MBNA county court Summons " Help Please

[maroondevo52]

Hi, DizzieDiva2010.

 

Are you saying you want this thread split into two from post #15 onwards.

 

If so what title do you want ?

Edited May 13, 2010 by maroondevo52

[DizzieDiva2010]

Yes it is split in two.

 

My first thread, topic, was Vance Miller.

 

The second/current thread which is a separate issue is MBNA County Court Summons " Help Please " (this is the thread i want advice on right now)

 

Iv done something wrong somewhere along posting my threads sorry.

Edited May 13, 2010 by DizzieDiva2010
I would like my MBNA topic to be a separate thread starting from the first post if possible?

[maroondevo52]

Ok, thread split

[DizzieDiva2010]

Do you own your own property? MBNAs end game is to get judgement, THEN get an inhibition order on your property to prevent sale without them getting is disbursement.

 

What this means is, they charged you a quite high interest rate for an unsecured loan, yet they turn this into a secured loan, whilst benefiting from the higher interest rates. Because this does not become an issue until you lose, and they seek enforcement of their win, it isn;t a competent defence to be considered by the judge (but in the bigger picture, it would be).

 

Back to basics, have they exhibited to you that you have a properly executed agreement? If they don;t or cannot do this, you can unpick their master plan, so get a move on with this. Sob stories won;t move the judge, probably the best you can hope for is a delay before the axe falls, unless you can have the agreement thrown out.

 

 

I have my own house and im at the stage now where i need to submit an embarrassed defence.

 

I recieved a reply today to CPR 31.14 from Restons Solicitiors.

[DizzieDiva2010]

Reply & POC posted on here today. Nither MBNA or Restons have exhibited that i have a proper executed agreement as yet. Please read my POC posted on here, and let me know what you think please.

[DizzieDiva2010]

Ok, thread split

 

 

Thanku...

[wish me well]

Hi dizzie, ok sorry I havent been able to get back to you until now, did you post up the POC? I cant seem to see it anywhere.

 

Kindest wishes

 

WMW

[DizzieDiva2010]

How do i bump my thread up to the beginning, i really need some advise im running out of time & underneath my smiles very sad.

[wish me well]

Scrap that Dizzie, What the hell sort of POC is that, vague is not even the word for it.

 

No wonder they got away with that reply today, yes they are right, they are not relying on anything.

 

What a joke, embarrassed defence time.

 

Ok Dizzie, what was this debt for? was it a credit card?

 

WMW:)

[wish me well]

Dizzie, I dont know if you are aware but you need to hit the F5 button every now and again to refresh the page otherwise you wont see any responses you get.

[DizzieDiva2010]

Nothing to lose in Defending in whole Its your right as a UK citizen.

Its the only way to stop the CCJ by default, partial will allow them in and give rise of the option of applying for a CO later on.

 

Regards

 

Andy

 

My home

[wish me well]

Ok Dizzie, this is all I got, if it applys to you or you can make it work please read it, understand it, then use it.

 

It fits online so no expense in sending recorded delivery.

 

By the way, did you change your plea to defend all?

 

 

1. I xxxxxxx(your name) of xxxx(your address) am the defendant in this action and make the following statement as my defence to the claim made by xxxxxx(who ever the claimant is).

 

2. Except where explicitly stated below the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

4.1 The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the agreement referred to, the method the claimant calculated any outstanding sums due or any other matters necessary to substantiate the claimant's claim.

 

4.2 A copy of the purported written agreement and the terms and conditions applicable to the original agreement that the claimant would require to issue proceedings is not mentioned in the Particulars of Claim. Nor has any agreement been attached to the claim form.

 

4.3 A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

 

4.4 A Default Notice served under section 87(1) of the CCA, on the alleged account has not been served attached to the claim form.

