MBNA/Optima Legal/Court Papers Rec'd!

[emandcole]

Hi Peedee. Have not read your post but will come back to it and go over when I can. By the look of it this offer is hardly favourable to you so it would fall into the 'Optima trying it on' category. Believe such an offer is priviliged so would suggest not posting it on here just in case, others may well be more certain.

 

You state your defence is based on a dodgy default etc, sounds as if Optima are giving your defence some respect. Can I ask you, was PPI added to this account?

 

Optima/MBNA are still smarting from the fairly recent Thorius v MBNA case where the court ruled MBNA had created an unfair inbalance with the account due to the PPI and the entire account was declared non-payable. Believe Optima got in some trouble with MBNA over this so Optima have steeped up their tactics in order to achieve any kind of success to keep their client MBNA happy. Would suggest that's what this part 36 is about.

 

So, was PPI added and have you looked at this already?

[emandcole]

HI, if they've not responded to the 31.14 request you should follow this up immediately with the 31.15.

 

If they then fail to respond or comply apply to the court for an order forcing them to respond. Draft a proposed order for the court to consider/accept that results in the claim being dismissed with full costs if they do not reply to the court.

 

Can't let them continually drag their heels, they're the claimant, they should have all of this documentation ready to go and in order before they commenced action.

[emandcole]

Help! Just received a letter from Northampton County Court Bulk Centre advising me that my case has been transferred to my local County Court for Summary Judgement - what do I do now? Panic doesn't even begin to describe what I'm feeling at the moment:(

 

You did acknowledge the claim at the beginning and then submit a holding defence didn't you? What was the state of play before you got this letter? Maybe the claimant has made an application for SJ, sounds like it.

[emandcole]

Hiya, yes I did file a defence back in Feb of this year... all went quiet. Then in June of this year they sent me a Part 36 (apparently I'm not allowed to post details on here due to restricitions) and then I sent them a CPR31.15 request. They responded with an illegible agreement with my signature and when I say illegible I really do mean illegible. The form still appears like chinese characters even under a magnifying glass. That was received 9th July and then today I received the letter from Northampton.

 

Not sure what course of action to take next :-?

 

Ok, this is the danger of not following the 31.15 with an application to the court. You've inadvertantly allowed them to get away with things and now it looks as if they're trying to sneak an SJ against you.

 

You should be able to oppose this quite easily by informing the court of the facts to date so you'll ned to write as a matter of urgency detailing why an SJ is inappropriate, you just need to show that this matter requires court time as there are unresolved points the claimant has not resolved.

 

Detail the facts to date, explain you are and have been waiting on the claimant to provide you with documentation. Discredit the documentation you do have in any legitimate way, the illegibility of the 'agreement' is a good example.

 

Is there a date on the court from advising you of when this will take place at all? Not seen one of these forms that's all.

[emandcole]

No there isn't a date. It just advises me that it has been transferred to my local court. The content is

To all parties

This claim has been transferred to the XXXXX County Court for summary judgement.

 

Any idea of where I can find an example of a letter to send to the court? I know I will have to creat one myself so I'm not looking to cut and paste but just want a bench mark of what is a 'good' letter. I want it to sound as tho it's written by me and not in legalise if that makes sense!

 

First off I'd call the new court and find out when it's likely to be heard, will give you an idea of how much time you have. You should get a letter from the new court advising you anyway but better to be pro-active. Optima do this all the time, especially when they might be on shoddy ground.

 

They hope for a duffer judge who wants to shoot off for a round of golf to just pass the SJ without too many questions

 

As for the letter you should be able to do this yourself, especially as you state you want it to come from you and not be wrapped in jargon. Just start it with Dear Sir/Madam and go from there.

 

State you are writing to oppose the claimants application for SJ on the following grounds.

 

Give the judge the history to date so they know what steps you've taken to obtain the info you need. Wherever Optima have failed detail that...just look to expose all of Optimas failings so the judge is under no illusion as to the unsuitability of an SJ.

