CCJ - defence due - please help!

[citizenB]

Right, all done, got my proofs of postage and recorded delivery slips for all 3 letters. I was most impressed with the size of the first class stamps the Post Office put on the envelopes - no proof of postage issues with those!

 

So, now to dates. I will be tracking my 3 letters and, assuming they are delivered tomorrow (being Friday 9 July) and Saturday 10 and Sunday 11 are included in the 7, 14 and 40 day requests, am I correct in thinking that the deadline dates to receive information will be as follows:

 

CPR 31.14 to Optima Legal - 7 days from receipt - due date Friday 16 July

CPR 18 to Optima Legal - 14 days from receipt - due date Friday 23 July

SAR to MBNA - 40 days from receipt - due date Wednesday 18 August

 

Also, Optima Legal defaulted on my S78 request by not responding within the 12 + 2 days, and, on the last day it was possible for them to comply, they responded by returning my cheque for £1 and telling me to request the information directly from MBNA. I had to remind Optima of S175 of the CCA 1974 and the following day (dated Thursday 1 July) I received a letter from Optima saying that they were dealing with my request (the cheque for £1 was banked on Monday 5 July) and that they required a further 21 days to comply with my request from the date of receipt of my letter (which would have been 1 July 2010). I would hope to receive this information from them by Thursday 22 July 2010. Is it worth mentioning in my defence that the one request I made in plenty of time (on 15 June 2010) was not complied with in the correct time scale, and further mentioning that Optima Legal cannot simply set timescales to suit themselves once they have already defaulted on a legal deadline?

 

You should be able to track your letters online via the RM Website. You should print off the proof of delivery and signatures and attach them to your letters. Sometimes you will see that the letter has been delivered but they havent yet scanned in the signatures.. so always go back a few days later if this is the case.

 

Morning Wycombe! Thanks for the support.

 

In respect of whether or not I received a letter for action, I have attached all correspondence between Optima and myself for review by CAGers. I do not think that any of it constitutes a letter before action and that this should be used in my defence, if my understanding is correct.

 

I would not interpret that letter as a "Letter before Action". As far as I can see, they are confirming a telephone confirmation that you would be paying £10.00 per month.. then TELLING you that they would be seeking at some future date to obtain a charging order on your property.

 

A Letter before Action should state quite clearly that monies are owed and how much. That unless you adhere to a certain action ie pay up, then within 7 days they will be issuing a claim.

 

Others may see this differently.

 

Righto, your embarrassed defence.

 

 

 

 

Claim Number:

 

Between

 

MBNA Europe Bank Limited Claimant

 

And

 

Defendant

 

Defence

 

1. I, ......................... ......................... ........, am the Defendant in this action and make the following statement as my defence to the claim made by MBNA Bank Europe Ltd.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimants' Particulars of Claim and put the Claimant to strict proof thereof.

 

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 Court’s attention to the following matters:

 

a) 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 written contracts referred to; the method the Claimant calculated any outstanding sums due, or any other matters necessary to substantiate the Claimant’s claim.

 

b) A copy of the purported written contracts that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) Even though the Claimaint posted what they claim to be a more detailed Particulars of Claim after issuing their online claim. No documents were attached to the claim form.

 

 

d) The Claimant has brought this action without fair warning in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received.

 

5 On 15 June 2010 the Defendant submitted a request via first class mail pursuant to S.77-79 of the Consumer Credit Act 1974 (“CCA 1974”) for copies of any Consumer Credit Agreements purported to be the Defendants to the Claimant’s solicitor.

a) The Claimant’s solicitor wrote to the Defendant on 28 June 2010 stating that the Defendant should approach the Claimant directly for this information. The Defendant wrote to the Claimant’s solicitor on 30 June 2010 and referred them to Section 175 of the CCA 1974.

b) The Claimant’s solicitor replied on 1 July 2010 advising that they require a further 21 days from the date of receipt of the Defendant’s letter (believed by the Defendant to be 1 July 2010) in order to provide the information required. The Claimant has frustrated the Defendant by failing to fulfil the S.77-79 request within the recognised time limits.

 

6. On 8 July 2010 the Defendant submitted requests under CPR 18 and CPR 31.14 via First Class Recorded Delivery for copies of the agreements, copies of all statements since inception of the accounts, in order to assess if the sum claimed is accurate and any other documentation that the Claimant is relying upon in pursuit of this claim. The time limits in respect of these requests have not yet expired.