 

a) I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendments and amendments regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

 

b) The defendant asserts that by commencing with legal action and making a demand for the main/full balance to the account/agreement in the statement of claim in this action, the claimant has terminated the account/agreement without first issuing/serving a valid default notice pursuant to legislation contained in s87/s88 of the Consumer Credit Act 1974, the defendant accepts the termination of the account/agreement by the claimant, and the defendant argues that by the claimant’s own actions has precluded himself from any of the benefits that would have of been available to the claimant under s87/s88 of The Consumer Credit Act 1974, therefore the claimant's only entitlement is for any arrears that the claimant can prove were owed/due payments before termination.

 

 

c) Furthermore, the defendant asserts that failure of a default notice to be accurate not only invalidates the default notice (Case law ruling - Woodchester Lease Management Services Ltd v Swain and Co [2001] - GCCR 2255) but also prevents the court from enforcing any alleged debt, but would give the defendant, in this action, cause for a counter claim against the claimant for damages as per the ruling in Kpohraror v Woolwich Building Society [1996] 4 ALL ER 119.

 

d) I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer.

 

e) Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

f) An invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on xxxxxx(enter the date on the court summons). Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

6. The claimant did not send a letter before action as

required under the Pre-Action Protocols.

 

7. The defendant requested information referred in the claim under CPR 31.14 and 18 from the claimant by Royal Mail Special Delivery. The request was received by the claimant on thexxxxxxxxxx(enter the date they received it), compliance with the requests has now expired. The claimant responded with a letter stating that they did not need to proved any documents as they were no documents listed in the Particulars of Claim. The defendant wishes to make the court aware that the claimant is trying to frustrate proceedings and denying the defendant an opportunity to file a defence and counter claim

 

8. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

 

9. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The claimant is put to strict proof as to how the sums claimed have been calculated, whether the amount claimed contains unlawful default and interest charges and as to how it is asserted that the sums claimed are contractually owing."

 

 

Conclusion

The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

I respectfully request that the court consider striking out the claim under CPR 3.4.2© because, in light of the failure to respond to the CPR 31.14 and 18 request, the Claimant is unable to substantiate their claim with documentary evidence.

 

 

If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

As laid out in section 4 the defendant requires that the claimant provide the requested information, proofs and authenticity. The defendant requests that the court order that the claimant supply the information requested under CPR 31.14. and 18

 

Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, it is submitted that the Claimant's behaviour is entirely vexatious and wholly unreasonable and that this claim has no basis in law.

 

I respectfully request the courts permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim.

 

Dizzie, not all of this defence will be relevant to your case but if no one else offers any assistance at least you will have something to submit.

 

Kindest wishes

 

WMW

 

ps I am well aware that it is a self help forum but I dont care, I have been in this situation and when time is ticking and nearly at the eleven hour, well its just not on.

 

I do hope you can make use of this dizzie.

[wish me well]

Anyone reading, the POC is relying on nothing as far as I can see, surly there is a better defence that just knocks them out of the playing field from the start?

 

Anyone??

 

WMW

[AndyOrch]

My home

 

 

Now you are being daft at worst they get a CCJ

 

 

Andy

[DizzieDiva2010]

Thank you very much. I will read it now

[DizzieDiva2010]

Now you are being daft at worst they get a CCJ

 

 

Andy

 

 

Maybe Andy, but every situation is different isn't it. If past luck is anything to go by, then my future doesn't look promising.

 

Im sorry for being negative, im having a bad day.

 

Once they get their CCJ, Restons have told me they will be applying for a Charging Order to secure their money.

 

The problem is im not best at understanding all this information all at once and although im willing to fight it, im very scared at the same time. The thought of having to face court and not understanding my defence stops me sleeping at night.

 

All iv done is read this forum, to gain knowledge, plus iv bought the book on here, of which im waiting for it to arrive.

 

Iv taken the time also today to email a couple of solicitors, because i feel desparate.

[buzby]

Now you are being daft at worst they get a CCJ

 

 

Andy

 

Really? Clearly you've not experience their tactics. They secure the debt on any property owned. It is company policy.

[wish me well]

Dizzie, once you submit your defence you get a little more breathing space to try and take in more. Please try not to let this control everything.