 

List each of those grounds detailing what you don't have and if you do have it detail what is wrong with it. Agreement provided but completely illegible etc. No default notice, just list it all in bullet format and keep it clear and concise. Help the judge to help you ;-).

 

Send it off recorded or better still hand deliver it if you can. I've essentially given you the framework above so sure you'll have no problem composing a perfectly decent letter .

 

You should also pursue an application of your own against Optima to force them into providing the documentation you need, they are stalling and you should look to take advantage of that.

[emandcole]

That's brilliant Emandcole! Thank you for all your help. I'll definitely give the court a call and find out the state of play. Hopefully by bullet pointing everything the judge will appreciate the clearness of it and look favourably on me not trying to be Rumpole of the Bailey!

 

Thank you again!

 

Welcome. You should be fine, an SJ is only applicable where there really is no prospect of a defence succeeding, hardly the case when Optima haven't provided you with what you need.

 

Keep us posted.

[emandcole]

Something doesn't add up here, we all agree on that much!

 

SJ is only available to the claimant when the defendant has filed a defence or at least acknowledged the claim, in the majority of cases with exceptions for the type of claim SJ is perhaps appropriate. Clearly it would be for the claimant to then show the defendant has no real prospect of success etc.

 

The fact that a SJ application appears to have been processed this far would suggest that Peedee has certainly had his/her response recognised. That seems safe to presume then.

 

So, if the court confirms Optima have not submitted a defence and that the fee to have the stay removed has not been met something somewhere has crossed. How do we deal with it?

 

Can only suggest highlighting every aspect of the claim in full detail so the judge can be under no illusion that there is a mistake here. Have not submitted one of these myself so cannot write from experience but believe the process essentially involves legitimately refuting aspects of the claim so the judge is alerted to anomolies that need court time to address.

 

I believe given the series of events described that Peedee should have little difficulty opposing this as even the court doesn't appear to know what it's doing. SJ is therefore hardly a safe option to take, even if it were granted I suspect Peedee would have little trouble getting it set aside. Let's try and avoid that though and get the SJ denied.

 

Peedee, in view of the deadlines and possible lack of caggers with a better idea I have used your response and adjusted it. Welcome opinions from others of course but feel this should be sufficient to get what you need.

 

Case No: xxxxxx

MBNA Europe Bank Ltd –v- Peedee

Dear Sir or Madam

 

I am writing to oppose the claimants (MBNA Europe Bank Ltd.) application for Summary Judgment. The defendant would offer the following reasons in support of this request:

• The defendant submitted a defence via Northampton County Court on 24th February 2010
  
• The defendant consequently received confirmation from Northampton CC on 1st March 2010 that a defence had been filed
  
• The defendant was further informed that the claimant must contact the court within 28 days after receiving a copy of the defence. After that period has elapsed the claim will be stayed and the only action the claimant can then take will be to apply to a judge for an order lifting the stay
  
• On 4th June 2010 Northampton CC confirmed the case was now stayed
  
• On 30th July the defendant received a letter from Northampton CC stating that the case was being transferred to XXX County Court for Summary Judgement.
  

To date the defendant has not received any correspondence advising that an application has been made to lift the stay. This position was confirmed by XXX County Court on (INSERT DATE) during a telephone conversation.

The claimant to date has not made any application to have the stay lifted. To date the claimant has also failed to submit a response to the defence.

The defendant understands this case has been electronically transferred to the court for consideration of a Summary Judgment application and the case was likely to be heard this week.

 

Additionally the defendant has had no official notification of the hearing and has not received a copy of the Summary Judgment application from the Claimant or the Court.

Irrespective of the matters raised above the defendant wishes to draw attention to facts not addressed by the claimant, which should have been resolved in response to the submitted defence.

• The defendant avers that the default notice MBNA served does not comply with prescribed regulations and is therefore invalid.
  
• MBNA has failed to comply with a CPR31.14 request issued on the (INSERT DATE) for information needed by the defendant.
  
