Slevin V Mbna

[CoventryCrusader]

Hi...

 

im new to this site but not to another Forum (Nov 2008)

 

i have added a link (hope it is acceptable to do so)

 

Slevin V Mbna (virgin)

 

i was searching around the web as i like to do , doing some homework on MBNA and Optima and came across some very useful and interesting info

 

on the following thread i found that Langster had come across my case and had made refereence to it so this really caught my attention. Hence my joining the forum

 

Bornrich v MBNA

 

i would very much like to correspond with Langster

[Dotty50]

Hi CC

 

The link works to the other forum but unless you register, you are unable to the any attachments.

 

Can you post them up here?

[CoventryCrusader]

there are many documents to attach, will do so later on when i have an hour or two to spare lol

[Dotty50]

That's what becomes of using another forum CC!

 

I CBA to register! lol

[CoventryCrusader]

hi

 

i need to sit down and write my witness statement tonight as it needs to be with the court and optima by mon 28th 4pm

 

can any one point em to some examples of witness statements on this site please

 

Frank

[CoventryCrusader]

hi. ive been up all night trying to do my witness statement im about 80 % there with it. will finish tomorrow, im tired and need to sleep im due in work in less than 31/2 hours

 

could some one please check and see if i am doing ok. do i need to beef it up with some case law? any suggestions

 

 

 

 

 

 

 

 

Claim No. XXXXXX

 

 

IN THE COVENTRY COUNTY COURT

 

 

BETWEEN

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MBNA EUROPE BANK LIMITED

Claimant

 

 

-and-

 

 

 

 

XXXXXXXX

Defendant

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1st WITNESS STATEMENT OF

xxxxxxxxx

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Address

Address

Address

Coventry

 

1. I, XXXXXX of xxxxxxxxxxxxx, Coventry, CVX XXX, being the Defendant, am a litigant in person in this case.

 

2. I make this Witness Statement in support of my defence against the Claimants claim against me.

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

4. It is accepted that I made an application for an MBNA Gold Advantage Credit Card on 11/09/1997, regulated by the Consumer Credit Act 1974. On or about this time a Credit Card was issued to me

 

 

5. I deny that I signed a Credit Card Agreement between MBNA Europe and myself. I do not have a copy of any alleged agreement.

 

6. I was made redundant from my employment in July 2008 and due to financial hardship I was unable to maintain the minimum payments requested on the monthly statements received by me from MBNA Europe Bank Limited. In November 2008 I wished to see what options were available to me in regards to negotiating a payment plan with MBNA.

 

 

7. On the 20/11/2008 I wrote to MBNA requesting a true and signed copy of any alleged agreement. This is my right under legislation contained within Section 78 (1) of the Consumer Credit Act 1974 (section 77(1) for rolling sum credit). I paid the appropriate fee of £1.00

 

 

8. The Consumer Credit Act 1974 s78(1) and its associated Regulations state that, inter alia;

78 Duty to give information to debtor under running-account credit agreement


 
(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
 
The Consumer Credit Act 1974 s78(6) then specifies that the consequences of failure to comply with such a request are that the creditor is not entitled to;
78
(6) If the creditor under an agreement fails to comply with subsection (1)—
(a) he is not entitled, while the default continues, to enforce the agreement; and
(b) if the default continues for one month he commits an offence.

 

 

 

9. On the 15/12/2008 I receivedin returna set of documents which were incomplete and did not include all of the prescribed terms this made them unenforceable, even in a court of law.I responded to MBNA in writing

 

 

 

 

 

 

 

 

10. In an effort to gain a resolution to this matter, on 30/01/2009, I made an application under The Data Protection Act 1998 for a full Subject Access Report. This I believed would produce a copy of any agreement that was alleged. Also within my request I asked to be supplied with information regarding any documentation that had not been retained along with MBNA's method used for disposal of such information to comply with the Data Protection Act stating the name and contact information of their Data Controller and Code Compliance Officer. This information is still outstanding and is crucial to my defence in relation to MBNA being able to satisfy an audit trail

11. The response from MBNA, of 12/03/2009, did not include a copy of any original Credit Card Agreement. It did however include the following statement

 

“ Due to archive retrieval issues a copy of the original agreement for account 555 555555 555 5555 is unavailable”

 

 

This would infer that the original document does exist but can not be found.

 

 

12. I received a Notice of Legal Action from Optima Legal dated 15/04/2009 in which they notified me that they had been instructed on behalf of MBNA . As legal action had been threatened by Optima Legal I made a request under the Civil Procedures Rules for all the information that would be relied upon in an impending court action to both MBNA and Optima Legal.

 

 

I specifically asked for a copy of the actual executed agreement including signature

 

 

13.I received no reply from MBNA . The response from Optima Legal was that they were unable to reply to me and that they had passed my request onto their client, MBNA. This I feel was being obstructive as Optima Legal had made the threat of legal action but were not prepared to adhere to the Civil Procedure Rules. This was putting me at a distinct disadvantage to any potential legal action as it was preventing me from being on an equal footing and would put an unnecessary burden to the courts resources.

 

 

14.A second request for information under the Civil Procedure Rules was made to Optima Legal on 20th July 2009 requesting the outstanding information. Again the requested information was not forthcoming and I was advised by a letter of 24/07/2009, that Optima Legal would continue with legal proceedings within 7 days to obtain the full payment.

 

 

15.I Again made a request under Civil Procedure Rules for a copy of the actual executed agreement including signature. At no time in response to these specific requests was I made aware that the Agreement in question had been destroyed.

