HELP: Proceedings issued against me

[MondeoST24]

Looks to be a microfiche copy tho so they may not have the original. S.

 

Is this significant? Also I dont see there signature?

 

Thanks

[the_shadow]

Is this significant? Also I dont see there signature?

 

Thanks

 

In bigger courts yes, rules of evidence and all that

 

Basically CPR says all claims in relation to written agreements require a real copy of said agreement to be attached to the claim and the originals to be brought to court for the hearing. HOWEVER its down to the judge whether he enforces this.

 

As to the signature, its the stamp at the top, jonathon somebody with a date.

 

S.

[MondeoST24]

Here is the DN

 

http://77.240.11.73/dn.jpg

 

All I can see is that it refers to paragraph 8 which doesn't appear on the agreement. It does however appear on a set of terms and conditions which were sent with the agreement.

[the_shadow]

Here is the DN

 

http://77.240.11.73/dn.jpg

 

All I can see is that it refers to paragraph 8 which doesn't appear on the agreement. It does however appear on a set of terms and conditions which were sent with the agreement.

 

Looks kosher I'm afraid, as far as I can see all the prescribed text are there, so you'll need to rely on the total being inaccurate due to unfair charges, add these up on a spreadsheet to see what % of the total they are.

 

S.

[MondeoST24]

I'm tending to agree with you.

 

Only problem is i'll have to wait for the SAR to add up charges, but its likely I would need to submit a defence before then.

[GhostDebt]

I would ask for the statements in the CPR request as well, that way you would get all the documents in time. Also as they are unlikely to comply with your request, you could get the court to push for them later on.

[pompeyfaith]

is there any ppi or charges on the card ? You can counterclaim if there is

[MondeoST24]

Like the title of another thread SNOOKERED

 

Okay, I need to fill in my admission form to send back to court, but the problem is part of the amount claimed contains charges and associated interest. I can't quantify this until I recieve my subject access request data.

 

How do I do this? Should I admit part of the claim, say 50% and then state in my defence the reason why I am unable to state an exact amount but this will be provided later?

 

Also do I counterclaim for the charges or simply reduce the amount admitted.

 

Any help appreciated, its the first N1 i've had to do an admission on.

 

I'm also concerned about costs, is there a fixed ceiling on costs on the fast track or can they literally charge what they want?

[GhostDebt]

Evening Mondeo.

 

My opinion only, but the way I see it is:

If you admit the claim in full you get a CCJ.

If you admit part of the claim you get a CCJ.

If you defend all of the claim you may or may not get a CCJ depending on the defence and the judge/court on the day and may be liable for the Claimants costs.

 

If you believe that there are unfair charges or PPI involved and wish to counterclaim for these then you may as well defend in full and counterclaim accordingly.

 

All depends on if you are willing to take the risk / fight to stop them getting a CCJ against you.

 

Have a read through some of the other MBNA threads and see if there are other people in similar positions and ask how they got on.

 

Regards

[ihpj]

Like the title of another thread SNOOKERED

 

Any help appreciated, its the first N1 i've had to do an admission on.

 

I'm also concerned about costs, is there a fixed ceiling on costs on the fast track or can they literally charge what they want?

 

Hi mate, I currently hold that dubious honour I fully understand your position/predicament as I might be following you shortly.

 

I would invite you to visit my thread and read the last couple of posts in relation to the agreement itself and follow the embedded links to read commentary by PT2537.

 

One thing I would say is that I noticed in your 'agreement' they refer to 'additional' T+Cs. In mine they regularly refer to these ancillary terms, but haven't actually sent them to me either. I am sure as they are referred to, then they should be provided to you as part of your CCA request (I stand to be corrected!).

 

I also have issues around the errant reference to 'Condition 11' and a discrepancy around date varying between both sides of what they have sent me. So perhaps a little more to go than you?

 

I too would like some answers but will SUB your thread with interest. Keep strong!

[MondeoST24]

Thanks, does anyone know the answer to this?

 

is there a fixed ceiling on costs on the fast track or can they literally charge what they want?