• The defendant maintains that documentation provided by the claimant is wholly illegible.
  
• The defendant also maintains such illegibility has resulted in essential prescribed terms being missing, which could render any agreement as unenforceable.
  
• ANY OTHER ISSUES CONCERNING THE CLAIM ITSELF ADD THEM TOO
  

Whilst these difficulties stand unaddressed and the processing of this claim remains subject to anomoly, Summary Judgment in favour of the claimant is wholly inappropriate.

 

In order to progress this matter the defendant would be grateful to the court for clarification as to the actual position of the claim as the court itself appears to be providing conflicting information as to the present status.

 

To date the defendant remains unaware of any change in the status of this claim and believes the stay granted on the (INSERT DATE) remains.

 

Perhaps add a statement of truth at the end as it will not hurt to include one. Sign it, make sure you print your name underneath for clarity and get it off immediately.

[emandcole]

Looks as if you've had plenty of others drop in since I started this which is great.

 

All the best with it, have no reason to believe you won't be successful given what you've told us

[emandcole]

I sent the email to my local county court today. I did a real belt and braces approach and sent the letter in the body of the email, a signed .pdf copy and also as a msword attachment!

 

I received acknowledgement that is had been received (not until 10.15am tho!) and it will be dealt with as soon as possible.

 

Fingers crossed they get it across to the judge in time..... Although I'm hoping that even if they don't I will have some sort of recourse - maybe I'm grasping at straws though!

 

Yes, the time limit was perhaps the immediate concern here but sounds as if you've done all you can given the late notification you had yourself. As for recourse there are options you can take but we'll cross that off if the need arises. Keep us posted ;-)

[emandcole]

Just a thought but should I be sending a copy of what I've submitted to my local county court today to Optima as well?

 

It won't hurt to do so. They are not blameless in this as they know they have not responded and do not have the right to benefit from the SJ. If you send it use recorded as it will act as a reminder to them and perhaps be useful to you in the future.

[emandcole]

How much is the fee that Optima would have to pay the court to apply for a judge to lift the stay?

 

It seems there are several Optima cases where the case has been stayed but Optima seem to have bypassed getting a stay lifted and the defendant out of the blue receives a letter from local court regarding SJ hearing, something doesnt seem right.

 

You're quite right, working on another Optima case and they certainly are fans of the sneaky sneaky. Its a pretty low type of legal practice if you ask me, they must go home at night feeling pretty proud of their days efforts

 

They're also chucking the Amex v Brandon case about like some sword of righteousness and attempting to mislead the less informed and less capable judges that a default notice doesn't matter if it's short on time.

 

Pretty funny I think, as by using such a case in support of an SJ they are as good as admitting the default notice they rely on to initiate litigation is indeed invalid.

 

Bit of an own goal there, just need to ensure the SJ application is robustly denied and point out that this case is subject to high court appeal (far as I know at least).

[emandcole]

An application has been lodged at the Court of Appeal but permission has yet to be granted. Fingers crossed that somebody sees sense!8-)

 

Thanks for confirming that Fluffy

 

and until which time (unfortuneately) the decision in brandon holds sway!, where there is a seperate termination clause

 

DD, can you elaborate on the termination clause at all? Is this a specific 'we will terminate the agreement' stated as one of the options the creditor reserved in the event that the payment demanded on the DN was not made?

 

Not understanding this as surely that is only an option once the 14 days has been given? A touch confused

[emandcole]

Hi Peedee, thanks for the PM. It seems they are determined to ignore you and push through, no real surprise here. Have had a quick look at the application you posted and although its pretty small I did notice that if it is for a credit card the haeding of the form is completely wrong. It looks as if it states it is a Credit Agreement Regulated by the CCA 1974.

 

A credit card is a different type of credit to a fixed sum credit deal with different prescribed terms, even the section they come under in the CCA is different, section 77 being for fixed sum credit like a personal loan and section 78 being for running credit.

 

The following would be useful for your defence.