 

 

16. I received a Default Notice from MBNA dated 22/06/2009. The balance stated on the notice included a number of charges to the account for late payments in the sum of £25.00 and interest charged these sums . These charges are penalty charges and are legally reclaimable. This would mean that the balance stated is incorrect, therefore Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but also is an unlawful rescission of contract.

 

 

17. On or about 03/08/2009 I received The Particulars of Claim from the Northampton Bulk Centre. The Claimants Particulars of Claim were vague and insufficiently particularised and Importantly they did not include a copy of the alleged agreement.

 

 

18. I again requested a copy of the actual executed agreement including signature.

 

 

19. I subsequently made a defence and counterclaim to the court and additionally completed an Allocation Questionnaire.

 

 

20.Optima legal wrote to me on 10/09/2009 acknowledging my request for a copy of the agreement and confirmed

“ Our client has requested a copy of the agreement from the department that stores the agreements and a copy shall be forwarded to you as soon as it has been recieved”

 

 

As in paragraph 11. above this again would imply that a copy exists.

 

 

21 Optima legal again wrote to me on 30/12/2009 and included a reconstituted copy of the alleged agreement and some Terms & Conditions which they claim were applicable at the time the agreement was alleged to have been entered into. Firstly a reconstituted agreement does not suffice as an original agreement must be produced to the court to enable them to enforce it. Secondly the Terms & Conditions can not be from September 1997 as in Clause 3, Key information, states that charges will be made of £12.00 each time a payment is unpaid. This scale of fees only came into force in 2006. Also I have statements which show that charges of £25.00 have been charged to the account.

 

 

22. Also within in this letter Optima Legal stated

 

 

“ Our client is willing to consider any proposals for settlement of the debt you may have “

 

 

23. Although I do not acknowledge the debt, In order to avoid length proceedings and waste the courts valuable time I made a written offer without prejudice, liability or admission to settle the account and asked that I receive acceptance by 15/01/2010. This being the last working day before the case management hearing due to take place on 18/01/2010. This letter was posted by signed for delivery. I did not receive an acknowledgement or reply.

 

 

24.On Friday 15/01/2010, 3 days prior to the case management hearing to take place on Monday 18/01/2010, I received a witness statement from Optima Legal that was to be presented at the case management hearing. Once again I was put at a distinct disadvantage and was not able to seek legal advice over the weekend.

 

 

25 The witness statement was made by Nageena Kauser , an employee of Optima legal. The witness statement claimed

 

 

“4.2 The defendant states in his defence that he has requested a copy of the Credit Agreement (the Agreement) from the claimant, however. He has not been provided with a copy. The claimant has been unable to obtain a copy of the defendants agreement as once the Agreement was received by the claimant from the defendant, the Agreement was scanned onto the claimants computer system and destroyed. The claimant does not have a copy of the Agreement in its possession and is unable to produce it to the court.”

 

 

If this statement is true then it is in complete contradiction to the above paragraphs 11 & 20. and would indicate that both MBNA and Optima Legal have deliberately tried to give the impression that an Agreement exists and would be supplied.

 

 

Also attached to the witness statement were Nageena Kauser's exhibits marked NK1 which was a unsigned reconstituted copy of an agreement and Terms & Conditions which were claimed to be the originals from 1997 but showed fees of £12.oo which came into force in 2006.

It should be noted that as Nageena Kauser is an employee of Optima Legal and not MBNA she could not possibly be aware of the process for handling applications and agreements in place at MBNA in November 1997. This would mean that she would have either been given a document supplied by MBNA to advise of their process or has had verbal instruction from an unnamed 3rd party.

 

 

26.The Case Management Hearing was adjourned

 

 

27. The Case Management Hearing resumed on 21/04/2010. Prior to the hearing I was supplied with another witness statement made by Nageena Kauser. The witness statement claimed

 

 

“7. The Claimants agreements are stored in a separate department . As the storage company was unable to provide a copy of the original agreement, the claimants unique reference number was obtained. Each template agreement is given a unique reference number known as a source code so that it can be individually identified and tracked to the date of use. From the source code identified, the claimant was able to locate copy agreements made with other customers with the same source code as the Agreement issued to the defendant”

 

 

Again Nageena Kauser appears to have a great understanding of the processes of MBNA considering she does not work for them.

 

 

This witness statement contradicts the statement made earlier. Only one of these witness statements can be true and no explanation has been given for this .

 

 

If it is the case that the processes have changed at some point then MBNA must be put to strict proof of the documents to support this with dates of the changes.

 

 

28. The Case Management Hearing concluded and was allocated to a full hearing.

 

 

29. Included within the orders of District Judge Kesterton made on 21/04/2010 was that

 

 

“Each party shall give to the other party standard disclosure of documents by servicing a list of documents [ by serving copy documents with a disclosure statement ] by 4.00p.m. On 17th May 2010 “

 

 

Optima Legal sent the required documents to me with a covering letter dated 1/06/2010. They therefore failed to submit them within the time instructed. This is in contravention of CPR part 3.4,2 ( C ). This was bought to the attention of the judge.

