County Court Claim received MBNA\Restons

[LB145]

duplicated posting

Edited July 13, 2010 by LB145

[LB145]

thoughts on this please - if I can get it right I will resubmit - it is long but please spare me a piece of your time. thx

Edited July 13, 2010 by LB145
HTML

[wycombe]

I'm not sure if you can re-post without all the 'Font' coding.

 

Presumably this was cut and paste from somewhere?

 

Try a cut and paste into Wordpad remove all the coding and then cut and paste back here again. Then delete the previous thread.

 

Hopefully then it will be easier to read and add comments to.

[LB145]

Thks Wycombe - HTML removed

 

My daughter has now been sent home ill from school - was so tempted to ask if she could stay to 3 as her mum has importnat things to do!

[wycombe]

Post deleted

Edited July 13, 2010 by wycombe
Deletion - posting is further down

[LB145]

Thx Wycombe

[wycombe]

Between us we'll knock this into shape. It may takes a few drafts and a fair bit of tweaking. Input and help from any other cagers about would be greatly appreciated.

 

I'll be back later - my wife is yelling at me to get my skates on!

[LB145]

Changed Third person to I - thx

Edited July 13, 2010 by LB145
Getting rid of the dead wood (lol)

[gh2008]

can I suggest attaching it as a word doc or whatever, then posters can modify and re-attach.

 

Keep scrolling down pages and pages and pages of the same thing (and not easily seeing where the edits are) is a little tiresome.

 

OR, just edit your previous posts and remove the WS from them.

[LB145]

Thanks Gh - the last thing I want to do at this stage is annoy fellow Caggers - sorry

[gh2008]

it was only a suggestion don't worry.

 

If you can stick a word (or anything) doc up I'll have a look tonight

 

Normally when I look at these things I cut and paste them into something to read them anyway and then paste back, but it's easier with a doc to start with as I can make any changes with tracking on and you can either accept or reject them with a mouse click.

[LB145]

Cant add an attachment - it will not attach word file

[gh2008]

In the 'advanced editor' if you just click reply, you need to then aclick go advanced. When you are in that click the paperclip, choose the file on your computer click upload, then close (down the bottom)

 

That should do it

[Dotty50]

Here you go LB, sorry I can't help with anything else!

LB's doc.doc

[wycombe]

Changed Third person to I - thx

 

In the County Court

Claim number

 

 

 

Between

MBNA Europe Bank Limited - Claimant

 

and

 

Mrs?????? - Defendant

 

 

AMENDED WITNESS STATEMENT OF

 

 

?????? age YEARS of

 

I AM THE DEFENDANT IN THIS ACTION

1. I, ?????? make this statement in response to the Summary Judgment Application filed by the Claimants, MBNA Bank Europe Ltd. The matters referred to in this statement are within my own knowledge, except where I have indicated otherwise.

 

My husband and I are self employed and in September 2008 financially immediately noticed the effects of the start of the "Credit Crunch Recession". As the Recession took its toll small businesses were greatly affected and our income was drastically reduced, some credit card companies raised interest rates to 34.9% and we took advice on the best way to deal with these debts between unsecured creditors. Upon taking advice was advised in the first instance to establish which creditors would have legally enforceable agreements. I prepared s78 CCA requests to all of my creditors- MBNA Bank Europe Ltd being one of these creditors to date they remain obstructive.

 

Suggest you ditch this paragarph and replace with "Around September 2008 my income was drastically reduced due to the effects of the economic recession and it became more and more difficult to maintain the minimum payments due to my creditors. Despite the Bank Rate being at a historic low some of my creditors hiked their interest rates to an unsustainable level and thus forced me to examine whether this was legal or not. In order to ascertain this I sent S78 requests to all my creditors including MBNA Europe Ltd.

 

2. Around April 2001 I was targeted with MBNA Credit Card Marketing material, the Pre Contractual Application Form was a marketing leaflet to entice balance transfers from other existing debtors. The Pre Contractual Application Form had the prefilled name of Mrs J ??????, this error of addressing to J ?????? and not L was due to the fact that I held a mail order catalogue account at that time where the error had occurred originally.

Ditch this paragraph

3. On 5th April 2009 I made a s78 request under the Consumer Credit Act ("The Act") (Exhibit L3) to the Claimant for a true copy of an executed credit card agreement, any document referred to in it and a signed statement of account. Where the Claimant has varied the terms of the original agreement he is also obliged to send a copy of the original terms and conditions as well as the current terms and conditions as amended.

