MBNA/Optima Court action

[AndyOrch]

Still allows 18 days Summer which ever way they sent it

 

 

Andy

[summerbreeze]

Hi Andy

 

I was using this on which to base my reply but I value your opinion on my reasoning

 

Service of 2nd class mail is deemed 4 working days after posting and assuming it was posted on the 12th may so service would be 18th may

The 12th would be Tuesday

So Weds 13th , Thurs 14th , Fri 15th and Monday 18th would be the 4 working days ?

 

 

1. Interpretation Act 1978, Section 7

 

This states:-

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

[AndyOrch]

Hi Summer

 

I appreciate your points but unless the OP has retained the envelope and wrote on the the letter date recieved ( which all good Caggers do ) its all very here say and not something i would like to build a Defence around.

Most DJs would give the Claimant the benefit of the doubt in the above instance so far better to look for form and layout and of course whether or not the arrears contains unfair charges,which im sure you are aware would invalidate the DN.

 

Just my opinion

 

Regards

 

Andy

[MisterV]

Interesting comments, how do we check a DN for unfair charges?

 

You learn something new everyday on this forum and i realise how much help I need.

[MisterV]

Hi all,

 

Sent the CPR request and have had a letter back from xxxxx legal services saying that they cannot comply to my 7 day deadline as they have had to request the documents from their client. As soon as they have them they will send them.

 

Surely I need to advise the court of this delay and have the date changed. Is there a standard letter?

 

Do I have to acknowledge the letter they have sent?

 

 

Thanks

[pompeyfaith]

just a word of warning optima are becoming well known 4 abusing the process when it comes to producing docs in my case with them i requested in July 08 and got some of them in Dec 08 which was 1 mth after they got an SJ hearing so u need to be on the ball with them and keep to your timescales not theirs use the court to force them to supply if needs be

Edited July 5, 2009 by pompeyfaith

[MisterV]

Thanks for that, so should I give them a further deadline or just wait and see what they come up with?

 

Also, how to I tell the court what is happening?

[pompeyfaith]

Do not wait because the chances are you will wait too long, you need the documents A.S.A.P so you can go though them with a fine tooth comb.

 

I would be sending them a letter saying that there response is not good enough and that organisations as big as MBNA's and Optima Legals it is not unreasonable to expect those docs delivered within the time scales given.

 

And if you do not receive them within the next 14days you will get an order for you to produce from the court.

 

Regards

 

PF

[MisterV]

Surely the longer they take to produce the documents the less likelihood they have anything credible to present in court? , therefore isent that weakening any case and preventing it from continuing or reaching court?

[pompeyfaith]

Well that is the assumption I had in my case with MBNA/OPTIMA. but as I found out that does not always go in your favour.

 

Not having the docs in good time puts you at a disadvantage in that for one they WILL leave supplying docs as late as possible so you cannot fully prepare your defence.

 

As I said I applied for my docs in July 08 and did not receive them until December 08 in the mean time they got a summary judgement in November 08 and did not tell me this.

 

They even forged a DN to make it appear to the court that it complied so you would of thought on the above the judge would of struck out the case.

 

Not so i thought I had them bang to rights but she just took one look at and did not even compare it with the original and said clearly going by the statements you owe this money so i would suggest you bargin with them.

 

So all im saying here is you have to be on the ball 110% scrutinise every thing they send you and use in court including witness statements etc because they do not play by the rules.

[MisterV]

Thanks for that - do I have to tell the court they have failed to meet the deadline I set?

 

Shall I write back to Optima and give them a new deadline - say 14 days?

 

Sorry to ask dumb questions but this really is a steep learning curve.

[pompeyfaith]

it is indeed and im just giving u fore warning so u dont go though what i did

 

id give optima another 14 days and if they still do not comply inform court

 

by doing that it will show the court that u are being reasonable and will make the case stronger 4 u if u have to get an order 4 them to comply

 

ever letter u send use special delivery and get and hold tight the receipt this is so inportant to you as it proves your actions to court without doubt

 

MBNA and/or Optima will somewhere along the process c*** up so you need to follow CPR to the letter and use all laws and case law against them this i truly believe will show the court who is the better party

[MisterV]

Thanks Pompey, your help is invaluable will give them another 14 days.

[pompeyfaith]

pleasure PF

[MisterV]

Just read your thread pretty much through from start to finish PF - WOW

 

So many things to consider, what a journey you went through. Inspiring and exhausting at the same time. Take my hat off to you.

 

Need to think about all the implications for my own situation and then perhaps you could help me on a few points.

 

Need to lie down now lol

[pompeyfaith]

yes a big thread and all in all i dont think i did too bad after all they did not get the ccj bless them lol not yes i can guide u so u do not make the mistakes i did

 

as u saw in my thread optima do c*** up and it happens with cases a lot i have found too they even forge docs to get around this

[diddydicky]

personally i would not give in on the DN dates as easily as you haev been led to beleive,

 

if YOU SAY you received that DN on 18 or 9th May then you should state this in your claim and put them to strict proof of when they posted in and by what means

 

i do not agree that the court will automatically "take their side" bon this

 

the cca requires THE CREDITOR to cross all the t's and dot all the i's

 

it is for them to prove not for you to disprove

 

hope that helps

[MisterV]

PF - Would it be possible to send you a private message? Theres something id like to ask but maybe it would be better out of the public domain. (Its reasonably straightforward).

[pompeyfaith]

Hiya Mister V,

 

Yes please do.

 

PF

[pompeyfaith]

Right I gather the defence is needed for MCOL at Northampton.

 

If this is the case then this embarrassed defence will do as you will get a further chance to submit a full defence when the case is transferred to your local court.

 

Defence

 

 

I MisterV makes this statement as my defence to the claim brought by MBNA Europe Bank Ltd

 

1.The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR

 

2.No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon

 

3.Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit

 

4.Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

Next

 

The above is all you need to place in the defence.

 

You should write to the claimants solicitors as follows:-

 

' Herewith copy defence by way of service, the same having been filed with the court.

 

Please serve amended particulars of claim and plead yor clients case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement and Default Notice upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided'.

 

 

Yours Faithfully

 

Regards

 

PF

[MisterV]

Thanks PF, grateful as ever. lets see what this week brings.

[MisterV]

Received today, a copy of the default notice and a copy of the current terms and conditions and a promise to send the statements in due course.

[pompeyfaith]

Right do you have a copy of the agreement, if so post it up so we can have a look and see if we can pull it apart.

 

Scan and post up the terms and conditions also.

 

Remember to rub out personel data.

 

Regards

 

PF

[MisterV]

Will post up the DN and Terms & Conditions they have sent ASAP.

 

Would I still submit an embarrassed defence to the court as the CPR request is unfulfilled? (Needs to be in by Monday 20th July)

[pompeyfaith]

yup get that embarrassed defence in asap that will then give u more time to get your docs and put a full defence together

 

is this case still with Northampton court bulk centre or has it been transfered to your local court

 

im in and out this forum all day between jobs at home so keep posting here ok