[CoventryCrusader]

ive added to the above witness statement..have i done the right thing

 

i would be grateful of some advice please

 

 

 

 

 

 

 

 

Claim No. XXXXXXXX

 

 

 

 

IN THE XXXXX COUNTY COURT

 

 

BETWEEN

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MBNA EUROPE BANK LIMITED

Claimant

 

 

-and-

 

 

 

 

XXXXXXXXXX

Defendant

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1st WITNESS STATEMENT OF

XXXXXXXX

 

 

 

 

 

 

 

 

 

 

 

 

 

 

XXXXXX Road

XXXXXXXX

Coventry

CVX 6XX

 

 

 

 

 

1. I, XXXXXXX of XXXXXX Road, XXXXXX, Coventry, CVX 6XX, being the Defendant, am a litigant in person in this case.

 

2. I make this Witness Statement in support of my defence against the Claimants claim against me.

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

4. It is accepted that I made an application for an MBNA Gold Advantage Credit Card on 11/09/1997, regulated by the Consumer Credit Act 1974. On or about this time a Credit Card was issued to me

 

 

5. I neither admit or deny that I signed a Credit Card Agreement, as mentioned in the claimants Particulars of Claim,between MBNA Europe and myself. I do not have a copy of any alleged agreement and MBNA has not provided me with a copy of an original agreement including a signature.

 

6. I was made redundant from my employment in July 2008 and due to financial hardship I was unable to maintain the minimum payments requested on the monthly statements received by me from MBNA Europe Bank Limited. In November 2008 I wished to see what options were available to me in regards to negotiating a payment plan with MBNA.

 

 

7. On the 20/11/2008 I wrote to MBNA requesting a true and signed copy of any alleged agreement. This is my right under legislation contained within Section 78 (1) of the Consumer Credit Act 1974 (section 77(1) for rolling sum credit). I paid the appropriate fee of £1.00

 

 

8. The Consumer Credit Act 1974 s78(1) and its associated Regulations state that, inter alia;

78 Duty to give information to debtor under running-account credit agreement


 
(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
 
The Consumer Credit Act 1974 s78(6) then specifies that the consequences of failure to comply with such a request are that the creditor is not entitled to;
78
(6) If the creditor under an agreement fails to comply with subsection (1)—
(a) he is not entitled, while the default continues, to enforce the agreement; and
(b) if the default continues for one month he commits an offence.

 

 

 

9. On the 15/12/2008 I receivedin returna set of documents which were incomplete and did not include all of the prescribed terms this made them unenforceable, even in a court of law.I responded to MBNA in writing to this effect.

 

 

10. In an effort to gain a resolution to this matter, on 30/01/2009, I made an application under The Data Protection Act 1998 for a full Subject Access Report. This I believed would produce a copy of any agreement that was alleged. Also within my request I asked to be supplied with information regarding any documentation that had not been retained along with MBNA's method used for disposal of such information to comply with the Data Protection Act stating the name and contact information of their Data Controller and Code Compliance Officer. This information is still outstanding and is crucial to my defence in relation to MBNA being able to satisfy an audit trail

11. The response from MBNA, of 12/03/2009, did not include a copy of any original Credit Card Agreement. It did however include the following statement

 

“ Due to archive retrieval issues a copy of the original agreement for account XXXX XXXX XXXX XXXX is unavailable”

 

 

This would infer that the original document does exist but can not be found.

 

 

12. I received a Notice of Legal Action from Optima Legal dated 15/04/2009 in which they notified me that they had been instructed on behalf of MBNA . As legal action had been threatened by Optima Legal I made a request under the Civil Procedures Rules for all the information that would be relied upon in an impending court action to both MBNA and Optima Legal. I specifically asked for a copy of the actual executed agreement including signature

 

 

13.I received no reply from MBNA . The response from Optima Legal was that they were unable to reply to me and that they had passed my request onto their client, MBNA. This I feel was being obstructive as Optima Legal had made the threat of legal action but were not prepared to adhere to the Civil Procedure Rules. This was putting me at a distinct disadvantage to any potential legal action as it was preventing me from being on an equal footing and would put an unnecessary burden to the courts resources.

 

 

14.A second request for information under the Civil Procedure Rules was made to Optima Legal on 20th July 2009 requesting the outstanding information. Again the requested information was not forthcoming and I was advised by a letter of 24/07/2009, that Optima Legal would continue with legal proceedings within 7 days to obtain the full payment.

 

 

15.I Again made a request under Civil Procedure Rules for a copy of the actual executed agreement including signature. At all times in their response to these specific requests I was advised that the copy of the original Agreement would be forthcoming.

 

 

16. I received a Default Notice from MBNA dated 22/06/2009. The balance stated on the notice included a number of charges to the account for late payments in the sum of £25.00 and interest charged these sums . These charges are penalty charges and are legally reclaimable. This would mean that the balance stated is incorrect. The Default notice claims that I breached clause 8 of the Terms & Conditions. As MBNA has not been able to supply me with a set of Terms & Conditions that were applicable at the time of the alleged agreement I put them to strict proof I made such a breach.

 

 

For these reasons the Default notice is not accurate. Failure of a default notice to beaccurate not only invalidates the default notice but also is an unlawful rescission of contract. The case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 sets out the importance of a valid default notice and confirms the consequences of non-compliance.

 

 

 

 

17. On or about 03/08/2009 I received The Particulars of Claim from the Northampton Bulk Centre. The claimant's statement of case fails to comply with the requirements of CPR part 16 and practice direction 16 insofar that this claim is based upon a written contract namely a regulated credit agreement regulated by the Consumer Credit Act 1974 and as such the Civil Procedure Rules requires that a copy of the written contract be served with the claim. However the claimant still has not supplied the defendant with a copy of the agreement which the claimant bases this claim upon.

 

 

18. I again requested a copy of the actual executed agreement including signature.

 

 

19. I subsequently made a defence and counterclaim to the court and additionally completed an Allocation Questionnaire.

 

 

20.Optima legal wrote to me on 10/09/2009 acknowledging my request for a copy of the agreement and confirmed

“ Our client has requested a copy of the agreement from the department that stores the agreements and a copy shall be forwarded to you as soon as it has been received”

 

 

As in paragraph 11. above this again would imply that a copy exists.