 

4. In addition the Claimant was obliged under the Cancellation Notices and Copies of Documents Regulations 1983 (3) to provide copies of documents that were "easily legible".

 

5. The Claimant ignored the original request and this was followed up with a reminder letter dated 11th May that notified them the Account was in Dispute. The Claimant failed to comply or respond to letters reminding them of their obligations, 15th June 2009 I made a written Formal Request for Information CPR part 31.14 (Exhibit L1) and so I was advised (by who?) to stop making payments to them in order to obtain a response to my s78 request.

6. Despite not responding to my s78 request and notifying MBNA Bank Europe Limited that the account was in Serious Dispute MBNA passed my details to Global Vantedge (sp!), a debt collecting agency. Under the Consumer Credit Act 1974, whilst a creditor is in default of this request, it may not enforce, pursue or increase any alleged indebtedness until such time as it does comply. Quote where it states this in the CCA.

 

7. In the witness statement of Miss ??????, claimants solicitor (Paragraph 4) it states, reference to paragraph 22 on the Defendants defence "that their client has no record of ever receiving the request made pursuant to s78 Consumer Credit Act 1974" , MBNA Europe Bank have been corresponding with the Defendant on this matter since April 2008, proof of delivery to MBNA Europe Bank Limited by the Royal Mail and a typed letter of confirmation of this statement from the Royal Mail (Exhibit L10) confirms this.

8. On August 8th 2009 I received a package from MBNA Europe Bank Limited in response to my Formal Request for Information CPR part 31.14, the package consisted of photocopied papers including, a reconstructed "Pre Contractual Application Form (Exhibit L3) where Terms & Conditions had been added to the advert side of the alleged agreement , copy of Current Terms & Conditions, Communications Log (From 25.11.04-20.07.09), Additional Communications Log (From 14.04.03 – 05.04.2007), Transaction Log (Dated 02.03.03 – 02.07.2009).

9. In response to the Subject Access Request I wrote to MBNA Europe Limited on 8th August 2009 (Exhibit L5) stating that the contents are noted and that they are still in breach of supplying the documentation previously requested under s78 of the Consumer Credit Act 1974 and that a reconstructed document is not considered as acceptable, as a True Copy of any alleged executed agreement that they may hold.

10. In respect of the purported credit agreement supplied by the claimant (MBNA/1 L3) it is denied that it is a valid executed agreement and it is submitted that the document fails entirely to comply with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

11. Firstly, the heading of this document does not comply with section 2, paragraph 4 of the regulations that state:

 

"Subject to paragraphs (5) and paragraphs (9) below, the information, statements of the protection and remedies, signature and separate boxes which the regulation requires documents embodying regulated consumer credit agreements to contain, shall be set out in the order given by paragraphs (a) to (f) below under, where applicable, the headings specified below -

(a) the nature of the agreement as set out in paragraph 1 of Schedule 1 to these regulations."

 

Paragraph 1 of Schedule 1 makes it clear that the order of presentation required by paragraph 4 of section 2 requires the agreement to be headed "Credit Card Agreement Regulated by the Consumer Credit Act 1974". The application form provided by the Claimant clearly fails this requirement.

12. Secondly, S60(1) of the Consumer Credit Act 1974 states that an agreement must contain certain Prescribed Terms under regulations made by the Secretary of State.

The prescribed terms referred to are contained in Schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and including but not limited to:

 

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:

 

a) Number of repayments.

b) Amount of repayments.

c) Frequency and timing of repayments.

d) Dates of repayments.

e) 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.

13. In the witness statement of Miss ?????? (Claimants Solicitor) it states the document was clearly signed by the Defendant in the bottom right hand corner and was also countersigned by the Claimant a duly authorized officer in the top left hand corner".

14. There appears to be a black doodle on the top right hand corner outside of the markings of "four corners" there is no indication that this is in fact a signature, no reference to the name of the person who has allegedly signed in this manner, what position they are employed by MBNA Europe Bank Limited, under what status the signature was applied and whether it is normal practice to counter sign documents in this way. It is suggested that this document is in fact a copy of a smaller document photocopied onto a larger piece of paper thus showing the original four corner markings. Had this "signature/doodle" been on the original document then it would be within the four corner markings and not outside of the larger size piece of paper, it is suggested that this "signature/doodle" as the person responsible for microfiching the documentation.

