County Court Claim received MBNA\Restons

[LB145]

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

 

 

Thanks all so appreciated

 

Dotty - the Royal Mail letter is that I previously checked whether the CCA request had been received by MBNA and accepted that. However the solicitors wrote stating that MBNA had never had this request from me. I then went back on the RM website and could not track the letter - RM has installed a new system and this does not allow tracking on previous items however after phoning them they have a "backdoor" to the old system and are able to get the information - and I had to pay a small amount - £2 something and they then sent me written proof from them plus a copy of the signature of receipt!!!

 

So now I always print the screen showing the information plus a pdf of the signature

[Dotty50]

Hi LB,

 

I was referring to CitizenB's comment about checking whether the postal order had been cashed for your CCA request.

 

Something to look for in their letters that I spotted last night in mine was that in a letter dated 1st Sept they denied receiving my original CCA request from April 09 but then a later letter dated 16th Sept they actually put a reference to the request of 30th Apr 09 (which was the date they signed for it).

 

You don't always notice things first time around but worth looking for anything like this.

[wycombe]

Amended post further along the thread!!

 

 

I'm tired now and cannot sort out the language in Para 28. I think I know what you are getting at but cannot think of suitable phraseology. Maybe you - or another Cager can sort this one out!!

 

Para 40 needs rephrasing as well!

Para 42 repeats para 28?

 

I am having to call it a day - cannot concentrate fully.

 

I'm an early bird so will look in tomorrow morning.

 

If you get a chance put up a revised WS with the changes you think are OK. I will then delete the WS copies I have amended and have a look through the new one.

 

See you tomorrow!!

Edited July 14, 2010 by wycombe

[DontPushMe]

28. Further, when the Claimant's solicitors complied with the CPR 31.15 Further Transaction History (Exhibit L9 - dated from 24.05.01 to 02.09.2009. This was not disclosed previously by MBNA Bank Europe Limited) between the period 02.07.01 to 02.02.03 PPI payments totalling £263.99 were 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 previously requested documents - that an unfair relationship will be shown to have existed, as in the case of Lynn Thorius v MBNA IN THE NEWCASTLE-UPON-TYNE county court 21st September 2009.

 

Yeah, my brain hurts too!

 

Have just nit picked the apostrophes a bit. Unfortunately I don't know how to highlight my emendations.

 

Plod on, you're doing a great job and you'll get there in the end.

 

DPM

[LB145]

Thank you so much Wycombe - much appreciation going out to you and everyone for their input. I am working, amending and in dire need of a cup of tea.

[DontPushMe]

40. The Claimant has submitted to the court a microfiche copy of a Pre-Contractual Application Form allegedly signed by me (see MBNA/1 L3). This appears to have been married up with "another document" containing some prescribed terms.

 

I put in 'allegedly' but you may want to take it out if you're not disputing your signature. Altho I've read the whole thread I can't remember whether you're disputing that you signed (I think I read too many threads!).

 

Not quite sure why the first phrase had quotes. Was it a quotation from a previous document or was it to question the way it has been introduced?

 

DPM

 

[LB145]

40. The Claimant has submitted to the court a microfiche copy of a Pre-Contractual Application Form allegedly signed by me (see MBNA/1 L3). This appears to have been married up with "another document" containing some prescribed terms.

 

I put in 'allegedly' but you may want to take it out if you're not disputing your signature. Altho I've read the whole thread I can't remember whether you're disputing that you signed (I think I read too many threads!).

 

Not quite sure why the first phrase had quotes. Was it a quotation from a previous document or was it to question the way it has been introduced?

 

DPM

 

 

 

it is my signature on the Pre contractual application form but never signed another document - thx

[DontPushMe]

41. I will show, by cross reference to other evidence supplied by the Claimant (under CPR??) and allegedly given to me at the time of Application, that the prescribed terms 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 forms part of an executed agreement- could not have been the prescribed terms of the alleged agreement.

 

I'm probably reading this wrong but in the last sentence if item 11 and item 1 are of similar importance then why not reverse the two items thus:

 

Oh dear, can't cut and paste!