 

 

21 Optima legal again wrote to me on 30/12/2009 and included a reconstituted copy of the alleged agreement and some Terms & Conditions which they claim were applicable at the time the agreement was alleged to have been entered into. Firstly, The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 78 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.. Secondly the Terms & Conditions can not be from September 1997 as in Clause 3, Key information, states that charges will be made of £12.00 each time a payment is unpaid. This scale of fees only came into force in 2006. Also I have statements which show that charges of £25.00 have been charged to the account.

 

 

22. Also within in this letter Optima Legal stated

 

 

“ Our client is willing to consider any proposals for settlement of the debt you may have “

 

 

23. Although I do not acknowledge the debt, In order to avoid length proceedings and waste the courts valuable time I made a written offer without prejudice, liability or admission to settle the account and asked that I receive acceptance by 15/01/2010. This being the last working day before the case management hearing due to take place on 18/01/2010. This letter was posted by signed for delivery. I did not receive an acknowledgement or reply.

 

 

24.On Friday 15/01/2010, 3 days prior to the case management hearing to take place on Monday 18/01/2010, I received a witness statement from Optima Legal that was to be presented at the case management hearing. Once again I was put at a distinct disadvantage and was not able to seek legal advice over the weekend.

 

 

25 The witness statement was made by Nageena Kauser , an employee of Optima legal. The witness statement claimed

 

 

“4.2 The defendant states in his defence that he has requested a copy of the Credit Agreement (the Agreement) from the claimant, however. He has not been provided with a copy. The claimant has been unable to obtain a copy of the defendants agreement as once the Agreement was received by the claimant from the defendant, the Agreement was scanned onto the claimants computer system and destroyed. The claimant does not have a copy of the Agreement in its possession and is unable to produce it to the court.”

 

 

26. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

27. As a credit agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

28. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

29 Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

 

If this statement is true then it is in complete contradiction to the above paragraphs 11 & 20. and would indicate that both MBNA and Optima Legal had earlier deliberately tried to mislead me into believing that an Agreement exists and would be supplied.

 

 

30.Also attached to the witness statement were Nageena Kauser's exhibits marked NK1 which was a unsigned reconstituted copy of an agreement and Terms & Conditions which were claimed to be the originals from 1997 but showed fees of £12.00 which came into force in 2006.

31. It should be noted that as Nageena Kauser is an employee of Optima Legal and not MBNA, she could not possibly be aware of the process for handling applications and agreements in place at MBNA in November 1997. This would mean that she would have either been given a document supplied by MBNA to advise of their process or has had verbal instruction from an unnamed 3rd party.

 

 

32.In paragraph 10 above I have already mentioned I had previously requested to be supplied with information regarding any documentation that had not been retained along with MBNA's method used for disposal of such information to comply with the Data Protection Act.This request is still outstanding.

 

 

33The Case Management Hearing was adjourned

 

 

34 The Case Management Hearing resumed on 21/04/2010. Prior to the hearing I was supplied with another witness statement made by Nageena Kauser. The witness statement claimed

 

 

“7. The Claimants agreements are stored in a separate department . As the storage company was unable to provide a copy of the original agreement, the claimants unique reference number was obtained. Each template agreement is given a unique reference number known as a source code so that it can be individually identified and tracked to the date of use. From the source code identified, the claimant was able to locate copy agreements made with other customers with the same source code as the Agreement issued to the defendant”

 

 

Again Nageena Kauser appears to have a great understanding of the processes of MBNA considering she does not work for them.

 

 

35.This witness statement contradicts the statement made earlier. Only one of these witness statements can be true and no explanation has been given for this .If it is the case that the processes have changed at some point then MBNA must be put to strict proof of the documents to support this with dates of the changes.

 

 

36 The Case Management Hearing concluded and was allocated to a full hearing.

 

 

37.Included within the orders of District Judge Kesterton made on 21/04/2010 was that

 

 

“Each party shall give to the other party standard disclosure of documents by servicing a list of documents [ by serving copy documents with a disclosure statement ] by 4.00p.m. On 17th May 2010 “

 

 

Optima Legal sent the required documents to me with a covering letter dated 1/06/2010. This was outside of the allocated time by some 15 days. They therefore failed to submit them within the time instructed. This is in contravention of CPR part 3.4,2 ( C ). This was bought to the attention of the judge.

 

 

38.The standard disclosure of documents sent by Optima legal consist of the following;

Reconstituted credit agreement

Current Terms & Conditions

Original Terms & Conditions

Default Notice

Credit Card Statements – various

System notes dated 17/06/2009 – 23/07/2009

 

 

The reconstituted credit agreement is irrelevant as only the original will suffice to enable MBNA to enforce the agreement through the court. The Terms & Conditions which are claimed to be the original ones show charges of £12.00 which as discussed in paragraph 21 above can not be from 1997

 

 

39.Also within this same letter Optima Legal state

 

 

“ we have previously advised you that our client is unable to provide you with a copy of the original signed credit agreement. This due to the fact that when the signed credit agreement is received by MBNA, this is scanned onto their computer system and then destroyed”

 

 

This is going back on the amended witness statement of Nageena Kauser as discussed in the above paragraph 34. So Nageena Kauser has made two witness statements contradicting herself with conflicting statements of truth and now Optima Legal are contradicting her latest witness statement

 

 

40. Optima legal have also disclosed that it is their intention to rely upon the recent Judgement of His Honour Judge Waksman QC in Carey v HSBC [2009] EWHC 3417 (QB). This judgement relates to the creditors obligations under S77/78 requests only and does not change anything on enforceability issues.I would like to draw your attention to the Judges introduction on page 4 para 1as this will show that this judgement only refers to requests for copies of credit card agreements pursuant to section78. This is not the claim being made

 

INTRODUCTION

 

 

1. This judgement deals with two matters concerning requests for copies of credit card agreements pursuant to section 78 of the Consumer Credit Act 1974 (“the Act”) and the consequences of non-compliance with that provision. The first matter is the determination of six preliminary issues of law, arising in a number of selected cases. The second is the application by two of the Defendant banks to strike out or to obtain under CPR 24 the summary dismissal of certain claims brought against them on the basis of no reasonable grounds and/or abuse of process and/or no real prospect of success (“the Applications”).
   