15. The Pre Contractual Application Form (Exhibit L3/MBNA4) does not have a "Signature Box" to be signed by the Creditor, therefore it was never intended to be a Consumer Credit Agreement, the agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by the debtor or creditor it is also improperly executed and only enforceable by court order.

 

16. It is submitted that the credit agreement supplied falls foul of the Consumer Credit Act 1974 as the prescribed terms are not contained within the agreement. These terms must be contained within the agreement and cannot be contained within a separate document. I will refer to the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 [11] which provides the precedent for this opinion.

 

17. The Claimant will, therefore, be put to strict proof that these terms and conditions did actually form part of the original document that was presented to me to sign.

18. The agreement must be signed in the prescribed manner to comply with S61 (1) CCA 1974. If the agreement is not signed by debtor or creditor it is improperly executed and enforceable only by court order. The application form produced by the Claimant is not properly executed.

19. During several months more communication was sent to MBNA Europe Bank Limited drawing their attention to the fact that the account remained in dispute as the documents that they had supplied, do not comply with their duty to supply a "True Copy" of any agreement they claim to have been signed by me, for pre 2007 agreements. MBNA Europe bank Limited responded on August 18th 2009 (Exhibit L6) acknowledged my communication and were investigating my complaint.

20. The witness statement of Miss ?????? (Claimants solicitor) states at (Paragraph 1) that I signed a credit agreement dated 21/05/2001 (the credit agreement). It is denied that I signed an agreement on this date or at all.

21. It is admitted that I signed a Pre Contractual Application Form with MBNA Europe Bank Limited on 11/05/2001 (10 days prior to that above) and that as a result a credit card was issued to me to use by the Claimant MBNA Europe Bank Limited. It is denied that the signing of the Pre Contractual Application Form bound me to any future agreement if the application was approved by the Claimant- or that the Pre Contractual Application Form itself was an executed agreement.

22. To the best of my recollection I did not see the sort of prescribed terms in the Pre Contractual Application Form as has been produced by the Claimant and I recall the Pre Contractual Application Form being short and simple to complete. It is denied that I ever signed any other document after completing the Pre Contractual Application Form.

 

23. It is denied that I have sought to avoid my responsibilities or act to substantially delay matters, I simply wanted to establish which creditors had legally enforceable agreements and which did not - It seemed to have been no trouble for my other creditors but has been difficult for MBNA Bank Europe Limited.

 

24. It is denied that any documents or leaflets were enclosed with the Pre Contractual Application Form or that any terms and conditions, including prescribed terms were contained or embodied within the Pre Contractual Application Form I signed or that they were ever provided either at the time of signing the Pre Contractual Application Form , or subsequently. Having been shown the terms and conditions in several different formats that have been supplied by the Claimant - in the course of these proceedings and which run to several pages- I am sure I would have remembered receiving them.

25. The witness statement of Miss ?????? (Claimants Solicitor) states "the Agreement" being the Pre Contractual Application Form is a micro fiche copy (Exhibit L3/MBNA 1), the first page (Exhibit L3/MBNA1) containing the completed personal details of the Defendant. On the reverse side of the original document are the Terms & Conditions – which include the prescribed terms (as defined by the Consumer Credit Act 1974) – these appear on the second page of exhibit MBNA 1. The document signed by the Defendant would have been a single document containing the prescribed terms and therefore the 2 pages of exhibit MBNA 1 are copies of the same single original Agreement. As Miss ?????? (Claimants Solicitor) has acknowledged this is a microfiche copy of "the agreement" and it would have been a double sided document, unless she has seen the original supposedly double sided Pre Contractual Application Form how can she make this claim, will the original be made available to the Court for inspection? The second page of exhibit MBNA 1 when placed back to back with Page 1 shows clearly that the four corner markings of the page do not line up therefore it could not have been the information on the reverse of page 1.

26. There is no relationship between the front or reverse of the Pre Contractual Application Form , page 1 on the bottom left hand corner has the marking NE-08-00 and page two headed "Financial & Related Conditions" and not "Terms & Conditions" on the bottom right hand corner has the marking 12/00 . The claimant has produced no evidence to show both parts are, in fact, related to one another or appeared in the same document.