 

7. The Claimant is put to strict proof of the date of mailing of any Default Notices that they claim were sent and that their content was valid. 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 a document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

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 is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - (1996 4 All ER 119).

 

8. I respectfully ask the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents.

 

Statement of Truth

 

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

 

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

 

Date..................... ......................... .................

 

 

 

 

I have added a couple of things (highlighted) and reformatted for you. Do not have any bold or underlined text in your defence. If you need to highlight something, then make it a sub paragraph I have re formatted your defence.

 

Hope this helps :grin:

[Chipmeister]

Ah, citizenB thank you, you are a true star. I will reformat and add in the bits in blue!

 

I can now get my embarrassed defence filed today and not have to worry about missing deadlines.

 

Do you think my defence has too many characters to fit in the on line defence section though?!

 

Also, do I need to do the unlawful recission letter please, as I am referring to unlawful recission in my defence.

Edited July 9, 2010 by Chipmeister
added info

[citizenB]

Hold on a sec and I will see how many characters there are for you..

[citizenB]

You are ok, with spaces there are 4,259 characters and you are allowed 8,000.

 

You wont need to put in the court details at the top or the statement of truth at the bottom as they are already formatted into the online document.

 

Ugh.. the unlawful recission. You really need to speak to vint1954 or diddydicky about that.. Send them a private message with a link to your thread and question.. They will be only to pleased to assist you on their pet subject..

 

What did wycombe do ?

[Chipmeister]

You are ok, with spaces there are 4,259 characters and you are allowed 8,000.

 

You wont need to put in the court details at the top or the statement of truth at the bottom as they are already formatted into the online document.

 

Ugh.. the unlawful recission. You really need to speak to vint1954 or diddydicky about that.. Send them a private message with a link to your thread and question.. They will be only to pleased to assist you on their pet subject..

 

What did wycombe do ?

 

Splendid, many thanks for helping the hopeless!! Will go and file my defence the minute I have finished this post!

 

Have pm'd vint1954 and diddydicky. Not sure whether Wycombe did the unlawful recission letter or not - I think Dizzie did though.

[Chipmeister]

Right folks, defence filed and extreme relief from this corner. Now to take a leaf out of Wycombe's book and keep on the ball and learning as much as I can.

 

I have printed out a copy of my defence which I will send to Optima Legal today via first class mail. I know it may not be strictly necessary, but I'd like to show how well I'm following procedures. ;-)

[wycombe]

Splendid, many thanks for helping the hopeless!! Will go and file my defence the minute I have finished this post!

 

Have pm'd vint1954 and diddydicky. Not sure whether Wycombe did the unlawful recission letter or not - I think Dizzie did though.

 

No - I did not do the unlawful recission bit!

 

Well done so far CM. With CitizenB's invaluable help you are now well on track.

[Chipmeister]

Thanks Wycombe!

 

But would you credit it - I'm so relieved about filing my defence and thinking perhaps I can at least have a worry-free weekend and guess what? Completely out of the blue I receive a yellow "WARNING!" card from Allied International Credit (UK) stating that their client (Barclays Partner Finance) has issued a Formal Demand for the full balance outstanding (oh no they haven't!) The oddest thing about this is that Barclays Partner Finance are included in my Debt Managment Plan and have been since 2007. Anyway, this is not the place, if you want to follow these adventures here's the thread: :grin:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/267064-allied-intl-credit-advice.html#post3024691

[wycombe]

This par for the course. I also have several creditors all issuing threatograms - MBNA being the only one who has issued Court proceedings so far. Worry about the most important - the one who is actually taking you to court until you have something else to worry about - ie someone else bunging a summons your way!

[Chipmeister]

This par for the course. I also have several creditors all issuing threatograms - MBNA being the only one who has issued Court proceedings so far. Worry about the most important - the one who is actually taking you to court until you have something else to worry about - ie someone else bunging a summons your way!

 

Well, when that happens at least I'll know what to do!!

[wycombe]

Well, when that happens at least I'll know what to do!!

 

Spot on CM:).

[citizenB]

Right folks, defence filed and extreme relief from this corner. Now to take a leaf out of Wycombe's book and keep on the ball and learning as much as I can.