 

-----------------------------------------------

In addition the term “Credit Agreement” is incorrect. This application form should actually be for a “Credit Card Agreement” which is a completely different form of credit with separate rules governing the exact layout and wording of terms.

The Consumer Credit (Agreements) Regulations 1983 state:

SCHEDULE 1

INFORMATION TO BE CONTAINED IN DOCUMENTS EMBODYING REGULATED CONSUMER CREDIT AGREEMENTS OTHER THAN MODIFYING AGREEMENTS

Regulation 2(1)

TYPE OF AGREEMENT INFORMATION

Nature of agreement

All types

(1) Subject to paragraph (2) below, a heading in one of the following forms of words—

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974"

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--"Credit Agreement regulated by the Consumer Credit Act 1974". The defendant would therefore argue that the agreement type has clearly been mis-stated as Credit Card Agreement is clearly applicable for running-credit agreements.

As the claimant is technically relying on an inaccurate credit agreement heading the claimant must also accept that a “Credit Agreement” must contain the following terminology to conform with form and content regulation. Once again with reference to The Consumer Credit (Agreements) Regulations 1983 a “Credit Agreement” must amongst other details and without exception contain:

The nature of the agreement (Covered above)

The term “Credit Limit” and not as this application shows, “Credit Value”. DELETE IF NOT

The Total Amount Payable

The Total Charge for Credit

Clearly a fixed sum Credit Agreement is very different to running-account credit. If the claimant insists they have a valid “Credit Agreement” these terms must be included. These terms are not to be found anywhere on the pre-contractual application.

 

-----------------------------------------

 

Another point to look at (if the application is just that and clearly states it is an application form) is to use the following as well.

 

-------------------------------------------

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.

 

------------------------------------------------------------------

 

If it clearly is an application form then the creditor at that point in time had the option of refusing your application and denying you credit. If they had that option on an application form (they wouldn't have that on an actual agreement as it is after all an agreement) then the above is appropriate.

 

As for what to do right now you could ignore them or you could write back asking them why they haven't complied with a number of issues they should have carried out. Why they didn't reply to the defence, why they didn't forward notification to you etc. The grounds for obtaining SJ are as follows.

 

Grounds for summary judgment

 

24.2

 

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue; or

 

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

 

 

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

 

(Rule 3.4 makes provision for the court to strike out(GL) a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim)

 

 

Clearly you have many issues they haven't resolved and technically they are not entitled to the SJ they seek, which is why they shouldn't get it. Personally I'd leave them to it, don't waste your time on them and focus on your defence. They'll issue rubbish and arrogance all day long, if thats what makes them happy let them get on with it.

[emandcole]

If it has been misstated then you can quote Wilson as to the importance of the agreement being correct. Take it this agreement/app was made before April 2007? If so section 127 still applies rendering the agreement unenforceable by the court, although the debt total would still stand until limitation kicks in and defaults drop off etc.

[emandcole]

The judge is important but most importantly if your issues are backed up in case law its less likely that a judge can introduce their own personal twist on things. Some judges are fantastic, truly superb and do things exactly to the letter of the law, others as you have read like to forget their role and make things up as they go along.

 

I suspect your 'agreement' would be unenforceable but until I can see a bigger picture of it I would reserve any final opinion until I can check for other bits. A .pdf copy would be great.

[emandcole]

Hi Peedee, first off click to reply as normal. When you get the box appear look for the 'Go Advanced' option as this gives you more to do. You'll notice along the top of the box where the font is etc that extra buttons will have appeared.

 

Click on the triangles next to the paperclip and you'll get another box open that allows you to add files. Get the .pdf off of your computer and we should be able to view it from there in your message once you've clicked 'Submit Reply'.

 

[emandcole]

Hi, yes did get a look but forgot to post back up! First of all the illegibility of the documentation they've sent you is poor. Such documents must be legible, if Optima argue these are fine then ask their representative to stand in court and read out a selection of text from the T&C's of your choice. Clearly you pick the worst bits, not that that will be hard to do!

