 824)

21. It is accepted that the Defendant has been provided with an undated letter on MBNA notepaper which refers to an assignment to XXXXX. Whether that notice of assignment is valid or not can only be determined by reference to the original assignment document which has not yet been disclosed.

22. The Claimant has also disclosed copy statements however these statements have an opening balance of £XXXX. They do not show how that earlier amount has been calculated. Further the statements show “Late fees”, “Overlimit fees” for which there would appear to be no contractual basis. Consequently those fees are unlawful. Further the Defendant has no means of ascertaining whether the earlier sums validly accrued.

23. In any event the Statements also show an APR of 24.9%. There is no evidence that if there was an enforceable agreement, which is not admitted, it was contractually permissible to charge these sums.

24. It is accepted that for a Notice of Assignment to be valid it need not contain the date of an assignment or indeed the amount of any debt. However if those matters are contained in the notice of assignment it is submitted that, for the notice to be valid, they should be accurate. (W F Harrison & Co LTD v Burke 1956 [2] All ER 169)

25. The Purported notice contains in excess of £XXXworth of unlawful charges and consequently is invalid as the sum it claims is greater than the contractual entitlement it therefore does not accurately reflect the amounts which may have been contractually outstanding.

26. For the reasons outlined above the Court is invited to dismiss the application to strike out the defence and to order that the Claimant pay the Defendants Costs.

27. In the event that the Court determines that there is an agreement in existence the Defendant seeks a declaration pursuant to S142 (1)(b) Consumer Credit Act 1974 that, in accordance with SS127 (3) and 61(1) that the aforesaid agreement is unenforceable

 

 

I believe that the facts stated in this skeleton argument are true

 

Signed:

 

Defendant

 

Signed and Re – dated

Edited April 19, 2009 by I've got no money

[reggie76]

Subbing

[Spamalot]

subbing...have similar case http://www.consumeractiongroup.co.uk/forum/legal-issues/192275-ccj-interest-debt.html

[Pank]

subbing, the defence is great and I could use most of this for my defence as they are very very simmilar.

 

Good Luck

[citizenB]

Subbing for interest and reference:)

[I've got no money]

Am I missing something - I've had a skeleton from the other side today replying to my skeleton...

 

I said that "agreement" unenforceable because didn't contain prescribed terms (I referred to scheule 6 and even attached a copy) in that terms as to "repayment, credit limit and rate of interest" were missing.

 

Their skeleton in reply says that it was running acount credit under s10 (a) and that the provisions that apply to fixed sum loan agreements do not apply...I hadn't said that they did.

 

Admittedly I hadn't expressly referred to paragraphs 3, 4 and 5 of schedule 6 but I had attached them...

 

Interestingly they haven't mentioned Rankine - I'm half expecting to get there next week and them to try and ambush me with it...

 

On the "agreement" at the top left hand corner - outside of the box is a signature - there is nothing to say what it is or why its' there - they claim that is the signature by MBNA

[supasnooper]

Don't suppose they have added a collection charge and claiming s69 interest on the POC as well are they ?

[I've got no money]

Don't suppose they have added a collection charge and claiming s69 interest on the POC as well are they ?

 

I can't find the summons - I filed a holding defence and put it somewhere "safe" and I haven't seen it since...

[I've got no money]

I've just found it...

 

There is no collection charge BUT

"interest at the rate pursuant to the agreement namely £xxxx and continuing until judgment at a daily rate of 2.81 until judgment or sooner payment or in the alternative pursuant to s69 of the county courts act 1984 . Also interest at the rate pursuant to the agreement from Judgment date until payment"

[r&b]

12. Further and in any event if the document produced by the Claimant is an Agreement it is further rendered unenforceable, by want of compliance with section 61(1)(a) of the Consumer Credit Act in that it must be signed by both the debtor and the creditor and that it must contain all of the “Prescribed terms”. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest. Pursuant to S127(3) Consumer Credit Act a failure to comply with S61(1)(a) and the prescribed terms requirements renders any agreement unenforceable.

 

surely taken as a whole and not selectively, that nails down what ur talking about?

wot abt Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

"33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated."

 

he doesnt say which bit either? lol

[I've got no money]

surely taken as a whole and not selectively, that nails down what ur talking about?

wot abt Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

"33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated."

 

he doesnt say which bit either? lol

 

Precisely - I don't understand their argument...part of me thinks that its' a diversionary tactic - and that they hope that, as they haven't raised Rankine that I won't prepare for it BUT they are wrong...

[supasnooper]

I've just found it...

 

There is no collection charge BUT

"interest at the rate pursuant to the agreement namely £xxxx and continuing until judgment at a daily rate of 2.81 until judgment or sooner payment or in the alternative pursuant to s69 of the county courts act 1984 . Also interest at the rate pursuant to the agreement from Judgment date until payment"

 

You'll need to oppose the claiming of s69 interest as claimed in their POC -

 

In opposition, I would point the Judge to the County Courts (Interest on Judgment Debts) Order 1991 which clearly states at Paragraph 2 (3)(a) -

Interest shall not be payable under this Order where the relevant judgment is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974.

Edited April 28, 2009 by supasnooper
spelling