 

I have printed out a copy of my defence which I will send to Optima Legal today via first class mail. I know it may not be strictly necessary, but I'd like to show how well I'm following procedures. ;-)

 

You didnt need to send Optima a copy of the defence. The court will do that for you.

[Chipmeister]

Oh, I thought I had to send it to them as well as the Court doing it. Oh well, they'll find out the good news soon enough!!!

[citizenB]

Oh, I thought I had to send it to them as well as the Court doing it. Oh well, they'll find out the good news soon enough!!!

 

No, the only time you would need to send them a copy of anything is if say you were putting in an amended defence or witness statement, but even then you can always ask the court first if they send them or if it is your responsibility to.

[Chipmeister]

Thanks for the clarification on that citizenB.

 

Incidently, I am disappointed to note that Royal Mail have not yet delivered any of the 3 letters I sent by recorded delivery on Thursday 8 July requesting my SAR, CPR 31.14 and CPR18. At this rate they'll have received the defence from the court (or myself) and read about it there before they see the requests! Not impressed

[citizenB]

Thanks for the clarification on that citizenB.

 

Incidently, I am disappointed to note that Royal Mail have not yet delivered any of the 3 letters I sent by recorded delivery on Thursday 8 July requesting my SAR, CPR 31.14 and CPR18. At this rate they'll have received the defence from the court (or myself) and read about it there before they see the requests! Not impressed

 

 

There are a lot of complaints regarding RM's recorded delivery service. However, if you sent them on 8th July 2010 then chances are they wont be delivered until Monday.

 

Recorded delivery uses 1st class (or 2nd) service but claims that you will get a signature. In reality this service is only any good for residential addresses.

 

Letters sent to PO box addresses rarely get a signature for an individual letter because there will be a bulk delivery and the mail room will take receipt of several letters but only one signature. So in a lot of cases there will only ever be shown on RM website that the letter was delivered.

 

I guess all you can fall back on is .... if the letter wasnt returned, then it was delivered. The main thing is that you have proof that you posted it.

[Chipmeister]

I've learnt a valuable lesson here - send everything first class special delivery signed for. I know my recordeds went first class because of the size of the stamps the Post Office put on them!

 

On the plus side, none of the 3 letters had PO Boxes in their addresses so I would hope to get a proper signature for all 3 individual letters.

[wycombe]

You will find special delivery an expensive option particularly if you are sending lots of letters. First Class recorded should be fine - you can prove the item was sent unlike the opposition who never seem to use any form of Recorded mail for anything. If you find they have not been delivered by tomorrow I would get onto Royal Mail and complain.

 

Saying that if an item is very time sensitive then Special Delivery is the only option to deliver documents. But remember the opposition is almost 100% likely to use the ordinary mails (probably 2nd class at that) to respond to you. So you may get items there fast but not get the response sent in as timely a manner!

[Chipmeister]

You will find special delivery an expensive option particularly if you are sending lots of letters. First Class recorded should be fine - you can prove the item was sent unlike the opposition who never seem to use any form of Recorded mail for anything. If you find they have not been delivered by tomorrow I would get onto Royal Mail and complain.

 

Saying that if an item is very time sensitive then Special Delivery is the only option to deliver documents. But remember the opposition is almost 100% likely to use the ordinary mails (probably 2nd class at that) to respond to you. So you may get items there fast but not get the response sent in as timely a manner!

 

But that is surely a good thing - if I am proving how seriously I am taking the matters by sending everything first class and recorded signed for and the opposition are not... your honour, please, the claimant has instigated action but not seen fit to deal with the seriousness by responding even via first class mail!

 

I am hoping that I won't have to send SARs etc to any other creditors. I suspected from the start that MBNA and Barclays were always going to be the tricky ones, and so far I have been proved right. At least in the case of Barclays I have had a heads up from AIC and move forward immediately with my SAR and CPR requests, just in case the worst should happen.

 

One final question, assuming my letters are signed for tomorrow, which will be Monday 12 July, am I correct in thinking I SHOULD receive responses no later than:

 

Monday 19 July - CPR 31.14 from Optima

Monday 26 July - CPR 18 from Optima

SATURDAY 21 August - SAR from MBNA?