27. In the witness statement of Miss ?????? (Claimants solicitor – continuation sheet Paragraph 4) it states a Default Notice was issued (Exhibit L7/MBNA 5) is a recreated copy of the Default Notice issued by the Claimant and would have complied with all requirements of the Consumer Credit Act 1974 and any Regulations made pursuant to it and contains all the required prescribed terms in the same document. The Default Notice issued is open to interpretation as the Default only stated they might and not would terminate the agreement by asking for the full balance, MBNA Europe Bank Limited have not provided an official notice to termination and the default notice was subject to interpretation and not concise in nature, this needs to be clear to the debtor and not open to certainty.

28. Further when the Claimants solicitors complied with the CPR 31.15 further Transaction History (Exhibit L9 -dated from 24.05.01 to 02.09.2009) which was not disclosed previously by MBNA Bank Europe Limited between the period 02.07.01 to 02.02.03 PPI payments totaling £263.99 was charged although it is clear on the Pre Contractual Application Form Section 3, Financial Details, Payment Protection Cover – it states "For cover, just tick the Yes box, there was no marking by the Defendant to authorize this payment. I fully expect, to discover- when the Claimant is eventually forced to disclose the documents that an unfair relationship will be established insomuch as it is likely, as in the case of Lynn Thorius v MBNA IN THE NEWCASTLE-UPON-TYNE County Court 21st September 2009.

29. In the witness statement of Miss ?????? (Claimants Solicitor – continuation sheet paragraph 6) it states that" the Defendant sent a letter unsigned dated 18th January 2010, requesting documentation pursuant to CPR 31.14 , the Defendant was asked to sign future correspondence to prove that she was the genuine author, the same letter was received by the Claimants solicitor in a different signature to that held on record, this was sent back to the Defendant, On February 1st 2010 the Claimants solicitor received a further request dated January 28th, 2010 and this time the signatures did correspond".

30. The facts are that on December 3rd, 2009 Mr M *****, Litigation Executive of Reston’s Solictors Limited, Claimants Solicitors initiated contact with the Defendant regarding this matter, and stated that they acted for the Claimant and demanded immediate payment for the outstanding balance. The Defendant replied to this first contact on December 7, 2009 (Exhibit L8) drawing their attention to the fact there was a dispute with their client. The Claimants Solicitor, Mr M ***** acknowledged this letter which was signed by Miss ?????? on December 14th, 2009. Further correspondence was received by the Defendant on January 4th, 2010. Mr ***** and Miss ?????? had been corresponded freely with the Defendant without any question of establishing identity or of requiring signatures despite the highly personal nature of correspondence. The Claimants solicitors Reston’s Solicitors Limited, appeared to have adopted their clients obstructive methods in avoiding their CPR responsibilities, the reasons being given for non compliance being trite and disingenuous.

 

Between that time and January 20th 2010 the Defendants CPR 31.14 request was sent to the Claimant were dated January 18th 2010 by Royal Mail Recorded Delivery. The Claimant responded to the requests by letter dated 20th January 2010 and stated that they would not acknowledge receipt nor provide any response is documentation was signed.

31. It is suggested that Reston’s Solicitors Limited were fully intent on frustrating my ability to compile a full defence and that the reasons given as to not complying were trite and childish when correspondence had been going to and from Claimants solicitor and myself.

 

No prior indication or warning was given by Reston’s Solicitors Limited that this policy was to be introduced.

 

Having previously been satisfied as to my identity- it is suggested that there was an obligation on the part of Reston’s Solicitors Limited to advise in advance, any change of policy, with regard to answering communications from the Defendant and that a reasonable and right thinking person would have taken the view that as the new "policy" was not fairly advised to me prior to the requests - that they should be complied. I was advised not to sign documentation when corresponding about this matter as it has been known that photoshop alternations can take place, and signatures can be placed where they were not previously, alternatively the advice is to sign a signature in a different manner to your normal signature so that it can be dated when the change took place.

32. In the Witness Statement of Miss ??????, Claimants Solicitor (Continuation Page 2 – Paragraph 7 & Page 3 – paragraph 1) it states that Exhibit L2 of the Defence has a page missing – specifically the reverse of the Credit Agreement which contains the prescribed terms. I have not deliberately done this to mislead the court and to my knowledge included the supposedly side 2 headed "Financial & Related Conditions to which Miss ?????? is referring.