 

The illegibility of the text means I cannot see where MBNA listed a clear charging schedule for any breach by you. As such if its not in there they had no right to charge you. Any resultant default notice amount is therefore inaccurate, as is the sum demanded in full by them now. Such sums should be returned to yoo along with statutory interest for each charge applied, preferably however you'd request that each charge is returned along with interest charged at the same rate they added to the account as this is greater than stat interest and only fair as they charged you at that rate.

 

The later T&C's provided does show a charge schedule of £18 (Section 13 - Charges) but as this amount still exceeds the £12 maximum the OFT ruled on it seems clear that Optima/MBNA have not provided you with all sets of T&C's as varied as they should have given you an up to date set of T&C's as well that would show a charge schedule of £12 per breach. If they've not included all terms as varied since inception of the account then they're still in breach of any original section 78 request made before litigation commenced. Hopefully you requested this info before they litigated? If not they still have a duty to provide you with an up to date set.

 

Attack the type of agreement as well, as detailed in my earlier posts. This agreement should be for a Credit Card Agreement and not a Credit Agreement. A Credit Card agreement is completely different, its a running account facility whereas a Credit Agreement is for a fixed sum as found in a personal loan etc. The prescribed terms are different.

[emandcole]

Hi Peedee, if I've not missed anything the fact that the account is terminated bears no real relation to the fact that paymemts can be made. Optima maintain there is a debt to clear and as such they are doing this via CCCS but have litigated in the hope of securing more from you, or by potentially obtaining a charge order to 'secure' the debt on something tangible.

 

Creditors like to turn unsecured debt into something more solid, don't know of course if a CO is relevant to you but assuming you have a mortgage or perhaps Optima might have been a touch slower to litigate? Either way a terminated account doesn't mean you can't pay on it, just means you've had the rights to use the facility withdrawn and the arrangment between each party has been cancelled indefinitely.

[emandcole]

The CO has been widely criticised in the recent months as too many were being used, it was becoming a default method for DCA's and was amounting to abuse to some extent.

 

Fortunately unless the debt is substantial it is unlikely that a court would order the sale of the house just to pay an unsecured debt, the implications are just too huge for the debtor and society in general to recover a small sum of money. The securing of a CO just gives the creditor a foothold on your assets and to some extent increases the debt portfolio so its easy to see why a creditor/DCA would go after one. Concentrate on your defence for now

[emandcole]

Bit out of touch with your case but hopefully you'd have done all of this if you'd submitted your defence. Quick reminder - where are you in the process at the moment and whats the latest?

[emandcole]

Ok ,thanks for that. Have had a quick refresh and although their particulars of claim could be a little better I suspect the court will consider them to be clear enough however...the claimant has failed to provide an account number on their particulars and this should be exposed - you need this! Optima should know to include something as basic as this.

 

Your defence appears to be based solely on:

 

 

• Insufficient POC details
  

 

• The fact you've had no documents supplied by the claimant.
  

Optima in their WS however state that although papers were not served with the claim (as it was an MCOL claim) you were then sent the paperwork you needed.

 

Was this the case and have you had any paperwork at all? If so please tell me what you've had so far.

 

If the SJ hearing is on the 15th October that's enough time to do some digging and re-submit where needed as the SJ hearing is based solely on documentary evidence, verbal evidence is not relied on unless the court specifically asks you a question. We therefore need good documentation!

 

Finally, was insurance added to this credit card?

[emandcole]

Ok, if you head to a SJ hearing with what you've submitted there's a very real chance of you losing...Optima have done a pretty smooth job of insisting all is wonderful and you are the awkward party.

 

So, you need to address the latest position and that is based on what you have been sent. You'll need to create a new witness statement to oppose the SJ application.

 

At the hearing (which you should try to attend) the judge will be primarily interested in written and documentary evidence, they may ask the odd question or two but the focus is on making a decision based on the documentation they have before them.