 

 

 

 

 

 

A reconstituted agreement does not have a signature so can not be enforced in court as things stand on agreements entered into dated before April 2007. I believe this is a deliberate attempt to mislead both the court and myself by misquoting and omitting key words, sentences and phrases.

 

 

41. I wrote to Optima Legal on 6/06/2010 advising them that their disclosure of documents was late and a breach of CPR part 3.4,2 ( C ).

 

 

42.I also advised them that they had misquoted and omitted key words, sentences and phrases from the above referenced Waksman Judgement. I also corrected the key omissions. So that there could be no future misunderstanding by Optima Legal in reference to this judgement I printed out the judgement in its entirety and forwarded it to them. If MBNA wish to rely on the afore mentioned judgement to support their claim then they should be put to strict proof of the relevant points/paragraphs they wish to rely on.

 

 

43. The claimants statement of case still fails to comply with the requirements of CPR part 16 insofar that this claim is based upon a written contract , namely a regulated credit agreement , regulated by the Consumer Credit Act 1974 and as such the Civil Procedure Rules require that a copy of the written contracts be served with the claim. However the claimant still has not supplied the defendant with a copy of the agreement which the claimant bases this claim upon.

 

 

44. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

45 The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

46 These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

 

47 In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

48. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched

 

 

49 This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

 

 

50. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

 

 

 

51 If the claimant cannot supply a document signed by the creditor and debtor, easily legible and containing the prescribed terms per schedule 6 column 2 of SI 1983/1553 the agreement cannot be enforced. If the claimant asserts that it can provide proof that the monies have been used by the defendant and therefore even in the absence of the credit agreement the debt should be repaid then I quote the House of Lords in Wilson -v- FCT "lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable" this clearly outlines that even if it is the case that the lender has loaned the monies to the debtor, if he does not comply with the CCA 1974, he cannot seek and equitable remedy and stands to lose the monies loaned

 

52 Further more I refer to Sir Andrew Morritt's judgment in Wilson and FCT [2001] EWCA Civ 633 in the Court of Appeal at Para 26

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 ss 65(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;

 

 

 

53 Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one

 

for the attention of the court I reproduce schedule 3 section 11

 

 

11The repeal by this Act of-

(a) The words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© The words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

I xxxxxx the Defendant, believe the facts stated within this Witness Statement to be true.

 

 

 

Signed .....................

 

 

Dated …..................

[CoventryCrusader]

ive added to the above witness statement..have i done the right thing

 

i would be grateful of some advice please

 

 

 

 

 

 

 

 

Claim No. XXXXXXXX

 

 

 

 

IN THE XXXXX COUNTY COURT

 

 

BETWEEN

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MBNA EUROPE BANK LIMITED

Claimant

 

 

-and-

 

 

 

 

XXXXXXXXXX

Defendant

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1st WITNESS STATEMENT OF

XXXXXXXX

 

 

 

 

 

 

 

 

 

 

 

 

 

 

XXXXXX Road

XXXXXXXX

Coventry

CVX 6XX

 

 

 

 

 

1. I, XXXXXXX of XXXXXX Road, XXXXXX, Coventry, CVX 6XX, being the Defendant, am a litigant in person in this case.

 

 

2. I make this Witness Statement in support of my defence against the Claimants claim against me.

 

 

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

 

 

4. It is accepted that I made an application for an MBNA Gold Advantage Credit Card on 11/09/1997, regulated by the Consumer Credit Act 1974. On or about this time a Credit Card was issued to me

 

 

5. I neither admit or deny that I signed a Credit Card Agreement, as mentioned in the claimants Particulars of Claim,between MBNA Europe and myself. I do not have a copy of any alleged agreement and MBNA has not provided me with a copy of an original agreement including a signature.

 

6. I was made redundant from my employment in July 2008 and due to financial hardship I was unable to maintain the minimum payments requested on the monthly statements received by me from MBNA Europe Bank Limited. In November 2008 I wished to see what options were available to me in regards to negotiating a payment plan with MBNA.

 

 

7. On the 20/11/2008 I wrote to MBNA requesting a true and signed copy of any alleged agreement. This is my right under legislation contained within Section 78 (1) of the Consumer Credit Act 1974 (section 77(1) for rolling sum credit). I paid the appropriate fee of £1.00

 

 

 

8. The Consumer Credit Act 1974 s78(1) and its associated Regulations state that, inter alia;

1. 78 Duty to give information to debtor under running-account credit agreement

   
    
   

   
    
   

   The Consumer Credit Act 1974 s78(6) then specifies that the consequences of failure to comply with such a request are that the creditor is not entitled to;
   78
   (6) If the creditor under an agreement fails to comply with subsection (1)—
   (a) he is not entitled, while the default continues, to enforce the agreement; and
   (b) if the default continues for one month he commits an offence.

   
   

   (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

   
   

 

 

 

9. On the 15/12/2008 I receivedin returna set of documents which were incomplete and did not include all of the prescribed terms this made them unenforceable, even in a court of law.I responded to MBNA in writing to this effect.