 

Presumably it would be unreasonable of me to expect a response from MBNA on a Saturday, but then I'm not in charge of the dates Royal Mail decided to deliver my recorded delivery letters!!

[wycombe]

In theory the dates you should get a response by are correct. But be prepared in case you do not get a satisfactory response in those time frames. In any defence statement or witness statement you make be prepared to argue that Optima are procrastinating and thus prejudicing your ability to prepare your defence/WS. As soon as anything is signed for print off the proof and attach to the documents sent and note dates items are received by.

[Chipmeister]

In theory the dates you should get a response by are correct. But be prepared in case you do not get a satisfactory response in those time frames. In any defence statement or witness statement you make be prepared to argue that Optima are procrastinating and thus prejudicing your ability to prepare your defence/WS. As soon as anything is signed for print off the proof and attach to the documents sent and note dates items are received by.

 

Brilliant Wycombe, thanks for confirming my understanding of the dates.

 

I am indeed prepared in the event of not getting responses by those dates - the plan is to have follow-up letters ready to send on Tuesday 20 July etc etc. I do need to find a template for follow up letters though, so if that could be provided for me I'd be very grateful. Thanks!

 

Should I not receive the responses via the deadlines, must the follow up letters also be sent by recorded delivery? Just to know, as I am about to start eating into this weeks' shopping budget for postal costs!

 

Never fear, I am ready to jump on any missed deadlines and I will ensure that all relevant info relating to signed for is printed off and put straight onto my case file. Which is filling rapidly.

 

Hope all is going ok with you Wycombe?

[wycombe]

It's good to detect a note of optimism in your posts. Soon you will be boring the pants off all your friends by quoting the CCA 1974 verbatim to them!!

 

With me I'm dotting the i's and crossing the t's on my WS which I will post up later today for comments and observations. Despite thinking I have checked everything thoroughly there are always the odd typos and other errors that slip through. Fortunately other eagle eyed cagers usually point these out to me:)!

 

With all letters to the opposition use Recorded - they cannot then deny receipt or ignorance of your requests. If Optima are anything like Reston's they may try and tell you black is white and vice versa (deny you the info you seek through some kind of bluster) so be prepared to dash off a letter berating them for not complying with your CPR requests.

Edited July 11, 2010 by wycombe

[Chipmeister]

Well, I've been through all the panicky bit and then realised that it is what it is, I can fight for my rights or let the beggars flatten me. So I'm fighting for my rights - whatever the outcome I can always say I didn't just lie down and take what they dished out!

 

I'm expecting some great letters from Optima - they seem incapable on the whole of responding to anything personally - they always use a standard template which generally doesn't address any point you've issued!

 

Glad to hear WS is going well - I will have a look at your thread and have of read of the WS. Not that I will be able to offer assistance, but as you are slightly ahead of me in the process it will be good to have the knowledge ready for when I do get there!

[citizenB]

You will find special delivery an expensive option particularly if you are sending lots of letters. First Class recorded should be fine - you can prove the item was sent unlike the opposition who never seem to use any form of Recorded mail for anything. If you find they have not been delivered by tomorrow I would get onto Royal Mail and complain.

 

Saying that if an item is very time sensitive then Special Delivery is the only option to deliver documents. But remember the opposition is almost 100% likely to use the ordinary mails (probably 2nd class at that) to respond to you. So you may get items there fast but not get the response sent in as timely a manner!

 

 

Yes, it can be incredibly expensive sending letters by Special Delivery.. you need to identify those letters that are the most important, ie court documents, recorded delivery should suffice for a lot of correspondence.. I think putting something like

 

"This letter has been sent via Royal Mail Recorded Delivery" in bold type at the bottom of your letters makes the recipient aware that you will be able to prove at the very least that you have posted something.. even if it does get lost.

 

For general correspondence I would normally just use 1st class post, but for absolutely everything sent this way, I always obtain a free proof of of posting slip from the post office.

 

It is important, IMHO, to be able to prove something has been sent.. in that way if it hasnt been returned to you. chances are it HAS been delivered.

[Chipmeister]

OH MY GOD!!!! I have just been looking at my credit record. In respect of my MBNA accounts, the defaults are registered on both accounts on 31 March 2010.

 

The default notices are both dated 9 April 2010 - surely this means my accounts were terminated before the default notices were even printed!!

 

What does this mean for my case, can my credit report be used as evidence??