 

You need to demonstrate how the dispute is not suitable for disposal via SJ. This isn't too difficult to achieve, the main factors to concentrate would be incorrect sums claimed, incorrect statutory notification such as invalid defaults etc. Also, you state that you have already recovered charges that were in excess of £12.00? £12.00 isn't the 'allowed' amount at all, the OFT merely stated that it would not intervene or question any charge that didn't exceed this sum...hence the overnight adjustment in credit card charges. This means you can still question the £12 as being fair and not punitive...remember the OFT mess up with charges applied only to Bank Charges, not credit cards.

 

If the paperwork they have sent you is illegible this is also grounds for concern. To test if the paperwork is illegible you can ask the claimants representative to read out a section of the paperwork aloud...if they can't read this then you're off to a good start. However, at a SJ hearing it's unlikely you'll be able to do this so save that one for a hearing if you can oppose the initial SJ application.

 

I checked post 241 and oonly saw POCs ect and your defence. Are the T&C's scanned and available, agreement etc? If so please point me in the right direction. You have time to turn this around but you need to get on it asap!

[emandcole]

Ah, just found them. They're a disgrace! Remember your case now. You'll need to discredit these as wholly illegible and force the claimant to provide the originals as the supposed true copies are useless.

 

If you get started on the witness statament I'll have a look over what they've sent and give you a fe pointers to add to the WS.

[emandcole]

Agreement – Wrongly headed as a Credit Agreement, should be a Credit Card Agreement. As such the prescribed terms are different. Did I give you this information earlier? Let me know.

 

Agreement – Wholly illegible. State you are unable to determine the nature of the documents supplied by the claimant and as such you require the originals to be produced. If the claimant cannot provide the originals they must use the Civil Evidence Act Documents in Court to introduce hearsay evidence, application of which you wish to inspect.

 

If hearsay evidence is to be used you can question the Data Handling procedures of the claimant to put them to strict proof that what they have presented is indeed a true copy and bears a clear and documented data trail to the original.

 

Who destroyed the original? Why? Who gave permission for its destruction? Who made the copy? Who authorised this copy? Where has this copy been stored all these years and in what form? Who has accessed it and when? Lots of question they will find very hard to diffuse.

 

Is this agreement unsigned by you or is this where you’ve blanked it out?

 

The T&C’s appear to bear little relation to any agreement, attack them as illegible and generic.

 

If you cannot read the T&C’s how are they able to maintain they had any contractual right to apply default charges? Is there a clear table of charges as required by the CCA 1974?

 

These charges having been partially returned to you evidence the fact that the creditor abused the relationship, hence the refund. This compromised your ability to meet your end of the contract. Also, these charges render the amount listed on the Default Notice as inaccurate.

 

Have you been given a complete statement history so you can audit the account? If they’ve sent you partial history that’s not good enough. They are supposed to keep all records for up to 6 years after the end of the agreement.

 

The Default Notice itself is dated 4th December 2009, a Friday. Even it was posted on that date and sent first class it would not be deemed served until Tuesday the 8th December. The claimant demands arrears by the 21st, this gives you until the end of the 20th to pay. At best the claimant has only given you 12 clear days to pay, far short of the statutory 14 parliament intended.

 

Put them to strcit proof that first class service was used, if they cannot prove it was a first class service (with provision of proof of postage) then the law states second class service is assumed. This hacks another two days off of the time you are supposed to have had to provide remedy.

 

So, unless they can demonstrate first class was used MBNA gave you only 10 days to pay. The fact they then litigated confirms the account has been terminated, this means they have unlawfully rescinded the contract with you – something you are entitled to counter claim for.

 

This should be a good start. Get this together with the facts of the case only you know and post up what you’ve got. We’ll add some case law in there and then you can submit to prove SJ is wholly inappropriate.

[emandcole]

Thats ok, your mother is more important than stuff like this...it's only money and as my very wise grandfather always says 'There's no pockets in a shroud'.

 

However, where theres a chance of seeing something off like this we might as well. You have some time so don't go mad with it, the next week or so will be fine.