 

In particular, Item 1 refers to Personal Information that the Claimant alleges forms part of an executed agreement and Item 11 refers to the charging of an interest period as opposed to reconstructed Terms & Conditions dated 12/00. These terms could not have been the prescribed terms of the alleged agreement. (Why not, BTW?)

 

Sorry if I've misunderstood anything and completely bolloxed it up (it's OK to say that cos John Wayne once said it in a film - honest!). I'll go and lie down now...

 

DPM

[DontPushMe]

28 is pretty much identical to 42 as per Wycombe's observation.

 

DPM

[DontPushMe]

43 Are you allowed to put in your opinion? Isn't there a rule that solicitors should not take advantage of a LiP? I'll go have a hunt out. Something from the SRA, methinks. Somebody else may know. Anybody??

 

DPM

[DontPushMe]

Good old SRA website. Solicitors Regulation Authority - Solicitors' Code of Conduct 2007 rule 10.01 says that you (a solicitor) should not take unfair advantage and the guidance note 2 says:

 

"Particular care should be taken when you are dealing with a person who does not have legal representation. You need to find a balance between fulfilling your obligations to your client and not taking unfair advantage of another person. To an extent, therefore, 10.01 limits your duty to act in the best interests of your client. For example, your duty may be limited where an unrepresented opponent provides badly drawn documentation. In the circumstances you should suggest the opponent finds legal representation. If the opponent does not do so, you need to ensure that a balance is maintained between doing your best for the client and not taking unfair advantage of the opponent's lack of legal knowledge and drafting skills."

 

You could argue that the Claimant is being unfair by apparently limiting your access, either intentionally or otherwise, to documentation that you need to inspect so that you can prepare your defence properly.

 

DPM

[LB145]

Thanks all - I seriously have done my own head in so I cant thank you all enough - although I cant get to grips with this one above from DPM and nopw my computer keeps freezing - (4 hours sleep each night is not enough:-() - I will repost again adn let you all have some well earned sleep - Big Thanks

[LB145]

LBSJDOC2.rtf

[wycombe]

Right Oh!! Back to the fray. I've had a couple of cups of black coffee, taken the dog for a walk, watered my wife's plants in the garden and had a spot of breakfast.

 

Anyway the WS is starting to look good. Still needs some polishing and changes but we are getting there!

 

One thing I thought of whilst out with the dog - it is not necessary to keep repeating the bits where it states - Miss ......., the Claimants solicitor. Presumably this is the lovely MissTipping who seems to wind everyone up with her missives and statements?

 

Anyway it is enough just to say the Claimant in these bits. If I have time I will amend these later or you can do it yourself when doing another amended draft later on.

[wycombe]

Will look in later to see how things are going.

Edited July 14, 2010 by wycombe
Full WS further down thread

[LB145]

Morning all - just wanted to make a point out that the famous one is not employed by MBNA and cannot confirm that this is correct - if you know what I mean - I haven't had coffee yet but the machine is on!!! instant coffee just dosen't cut it anymore .

 

Two washing loads done, 2 kids dropped to school, 1 still on settee (ill) - customer coming at 10.00am and I need to get money in the bank so that the mortgage gets paid, package and post parcels, and te list rom yesterday is only 2/3 done - and most importantly to THANK my CAG ANGELS for their help and get it to the courts efore 4.00pm!

[LB145]

Eureka - just found my sons laptop - its faster than my antiquated 2000 model!!!

[wycombe]

Does this have to be done and dusted today!!?

 

I'm out between 11am and 1pm so hopefully there will be enough time for final tweakings and printing everything off before the deadline.

 

Miss (presumably) Tipping is being employed by MBNA as a solicitor (through Reston's) but not in any other capacity so she cannot be a witness to any of MBNA's procedures and work practices!!

 

Correction to two of my amendments

 

Para 52 remove all italics

 

Last Para - remove Bold type only (not the Capitals)

[LB145]

got to go to bank will be back soon - updated with changes - almost there - Big Cheer!!!:D:D

 

 

LBSJDOC3.rtf

[wycombe]

Right lets see if we can give this a final polish and get it ready for final printing!!!