 

 

10. In an effort to gain a resolution to this matter, on 30/01/2009, I made an application under The Data Protection Act 1998 for a full Subject Access Report. This I believed would produce a copy of any agreement that was alleged. Also within my request I asked to be supplied with information regarding any documentation that had not been retained along with MBNA's method used for disposal of such information to comply with the Data Protection Act stating the name and contact information of their Data Controller and Code Compliance Officer. This information is still outstanding and is crucial to my defence in relation to MBNA being able to satisfy an audit trail

 

11. The response from MBNA, of 12/03/2009, did not include a copy of any original Credit Card Agreement. It did however include the following statement

 

“ Due to archive retrieval issues a copy of the original agreement for account XXXX XXXX XXXX XXXX is unavailable”

 

 

This would infer that the original document does exist but can not be found.

 

 

12. I received a Notice of Legal Action from Optima Legal dated 15/04/2009 in which they notified me that they had been instructed on behalf of MBNA . As legal action had been threatened by Optima Legal I made a request under the Civil Procedures Rules for all the information that would be relied upon in an impending court action to both MBNA and Optima Legal. I specifically asked for a copy of the actual executed agreement including signature

 

 

13.I received no reply from MBNA . The response from Optima Legal was that they were unable to reply to me and that they had passed my request onto their client, MBNA. This I feel was being obstructive as Optima Legal had made the threat of legal action but were not prepared to adhere to the Civil Procedure Rules. This was putting me at a distinct disadvantage to any potential legal action as it was preventing me from being on an equal footing and would put an unnecessary burden to the courts resources.

 

 

14.A second request for information under the Civil Procedure Rules was made to Optima Legal on 20th July 2009 requesting the outstanding information. Again the requested information was not forthcoming and I was advised by a letter of 24/07/2009, that Optima Legal would continue with legal proceedings within 7 days to obtain the full payment.

 

 

15.I Again made a request under Civil Procedure Rules for a copy of the actual executed agreement including signature. At all times in their response to these specific requests I was advised that the copy of the original Agreement would be forthcoming.

 

 

16. I received a Default Notice from MBNA dated 22/06/2009. The balance stated on the notice included a number of charges to the account for late payments in the sum of £25.00 and interest charged these sums . These charges are penalty charges and are legally reclaimable. This would mean that the balance stated is incorrect. The Default notice claims that I breached clause 8 of the Terms & Conditions. As MBNA has not been able to supply me with a set of Terms & Conditions that were applicable at the time of the alleged agreement I put them to strict proof I made such a breach.

 

 

For these reasons the Default notice is not accurate. Failure of a default notice to beaccurate not only invalidates the default notice but also is an unlawful rescission of contract. The case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 sets out the importance of a valid default notice and confirms the consequences of non-compliance.

 

 

 

 

17. On or about 03/08/2009 I received The Particulars of Claim from the Northampton Bulk Centre. The claimant's statement of case fails to comply with the requirements of CPR part 16 and practice direction 16 insofar that this claim is based upon a written contract namely a regulated credit agreement regulated by the Consumer Credit Act 1974 and as such the Civil Procedure Rules requires that a copy of the written contract be served with the claim. However the claimant still has not supplied the defendant with a copy of the agreement which the claimant bases this claim upon.

 

 

18. I again requested a copy of the actual executed agreement including signature.

 

 

19. I subsequently made a defence and counterclaim to the court and additionally completed an Allocation Questionnaire.

 

 

20.Optima legal wrote to me on 10/09/2009 acknowledging my request for a copy of the agreement and confirmed

 

“ Our client has requested a copy of the agreement from the department that stores the agreements and a copy shall be forwarded to you as soon as it has been received”

 

 

As in paragraph 11. above this again would imply that a copy exists.

 

 

21 Optima legal again wrote to me on 30/12/2009 and included a reconstituted copy of the alleged agreement and some Terms & Conditions which they claim were applicable at the time the agreement was alleged to have been entered into. Firstly, The claimant would be aware of the fact that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 78 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.. Secondly the Terms & Conditions can not be from September 1997 as in Clause 3, Key information, states that charges will be made of £12.00 each time a payment is unpaid. This scale of fees only came into force in 2006. Also I have statements which show that charges of £25.00 have been charged to the account.

 

 

22. Also within in this letter Optima Legal stated

 

 

“ Our client is willing to consider any proposals for settlement of the debt you may have “

 

 

23. Although I do not acknowledge the debt, In order to avoid length proceedings and waste the courts valuable time I made a written offer without prejudice, liability or admission to settle the account and asked that I receive acceptance by 15/01/2010. This being the last working day before the case management hearing due to take place on 18/01/2010. This letter was posted by signed for delivery. I did not receive an acknowledgement or reply.

 

 

24.On Friday 15/01/2010, 3 days prior to the case management hearing to take place on Monday 18/01/2010, I received a witness statement from Optima Legal that was to be presented at the case management hearing. Once again I was put at a distinct disadvantage and was not able to seek legal advice over the weekend.

 

 

25 The witness statement was made by Nageena Kauser , an employee of Optima legal. The witness statement claimed

 

 

“4.2 The defendant states in his defence that he has requested a copy of the Credit Agreement (the Agreement) from the claimant, however. He has not been provided with a copy. The claimant has been unable to obtain a copy of the defendants agreement as once the Agreement was received by the claimant from the defendant, the Agreement was scanned onto the claimants computer system and destroyed. The claimant does not have a copy of the Agreement in its possession and is unable to produce it to the court.”