[MondeoST24]

Anyone?

[the_shadow]

Mondeo, this may help

 

PART 46 - FAST TRACK TRIAL COSTS - Ministry of Justice

 

 

S.

[MondeoST24]

Okay great thanks.

 

I need to submit a defence/counterclaim for this tomorrow and any help would be appreciated. These are my arguments, very rough.

 

1. The Claimant has failed to supply a legible credit agreement, in the covering letter sent with the alleged agreement the Claimant states "we appreciate this is not the best copy but it is the only copy we can provide" Due to the poor copy the Defendant is unable to determine whether the credit agreement is valid and contains the required prescribed terms as per xxx

 

2. On x the Defendant sent to the Claimant a Subject Access Request under the Data Protection Act. To date the Claimant has not cashed the £10.00 cheque which accompanied the request and it is the Defendants belief that the claimant does not intend to fulfill the request. The data requested would allow the Defendant to file a more complete defence.

 

3. On x a default notice was issued, the Defendant contends that this was ineffective as the default balance contains unlawful charges

 

Thanks

[GhostDebt]

Helllo Mondeo

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/184852-c-l-finance-ge.html

 

The above is my ongoing fast track case,

may or may not be useful for some info.

 

Regards.

[MondeoST24]

Thanks a lot GD, i'll follow your thread with interest. I hope you dont mind me plagiarizing your amended defence, a lot of it fits my situation. Could someone take a quick look at it and let me know if you spot any problems.

 

Thanks again

 

 

DEFENCE AND COUNTERCLAIM

 

1.

I am the defendant in this case and I am a Litigant in Person.

 

2.

Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimant's Particulars of Claim.

 

3.

The Claimant's 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. Also, they do not comply or even attempt to comply with CPR part 16. For example the particulars do not include an account number.

 

4.

On x The Defendant sent to the Claimant a Subject Access Request pursuant to the Data Protection Act 1998, this personal data 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, a transcript of all transactions, including charges, fees, interest and alleged repayments by the Defendant. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice. To date the cheque for £10.00 in respect of the Subject Access Request fee has not been drawn upon and it is the Defendants belief that the Claimant does not intend to comply with the request.

 

5.

It is therefore averred that the claimant is trying to frustrate matters in refusing to disclose the documents requested and the claimant is ignoring the overriding objective. It is submitted that the claimant taking this course of action places me at a clear disadvantage and there is no apparent reason why the claimant would seek to withhold this documentation from me. As a consequence of the claimant ignoring my request I am unable to file a more complete defence.

 

6.

To date the Claimant has failed to provide a full set of statements for the alleged account and as a result it is not possible for me to determine the extent to which the amount claimed has been misstated. Also it is unclear how the Claimant has calculated the amount claimed without this information. The subject access request should contain statements from inception of alleged agreement to date. It is not unreasonable for an organisation of the claimants size to expect them to retain this documentation in accordance with their legal obligations for document retention in accordance with:

Sections 5 & 42 of the Limitation Act 1980

Section 222(5) of the Companies Act 1985

Schedule 18, Paragraph 21 to 22 of the Finance Act 1998.

 

7.

The amount detailed in the Claimant’s claim, includes penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Terms in Consumer Contracts Regulations 1999.

 

8.

Further, it is averred that during the period in which the alleged account was operating the claimant debited numerous charges to the Account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The defendant understands that the claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant or original creditor.

 

The defendant contends that:

 

a) The charges debited to the Account are punitive in nature; are not a genuine pre-estimate of costs incurred by the claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the defendant; and are not intended to represent or relate to any alleged actual loss, but instead unduly enrich the Claimant which exercises the contractual term in respect of such charges with a view to profit.

 

b) The contractual provision that permits the Claimant to levy such charges is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the common law.

 

9.

Accordingly I put the Claimant to strict proof that every charge and collection charge made to the account was valid and lawful.

 

 

10.