 

 

 

 

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.

 

2. 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 Europe Bank Limited.

 

3. 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.

4. 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.

5. 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".

 

 

6. 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 temporarily stopped making payments in order to obtain a response to my s78 request.

 

7. Despite not responding to my s78 request under the Consumer Credit Act 1974 and whilst the account was in dispute MBNA passed my details to Global Vantedge, 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. Make sure you delete this bit when you print off = Quote where it states this in the CCA. You need to illustrate this point with the relevant bit of legislation

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

 

9. On August 8th 2009 I received a package from MBNA Europe Bank Limited in response to my formal request for information through 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) and Transaction Log (Dated 02.03.03 – 02.07.2009).

10. In response to the documents supplied by my Subject access request I wrote to MBNA Europe Limited on 8th August 2009 (Exhibit L5) stating that the contents are noted but 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.

11. 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).

 

 

12. 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.

13. 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.

14. In the witness statement of the Claimant it states the document was clearly signed by me in the bottom right hand corner and was also countersigned by a duly authorized officer in the top left hand corner.

 

15. There appears to be a black indecipherable squiggle on the top right hand corner outside of the markings of "four corners" there is no indication that this is in fact a signature, there is 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/indecipherable squiggle" 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/indecipherable squiggle" as the person responsible for microfiching the documentation.

 

16. 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.

 

 

17. 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.

(At the hearing make sure you have this with you so you can quote the relevant bits when needed)

 

18. 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.

 

19. 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.

 

20. Many further letters were 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 did not comply with their duty to supply a "True Copy" of any agreement they claim to have been signed by me. MBNA Europe bank Limited responded on August 18th 2009 (Exhibit L6) and acknowledged my communication stating they were investigating my complaint.

 

21. The witness statement of the Claimant states (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.

 

22. It is admitted that I signed a Pre Contractual Application Form with MBNA Europe Bank Limited on 11/05/2001 and that as a result a credit card was issued to me to use. It is denied that the signing of the Pre Contractual Application Form meant that I had signed a properly executed agreement.

 

23. It is denied that I ever signed any other document after completing the Pre Contractual Application Form which to my knowledge did not contain any prescribed terms.

24. It is denied that I have sought to avoid my responsibilities or act to substantially delay matters. Due to financial hardship exacerbated by increased interest rates it was my sole intention to investigate the validity of such increases which I considered unjust in light of the very low bank rate. To do this I sent S78 requests to all my creditors in order to examine the agreements and contracts I had with them.

 

25. 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.

26. The witness statement of the Claimants solicitor it states "the Agreement" being the Pre Contractual Application Form is a micro fiche copy (Exhibit L3/MBNA 1). The first page (Exhibit L3/MBNA1) contains my personal details. 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 me 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 the claimantr has acknowledged this is a microfiche copy of "the agreement" and it would have been a double sided document. 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. Thus I respectfully request the alleged original properly executed agreement that the Claimant states exists is produced at the hearing.

27. 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, is headed "Financial & Related Conditions" and not "Terms & Conditions" has on the bottom right hand corner 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.

 

28. In the witness statement of the claimant (continuation sheet Paragraph 4) it states a Default Notice was issued (Exhibit L7/MBNA 5) which 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 of 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 uncertainty.

 

29. Further, when the Claimant complied with the CPR 31.15 Further Transaction History (Exhibit L9 - dated from 24.05.01 to 02.09.2009. This was not disclosed previously by MBNA Bank Europe Limited) between the period 02.07.01 to 02.02.03 PPI payments totaling £263.99 were 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 expect, to discover - when the Claimant is eventually forced to disclose the previously requested documents - that an unfair relationship will be shown to have existed, as in the case of Lynn Thorius v MBNA IN THE NEWCASTLE-UPON-TYNE county court 21st September 2009.

Again you will need this with you at any hearing - print it off and highlight the bits you expect to refer to and quote

30. In the witness statement of the Claimant (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 facts are that from 3rd December 2010 and the 20th January 2010 the claimants solicitors had been corresponding freely with me without any question of establishing identity or of requiring signatures despite the highly personal nature of correspondence.