 

 

26. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

27. As a credit agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

 

28. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

 

29 Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

 

If this statement is true then it is in complete contradiction to the above paragraphs 11 & 20. and would indicate that both MBNA and Optima Legal had earlier deliberately tried to mislead me into believing that an Agreement exists and would be supplied.

 

 

30.Also attached to the witness statement were Nageena Kauser's exhibits marked NK1 which was a unsigned reconstituted copy of an agreement and Terms & Conditions which were claimed to be the originals from 1997 but showed fees of £12.00 which came into force in 2006.

 

31. It should be noted that as Nageena Kauser is an employee of Optima Legal and not MBNA, she could not possibly be aware of the process for handling applications and agreements in place at MBNA in November 1997. This would mean that she would have either been given a document supplied by MBNA to advise of their process or has had verbal instruction from an unnamed 3rd party.

 

 

32.In paragraph 10 above I have already mentioned I had previously requested to be supplied with information regarding any documentation that had not been retained along with MBNA's method used for disposal of such information to comply with the Data Protection Act.This request is still outstanding.

 

 

33The Case Management Hearing was adjourned

 

 

 

34 The Case Management Hearing resumed on 21/04/2010. Prior to the hearing I was supplied with another witness statement made by Nageena Kauser. The witness statement claimed

 

 

“7. The Claimants agreements are stored in a separate department . As the storage company was unable to provide a copy of the original agreement, the claimants unique reference number was obtained. Each template agreement is given a unique reference number known as a source code so that it can be individually identified and tracked to the date of use. From the source code identified, the claimant was able to locate copy agreements made with other customers with the same source code as the Agreement issued to the defendant”

 

 

Again Nageena Kauser appears to have a great understanding of the processes of MBNA considering she does not work for them.

 

 

35.This witness statement contradicts the statement made earlier. Only one of these witness statements can be true and no explanation has been given for this .If it is the case that the processes have changed at some point then MBNA must be put to strict proof of the documents to support this with dates of the changes.

 

 

36 The Case Management Hearing concluded and was allocated to a full hearing.

 

 

37.Included within the orders of District Judge Kesterton made on 21/04/2010 was that

 

 

“Each party shall give to the other party standard disclosure of documents by servicing a list of documents [ by serving copy documents with a disclosure statement ] by 4.00p.m. On 17th May 2010 “

 

 

Optima Legal sent the required documents to me with a covering letter dated 1/06/2010. This was outside of the allocated time by some 15 days. They therefore failed to submit them within the time instructed. This is in contravention of CPR part 3.4,2 ( C ). This was bought to the attention of the judge.

 

 

38.The standard disclosure of documents sent by Optima legal consist of the following;

Reconstituted credit agreement

Current Terms & Conditions

Original Terms & Conditions

Default Notice

Credit Card Statements – various

System notes dated 17/06/2009 – 23/07/2009

 

 

The reconstituted credit agreement is irrelevant as only the original will suffice to enable MBNA to enforce the agreement through the court. The Terms & Conditions which are claimed to be the original ones show charges of £12.00 which as discussed in paragraph 21 above can not be from 1997

 

 

39.Also within this same letter Optima Legal state

 

 

“ we have previously advised you that our client is unable to provide you with a copy of the original signed credit agreement. This due to the fact that when the signed credit agreement is received by MBNA, this is scanned onto their computer system and then destroyed”

 

 

This is going back on the amended witness statement of Nageena Kauser as discussed in the above paragraph 34. So Nageena Kauser has made two witness statements contradicting herself with conflicting statements of truth and now Optima Legal are contradicting her latest witness statement

 

 

40. Optima legal have also disclosed that it is their intention to rely upon the recent Judgement of His Honour Judge Waksman QC in Carey v HSBC [2009] EWHC 3417 (QB). This judgement relates to the creditors obligations under S77/78 requests only and does not change anything on enforceability issues.I would like to draw your attention to the Judges introduction on page 4 para 1as this will show that this judgement only refers to requests for copies of credit card agreements pursuant to section78. This is not the claim being made

 

 

INTRODUCTION

 

 

1. This judgement deals with two matters concerning requests for copies of credit card agreements pursuant to section 78 of the Consumer Credit Act 1974 (“the Act”) and the consequences of non-compliance with that provision. The first matter is the determination of six preliminary issues of law, arising in a number of selected cases. The second is the application by two of the Defendant banks to strike out or to obtain under CPR 24 the summary dismissal of certain claims brought against them on the basis of no reasonable grounds and/or abuse of process and/or no real prospect of success (“the Applications”).
   

 

 

 

 

 

 

A reconstituted agreement does not have a signature so can not be enforced in court as things stand on agreements entered into dated before April 2007. I believe this is a deliberate attempt to mislead both the court and myself by misquoting and omitting key words, sentences and phrases.

 

 

41. I wrote to Optima Legal on 6/06/2010 advising them that their disclosure of documents was late and a breach of CPR part 3.4,2 ( C ).

 

 

42.I also advised them that they had misquoted and omitted key words, sentences and phrases from the above referenced Waksman Judgement. I also corrected the key omissions. So that there could be no future misunderstanding by Optima Legal in reference to this judgement I printed out the judgement in its entirety and forwarded it to them. If MBNA wish to rely on the afore mentioned judgement to support their claim then they should be put to strict proof of the relevant points/paragraphs they wish to rely on.

 

 

43. The claimants statement of case still fails to comply with the requirements of CPR part 16 insofar that this claim is based upon a written contract , namely a regulated credit agreement , regulated by the Consumer Credit Act 1974 and as such the Civil Procedure Rules require that a copy of the written contracts be served with the claim. However the claimant still has not supplied the defendant with a copy of the agreement which the claimant bases this claim upon.