 

33. In the Witness statement of Miss ??????, Claimants Solicitor (continuation Page 3 – Paragraph 2) it states "on the 21st April 2010 the Claimants solicitor wrote the Defendant (MBNA7) and addressed issues in her Defence and the Defendant was given the opportunity to withdraw her defence in order to avoid application for Summary Judgment, but has not done so". On April 27th 2010 I replied to this letter from Claimants solicitor (Exhibit L11) informing them that despite numerous requests under CPR 31.14, they had failed to supply the documentation, supplying only a one sided application for and a truncated section of terms and that the application form was never intended to become a Regulated Agreement and does not serve a dual purpose as stated. The documentation was again requested under CPR 31.15, allowing inspection of the original document within 7 days of this letter.

34. I also informed the Claimants Solicitor in this letter with regard to their invitation to withdraw her defence "as they do not believe that she had an argueable Defence in Law" that I had copied this to the Croydon County Court Manager as I was waiting for directions from the courts and not the Claimants Solicitor and without the original documentary proof I did not think they had an arguable claim. I believe that I have an excellent chance as a Litigant in Person of successfully defending this case and refer to Sir Andrew Morritt's view in the Court of Appeal on the whole issue of CCAs:

Quote:

 

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in s65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid".

 

35. REASONS WHY THE CLAIMANTS APPLICATION SHOULD BE REFUSED

The Claimant’s application for Summary Judgment is, in the opinion of the Defendant-speculative and is made whilst the Claimant is prevented from enforcement by virtue of its continuing default of its obligations under s78 of the Consumer Credit Act (The Act) and having been previously alerted to the fact by the Defendant, is an abuse of process. .

 

36. I suggest that the Claimants application for Summary Judgment - when he is unable to supply an original, or verified copy of an executed agreement is also an abuse of process and his application must fail

 

37. Not only is the Claimant seeking enforcement whilst prevented from doing so under s78 - but is seeking to do so with an agreement that is a micro fiche copy of a Pre Contractual Application Form never intended to be in any event would not be an executed agreement.

38. In respect of "Hearsay" evidence the Claimant seeks to rely upon re- constructed documents without compliance with the Documents In Court- Civil Evidence Act 1995 Inter Alia:-

 

[e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence is required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

 

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

 

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

 

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

39. The defence contends that the Claimant would be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and I will at trail have the opportunity to request the permission of the court to question the credibility of any witness relied upon by the Claimant. Furthermore it is my view that the sole witness for the Claimant Miss ?????? is a Litigation Executive who is not employed by the Claimant and who therefore could not be a competent witness in relation to the matters referred to above.

40. The Claimant has submitted to the court in (MBNA/1 L3) as being a micro-fiche copy of an Pre Contractual Application Form signed by me, which has been "married up with" " another document" containing some prescribed terms.

41. I will show , by cross reference to other evidence supplied by the Claimant - that the prescribed terms- supposedly given to me at the time of Application do not match the "Financial & Related Conditions on the second page of L3/MBNA1 in particular Item 11 refers to the charging of an interest period as opposed to reconstructed Terms & Conditions dated 12/00 Item 1 relates to Personal Information - that the Claimant alleges form part of an executed agreement- could not have been the prescribed terms of the alleged agreement.

 

42. Further when the Claimants solicitors complied with the CPR 31.15 further Transaction History (Exhibit L9 - dated from 24.05.01 to 02.09.2009) which was not disclosed previously by MBNA Bank Europe Limited between the period 02.07.01 to 02.02.03 PPI payments totaling £263.99 was charged although it is clear on the Pre Contractual Application Form Section 3, Financial Details, Payment Protection Cover – it states "For cover, just tick the Yes box, there was no marking by me to authorize this payment. I fully expects, to discover- when the Claimant is eventually forced to disclose the documents that an unfair relationship will be established insomuch as it is likely, as in the case of Lynn Thorius v MBNA IN THE NEWCASTLE-UPON-TYNE County Court 21st September 2009.

43. That the Claimant seeks to obtain a Summary Judgment in the matter whilst at the same time avoiding and /or resisting disclosure of documents to which I am entitled in order to fully particularise my defence- does not in the opinion of the defence equate to fairness or the overriding principles.

 

44. The default notice (exhibit L7/MBNA 5) upon which the Claimant relies as a cause of action to entitlement to the benefits of s87 (earlier repayment of sums not yet due under the agreement) was served post- termination of the agreement and is not a valid Default Notice and therefore the Claimant has no cause of action to claim entitlement to "sums that were not yet due under the alleged agreement" and his application must fail. The Claimant may never now serve and effective Default Notice and it should be right that Summary Judgment in this matter be given in favour of the Defendant.