The Claimant, possessing no legal right to claim monies allegedly owed, has acted unlawfully in issuing a Default Notice and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Furthermore, the Defendant avers, that the Default Notice is wholly unenforceable, given that the amount claimed contains penalty charges, which are unlawful at Common Law under The Unfair Terms in Consumer Contracts Regulations 1999.

 

16.

It is neither admitted or 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. I note that without service of a default notice under s87 (1) Consumer Credit Act 1974 the claimant would not have a right to demand repayment of any sums under an agreement or to terminate an agreement

 

17.

I put the claimant to strict proof that any default notice sent to me was valid. I note 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)

 

19.

I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence

 

20.

The breach referred to on the Default notice relates to arrears on the alleged account and since these have been grossly misstated by the Claimant demanding repayment of the balance in full and not the actual arrears on the alleged account this matter cannot be dispensed with as a De Minimus issue and again the default notice is rendered invalid as a consequence.

 

21.

I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

 

22.

I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

 

 

23.

Unless proved otherwise the claimant has failed to adduce hearsay evidence in the correct procedure and the document purporting to be a credit agreement is inadmissible as evidence in this case.

 

 

24.

The claimant has not complied with the requirements to issue a valid default notice, and the claimant should not be bringing this action before the court.

Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal refers.

 

25.

In the circumstances the Claimant has no substantiated particulars of claim and no entitlement to claim any of the relief now sought by its claim and it is respectfully suggested that the claim be struck out pursuant to CPR Part 16 Paragraph 7.3(1) and CPR 3.4(2) and judgement and costs/counterclaim be awarded in favour of the defendant.

 

26.

The Claimant’s claim to be entitled to £*, to interest or to any other sum is denied.

 

 

 

 

• Counterclaim
  

 

27.

The defendant counterclaims costs to date, to be summarily assessed in accordance with Practice Direction 48.6 and at the appropriate rate.

 

28.

The defendant counterclaims for damages in relation to the anxiety the harassment of the Claimant has caused the Defendant in accordance with Section 40 of the Administration of Justice Act 1970.

The court should summarily assess an appropriate level of award for damages.

 

29.

The defendant counterclaims for damages to his credit worthiness by the claimants actions in issuing an invalid default notice and recording inaccurate information with the Credit reference agencies whilst having terminated the account in a manner which is an unlawful rescission of contract.

For clarification of the extent to which damages can be awarded the court should make reference to:

Kpohraror v Woolwich Building Society 1996 4All ER 119

King v British Linen & Co (1899) 1F 928

Wilson v United Counties Bank Limited. [1920] AC 102

Richard Durkin v DSG Retail Limited and HFC Bank Plc

and summarily assess an appropriate level of award for damages.

 

 

 

 

• Statement of Truth
  

 

I *, The Defendant, believe the above statement to be true and factual.

[GhostDebt]

Hello Mondeo,

 

Sorry for the late posting.

 

---

Did you send a CPR request?

If you did you should make reference to this enclosing a copy of the letter and their response if any.

---

In paragraph 6 change to

Section 5 of the Limitation Act 1980

and also add

Money Laundering Regulations

---

Paragraph 10,

Is the claimant the Original Creditor?

If so, you might need to change the wording on this.

---

Further comments,

Correct your paragraph numbers.

Identify each page of the defence with the claim number and date it was written, that way if/when you change it in the future you can ensure each party is using the current version.

 

Apart from that, best of luck

 

Regards

[GhostDebt]

Hello Mondeo

Did you manage to get the defence submitted?

[MondeoST24]

I'm just working on it now to submit to the court tomorrow.

 

Thanks

[MondeoST24]

The court have wrote to me with an AQ - but they also want a fee of £1530 to issue the counterclaim - they are trying to charge the maximum for claims £300,000 or unspecified amount.

 

What can I do about this, my counterclaim was never going to exceed the value of MBNA's claim (circa £5k)

 

Thanks

[GhostDebt]

I would contact the court in the first instance to explain to them the limit you were considering on the counterclaim and see what they suggest.

 

This didn't happen to me, so hopefully you will get some additional help.

 

When does the AQ need to be submitted by?

 

Regards