 

 

44. I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

45 The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus,

signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

46 These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

 

47 In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

48. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched

 

 

49 This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

 

 

50. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

 

 

 

51 If the claimant cannot supply a document signed by the creditor and debtor, easily legible and containing the prescribed terms per schedule 6 column 2 of SI 1983/1553 the agreement cannot be enforced. If the claimant asserts that it can provide proof that the monies have been used by the defendant and therefore even in the absence of the credit agreement the debt should be repaid then I quote the House of Lords in Wilson -v- FCT "lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched. That would be inconsistent with the parliamentary intention in rendering the entire agreement unenforceable" this clearly outlines that even if it is the case that the lender has loaned the monies to the debtor, if he does not comply with the CCA 1974, he cannot seek and equitable remedy and stands to lose the monies loaned

 

52 Further more I refer to Sir Andrew Morritt's judgment in Wilson and FCT [2001] EWCA Civ 633 in the Court of Appeal at Para 26

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 ss 65(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;

 

 

 

 

53 Should the issue of the repeal of section 127(3) be brought before the court, it is drawn to the courts attention that schedule 3 of Consumer credit Act 2006 prevents section 15 of the CCA 2006 from having effect on agreements made before 6th April 2007 such as this one

 

for the attention of the court I reproduce schedule 3 section 11

 

 

11The repeal by this Act of-

(a) The words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

(b) Subsections (3) to (5) of that section, and

© The words "or 127(3)" in subsection (3) of section 185 of that Act, has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

 

 

 

 

 

 

 

Statement of Truth

 

I xxxxxx the Defendant, believe the facts stated within this Witness Statement to be true.

 

 

 

Signed .....................

 

 

Dated …..................

[Dotty50]

CC, you may get more help if you move it to the legal forum but it may just be a little late to ask for help here, without any history.

 

Sorry I cannot assist but at least it gives it a bump.

[pompeyfaith]

deleted

Edited July 5, 2010 by pompeyfaith

[CoventryCrusader]

Hi PF...can you add a link to it or let me know what post number in your thread i can find it

 

thanks

Frank

[pompeyfaith]

Slevin its not on the forum due to the size of it so if you can dump an email addy in my pm box ill send it on just of out now to the hospital so ill check soon as i get back PF

[citizenB]

16. I received a Default Notice from MBNA dated 22/06/2009. The balance stated on the notice included a number of charges to the account for late payments in the sum of £25.00 and interest charged these sums . These charges are penalty charges and are legally reclaimable. This would mean that the balance stated is incorrect. The Default notice claims that I breached clause 8 of the Terms & Conditions. As MBNA has not been able to supply me with a set of Terms & Conditions that were applicable at the time of the alleged agreement I put them to strict proof I made such a breach.

 

The only query I have is that highlighted in red. Should it read "NOT legally reclaimable" ?

 

[pompeyfaith]

these charges are legally reclaimable under the UTTCR 1999 SECTION 5 as they are an unfair bargain

[citizenB]

these charges are legally reclaimable under the UTTCR 1999 SECTION 5 as they are an unfair bargain

 

Hi PF,

 

Righto, I see. I think however it can be read two ways.

 

They are legally reclaimable by the defendant for the reason above or

 

they are NOT legally reclaimable by the Claimant for the same reason

[CoventryCrusader]

thanks every one

 

they need to be there by 4pm monday. i know i have missed the post so i am embarking on a 240 mile round trip on monday to deliver by hand and get them signed for. cant wait to see them eye to eye..

 

i do hope they have remembered to post their statement to me to arrive by 4 pm monday or i will have to inform the judge of their failing to adhere to his direction (again)

[pompeyfaith]

citizenb sorry confusion i mean't reclaimable by the defendant slevin are you keeping track of the costs and time spent preparing youq docs

[pompeyfaith]

nice statement and plenty of breaches of cpr part 1 which is true to optima's form

[CoventryCrusader]

they never sent their witness statement to me until 4 days after the date ordered by the judge......yes, another own goal...they are really making themselves look incompetent

[pompeyfaith]

hiya cc they are playing true to form then hehe i bet the contents are not much probably poorly put together too

[pompeyfaith]

i would now be filling at court if you have time a supplimental ws oh and this is very important be sure to call witness from mbna it is important because they will not show neather will optima they had it to a barrister to deal with

[CoventryCrusader]

Hi PF

 

just to keep you in the loop

 

along with the Witness statement was

 

a part 36 offer....im ignoring that

 

part 18 request for info. ive written back to say i can not submitt the documents they requested as they were in my briefcase which was stolen , reported to police, have a crime number for

 

the witness statement is by your old friend Dianne Powell. (she has managed to spell her name corrctly this time) it is week as p*** . refers to lots of their system nots . lol

 

also sent a letter to the judge requesting a strke out under cpr

 

Power to strike out a statement of case

 

3.4

 

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out(GL) a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

© that there has been a failure to comply with a rule, practice direction or court order.

 

he probably wont but it is worth a try

 

do you know how i go about requesting a witness to appear at court? do i write to the judge or do i have to submitt a form and pay a fee?

 

Frank

[CoventryCrusader]

PF

 

sorry about my spelling in above post...it is a subtle joke refering to Dianne Powels poor spelling of her own name in your witness statement

[pompeyfaith]

she is the person you need to call along with the signatory of those WS from optima not sure how you do it because i never had the chance in my case due to unforseen circumstances

 

I would phone the court manager to claify this point

 

Good luck and well done

[CoventryCrusader]

thanks ... what is the latest situation with you?

 

are you stil paying your £20 per month. ?