45. The commencement of legal proceedings by the Claimant in the face of his unlawful repudiation and termination of the agreement it also averred as an abuse of process and an unnecessary waste of the time and costs of the court, the Defendant and the Claimant themselves.,

 

FAILURE TO COMPLY WITH CPR31.14 AND CPR31.15

 

46. The Claimant has repeated been asked by me prior to any proceedings to produce a the original executed agreement and not an enforceable reconstructed application form with added Terms and Conditions that is devoid of all prescribed terms and is illegible then the best course of action would be to a compliant agreement of setting the balance to zero. On all occasions he has ignored the invitation.

47. The Claimant could have made this admission many months ago and that the matter could then have been resolved without the costs and the involvement of the court process.

48. The witness for the Claimant Miss ?????? makes a statement at Continuation Sheet 1 Paragraph 5 in her witness statement suggesting that the Defendant is acting "speculatively" and trying to avoid her obligations.

49. The court should be aware that I have never denied obtaining or using a credit card facility with the Claimant- and understands that even if a debt is legally unenforceable it still remains- however in this case, the Claimant has in any event unlawfully repudiated the alleged agreement.

50. The Claimant themselves have ignored a Subject Access Request and reminder letter informing them that they risk Breaking OFT rules and have ignored that too (Exhibit L1).

51. The Claimants solicitors Reston’s Solicitors Limited, appeared to have adopted their clients obstructive methods in avoiding their CPR responsibilities. The reasons being given for non compliance being trite and disingenuous.

52. In the witness statement of Miss ?????? (Claimants Solicitor – continuation sheet paragraph 5) it states "A defence has been filed, whereby the full amount is disputed. The defence is in a format widely circulated on the Internet and is often used by Defendants in an attempt to avoid repayment of a debt or to substantially delay matters". I am a Litigant in Person and cannot afford legal representation therefore I have researched my defence with the benefit of assistance available via the internet, eg: Office of Fair Trading, Citizens Advice Bureau, and several consumer advice websites.

I have not attempted to avoid repayment or substantially delay matters, I have repeatedly written to MBNA Bank Europe Limited to comply with s78 Consumer Credit Act 1974 to provide the requested "True Copy of the Executed Credit Agreement". The Pre Contractual Application Form provided does not contain the required prescribed terms in the same document as required in the Consumer Credit Act 1974.

 

THE CREDIT AGREEMENT

53. I have admitted signing a Pre Contractual Application Form on May 11, 2001 and which is not itself an executed agreement and which is not binding on any future agreement.

54. The first page of the document produced at (Exhibit L3 and MBNA/1) and referred to in Miss ??????s statement as a microfiche copy of the Credit Agreement between the Claimant and the Defendant, this is in fact a copy of the Pre Contractual Application Form referred to in the preceding paragraph.

55. It is noted that Miss ??????s claims that this is signed by the creditor and the Defendant, for this document to be a true copy of an executed credit agreement there is not a space for him to do so - as would a genuine agreement, and is not in the form required by the Act. Nor is it headed as, a regulated agreement would (must) be headed. The heading of this document clearly states itself as "MBNA Classic Card Application Form".

56. If the Claimant has been so careless as to lose and/or dispose of the original signed agreement during the currency of that agreement, and then has also lost, or has no way of locating or knowing which master copy of several, was originally used and has to resort to "using a Pre Contractual Application Form a as a dual purpose document" then he cannot realistically expect to have that alleged agreement legally enforced.

57. The defence suggests that The Consumer Credit Act is not act to come to the aid of the financier and to assist him to overcome his misfortunes until he eventually "gets things right"

58. Notwithstanding that I deny the document in (Exhibit L3) page one and two is an agreement- let alone an executed agreement - it is of note that the Claimant attempts to seek judgment on a Pre Contractual Application Form that is not an executed agreement.

 

Supreme Court Judgment on 7th July 2010 Re: Consumer Credit Act

12. The Act and the Regulations distinguish between ‘prescribed terms’ and

‘required terms’. In the case of an agreement predating 6 April 2007 such as the

agreement which is the subject of this appeal, by section 127(3) of the Act a failure

properly to include a prescribed term in the agreement renders the agreement

wholly unenforceable, whereas a failure properly to include a required term merely

means that the agreement is enforceable only by court order under section 65(1) of

the Act. In the case of the agreement in this case, the prescribed terms were: a term

stating the amount of credit (Agreements Regulations reg 6(1) and Sch 6, para 2), a

term stating the rate of any interest on the credit to be provided under the

agreement (ibid Sch 6, para 4) and a term stating how the debtor is to discharge his

obligations under the agreement to make the repayments (ibid Sch 6, para 5).