 

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 me.

 

32. In the Witness Statement of the Claimant (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 the claimant is referring.

 

33. In the Witness statement of the Claimant (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 the Claimants solicitor (Exhibit L11) informing them that despite numerous requests under CPR 31.14, they had failed to supply the documentation asked for. Instead they supplied a one sided application form and a truncated section of terms and conditions. It is apparent that the application form was never intended to become a Regulated Agreement and does not serve a dual purpose as stated. The proper 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 Claimant in this letter, with regard to their invitation to withdraw my 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:

 

"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. In the Witness Statement of the Claimantr (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 they are referring.

 

36. I suggest that the Claimants application for Summary Judgment - when they are unable to supply an original, or verified copy of an executed agreement is also an abuse of process and their 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 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. I contend that the Claimant will be introducing hearsay evidence regarding the authenticity of any reconstituted agreement and I will at trial 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 is a Litigation Executive employed by their solicitors and is not employed by the Claimant at their main place of business 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 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. 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 an 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 is an abuse of process and an unnecessary waste of the time and costs of the court, myself and the Claimant.

46. I have repeatedly requested the Claimant to produce 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. The best course of action would be to produce a compliant agreement setting the balance to zero. On all occasions the Claimant has ignored this invitation.

47. The Claimant makes a statement in their witness statement suggesting that I am acting "speculatively" and trying to avoid my obligations. The court should be aware that I have never denied obtaining or using a credit card facility provided by the Claimant - and I understand that even if a debt is legally unenforceable it still remains. However in this case it is my contention the Claimant has unlawfully repudiated the alleged agreement.

48. The Claimant has ignored a Subject access request and reminder letter informing them that they are breaking OFT rules by their refusal to comply and this has been ignored too (Exhibit L1).

49. The Claimant has been using obstructive methods to avoid their CPR responsibilities. The reasons being given for non compliance being trite and disingenuous.

 

50. The Claimant states – (continuation sheet paragraph 5) "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 (Remove the italics) 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 of the 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.

 

51. I have admitted signing a Pre Contractual Application Form on May 11, 2001 which is not itself a fully executed agreement and which is not enforceable as such.

 

52. The first page of the document (Exhibit L3 and MBNA/1) and referred to by the Claimant as a microfiche copy of the Credit Agreement between the Claimant and the Defendant, is in fact a copy of the Pre Contractual Application Form referred to in the preceding paragraph.

 

53. It is noted that the Claimant 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 should be a space for the Claimant or his authorised representative to sign - as would any genuine agreement. It is not in the form required by the Act. Nor is it headed as a regulated agreement must be headed. The heading of this document clearly states "MBNA Classic Card Application Form".

 

54. 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.

 

55. I suggest that The Consumer Credit Act is not legislation formulated to assist the Claimant to overcome his misfortunes until he eventually "gets things right".

 

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

 

This point is very ably reinforced by a recent 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

OK that seems to be it. Hopefully others will add their input and last minute thoughts.You will need to format it carefully before printing so all type face is the same size and everything is indented properly. Try to print off a couple of hours before you take it to the Court to allow for any last minute additions/deletions

[supasnooper]

Miss L. Tipping is a "Litigation Executive" employed by Restons............to apply her title correctly.

[LB145]

Just got back - thanks - the queues in the bank are to the door! Will make amendments and take to courts on the way to the Orthodentist this afternoon before 4.00pm!!! Thx

[LB145]

Still haven't had that coffee yet!

[emandcole]

Hey LB, thanks for the earlier PM's and good to see you're coping so well. As for cakes for the court scrub that, but how about cakes for all of us?

 

Just kidding. The above is looking good, if it's not too late you might as well add the following. Bung it in around point 22 or 23 I guess.

 

As the application was pre-contractual it was signed blind. The Consumer Credit Act 1974 states:

(59): Agreement to enter future agreement void

An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations.

 

[LB145]

just received in post WS of Diane Powell of MBNA which will be relied upon in hearing - my new WS must have shaken someone.