 

I really understand just how scared and upset you are, we are here for you and will not sit back and watch you fall.

 

I am hoping that someone who I know will be along shortly to maybe shorten that defence for you but if you need help understanding just ask.

 

Ok love, try not to worry too much

 

Kindest wishes

 

WMW

[DizzieDiva2010]

Dizzie, I dont know if you are aware but you need to hit the F5 button every now and again to refresh the page otherwise you wont see any responses you get.

 

 

No i wasn't aware of the "refresh button" thank you so much wish me well

[The Mould]

Thank you for your responce. This is a very distressing time for me at the moment.

 

I completed the acknowledgment of service form earlier. I intend to defend part of my claim. Im not sure if i should have choose that option having not been given any advice ???

 

I have been left with a few debts so this is all getting on top of me and im finding it difficult to keep on top of by myself.

 

What next??

 

 

Hello there DizzieDiva,

 

I am just starting to read your thread, have you sent that acknowledgement off?

 

I will carry on reading and see what can be done.

 

Kind Regards

 

The Mould

[AndyOrch]

I fully understand and appreciate the thoughts that are going through your mind.Most of the members here on Cag have been in your situation many times and when you are new to litigation it is very daunting.The process is quite simple if you do not defend in full you allow an automatic CCj by default.By defending you play the game, most of the creditors really cant be bothered to fight defences its costs money and time.There are different outcomes to all cases,if you show fight and determination they will come to an agreement before trial l(in most cases) and accept a payment plan,this is known as a Tomlin Order.avoids the CCJ and you get your arrangement as you wished in the first place.

If it goes to trial or if they apply for Summary Judgment you will fight it on the points you have raised and if you are unsuccessful you will get a CCJ for 6 years.

When the CCJ is granted the DJ will either make the judgment forthwith (ie you pay in one lump sum) if you are not in a position to pay you immediately request a redetermination (vis a vis N245) and submit an I&E.A monthly payment will be set by the DJ that s affordable and realistic to yourself.

Now one a redetermination is in place providing you adhere to it and never default no application for a CO can be made as I have stated earlier in your thread.

So Dizzie try to put this in some perspective and stop thinking the worst passable scenario.There are ways and means of avoiding a CCJ and providing you attack this in the right manner,I'm positive you will come out smiling.

 

Regards

 

Andy

Edited May 13, 2010 by Andyorch

[wish me well]

Right Dizzie

 

I am sure that the claimant must have to provide some sort of document, I am going to try and find a defence that covers pathetic POC.

 

I will be back shortly, Ooh and other people will hopefully be able to contribute aswell so you will be sorted to get a defence in and relax for a few days.

[DizzieDiva2010]

Dizzie, once you submit your defence you get a little more breathing space to try and take in more. Please try not to let this control everything.

 

I really understand just how scared and upset you are, we are here for you and will not sit back and watch you fall.

 

I am hoping that someone who I know will be along shortly to maybe shorten that defence for you but if you need help understanding just ask.

 

Ok love, try not to worry too much

 

Kindest wishes

 

WMW

 

I understand where your coming from but its hard not to worry. I am a newbie to all this. I have always paid my credit cards & loan right up until i no longer had any funds. They really dissapoint me infact. I have always been a good payer until recently, and as soon as you start to fall in the gutter they no longer want to know!

Appreciate all your help.

[AndyOrch]

Really? Clearly you've not experience their tactics. They secure the debt on any property owned. It is company policy.

 

Impossable if an application for redetermination is made.Thats the law.

 

 

 

Regards

 

Andy

[DizzieDiva2010]

Impossable if an application for redetermination is made.Thats the law.

 

 

 

Regards

 

Andy

 

Andy, have you taken a look at my POC, default notice & Restons reply today?

 

I havn't changed my plea as yet because i have to submit my defence along with it & i havn't got one yet, although " wish me well " has posted one that im reading now.

 

After submiting my defence what are my next steps, in order for me to prepare ?