 

Statement of Truth

I ??????, believe the above statement to be true and factual

 

Signed: …………………………….

Date: 9th July 2010

 

 

Made a few changes - if you disagree no problem. I have to keep popping in and out but I think you will have other input.

Keep copies of each version on you computer (in My Documents or similar) and delete the previous ones on here. So if you delete something important from here you still have a record of the previous version. Then you can post the updated version and not drive everyone to despair scrolling through everything.

 

Back later.

[LB145]

Here you go LB, sorry I can't help with anything else!

 

 

cheers Dotty - I just couldn't load the thing - thx -

[LB145]

5. The Claimant ignored the original request and this was followed up with a reminder letter dated 11th May notified them the Account was in Dispute. The Claimant failed to comply or respond to letters reminding them of their obligations, 15th June 2009 I made a written Formal Request for Information CPR part 31.14 (Exhibit L1) and so I was advised (by who? MY FELLOW CAGGERS:D) to stop making payments to them in order to obtain a response to my s78 request.

[LB145]

What does the ? mean (blonde remember!)

 

6. Despite not responding to my s78 request and notifying MBNA Bank Europe Limited that the account was in Serious Dispute MBNA passed my details to Global Vantedge (sp!?), a debt collecting agency. Under the Consumer Credit Act 1974, whilst a creditor is in default of this request, it may not enforce, pursue or increase any alleged indebtedness until such time as it does comply. Quote where it states this in the CCA.

[wycombe]

Sp = Spelling

 

Should it be Vantage?

[LB145]

Sp = Spelling

 

Should it be Vantage?

 

thanks for the explanation No should be as written Global Vantedge

[wycombe]

You can probably delete post 308 now.

 

Make sure you have a copy on your computer before you get rid of it

[LB145]

LBSJDOC.rtf

 

Tried to attach updated LBDOC - fingers crossed

[wycombe]

Deleted as post amended further in the thread

Edited July 14, 2010 by wycombe
Amended post further down thr thread

[citizenB]

Sp = Spelling

 

Should it be Vantage?

 

thanks for the explanation No should be as written Global Vantedge

 

 

Who have now changed their name to Aegis, as I understand it.

 

 

5. The Claimant ignored the original request and this was followed up with a reminder letter dated 11th May that notified them the Account was in Dispute. The Claimant failed to comply or respond to letters reminding them of their obligations, 15th June 2009 I made a written Formal Request for Information CPR part 31.14 (Exhibit L1) and so I was advised to stop making payments to them in order to obtain a response to my s78 request.

 

 

I think you will get a black eye with that statement. I have no alternative suggestion though. [

 

14: IMHO, "doodle" should be replaced with "squiggle" or even "indecipherable squiggle"

 

Part of paragraph 30.. The bit I have highlighted doesnt make sense ?

Between that time and January 20th 2010 the Defendants CPR 31.14 request was sent to the Claimant were dated January 18th 2010 by Royal Mail Recorded Delivery. The Claimant responded to the requests by letter dated 20th January 2010 and stated that they would not acknowledge receipt nor provide any response is documentation was signed.

 

 

46. The Claimant has repeatedlybeen asked by me prior to any proceedings to produce a copy of the original executed agreement and not an unenforceable reconstructed application form with added Terms and Conditions that is devoid of all prescribed terms and is illegible then the best course of action would be to a compliant agreement of setting the balance to zero. On all occasions (he) has ignored the invitation.

 

I think you should replace (he) with THEY or the Claimant.

 

YOu repeat this throughout the Statement. This is a Bank/Credit Card company and not a person!

 

MBNA apparently claimed they did not receive your SAR.. yet you have proof via the RM Website that it was. You could also telephone the post office and find out when the Postal Order was banked.

 

Telephone 01246 542091. It is a direct line so no hanging around. You will need the postal order receipt (id number) that you were given when you purchased the postal order.

Edited July 13, 2010 by citizenB
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[Dotty50]

There is a 90 days limit on getting the information from the Post Office regarding encashment of postal orders after this time the information is archived and they will not give you details