'BOS>MBNA>Hilisden/DLC/Aplins vs Littlbert

[littlebert8]

Edited - duplicate post

Edited July 29, 2010 by littlebert8

[littlebert8]

Any comments?

I really need to send this today as I have had the clam form for nearly a week.

[unclebulgaria67]

I would say OK. Just make sure that there is nothing in the request outside of part 18.

[littlebert8]

I've taken out the bit about section 31.14, but put it in the cover letter. I don't want to confuse the Part 18, but I want them to know that I will request the documents anyway, so they should served them with the response.

 

I saw the reference to PD 16 in an example Part 18 on a law book, so I reckon thats OK. If they respond to my request, they cant hide behind the exemption for Northampton electronically issued claims.

 

To be honest, I don't think they will respond. I just need to be able to demonstrate to the court that I have attempted to get clarification.

[citizenB]

+++++ Mods - please move to 'Legal Issues' - claim received ++++++++

 

N1 arrived today, POC as follows:

 

"The Claimants's [sic] claim against the defendant is for the amount due and unpaid at todays date under a regulated running monthly credit account."

 

The amount claimed is over £5K.

 

The POC is a joke - couldn't be vaguer if they tried. I'm wondering how to defend as I think to plead 'embarrassed' would actually give them too much credit. It really is taking the **** - it shows no cause of action whatsoever.

 

I'm thinking of asking for strike out or order to re-plead a fully particularised claim.

 

I am not quite sure what is going on Bert. IMHO, I would have requested that they replead their claim.

 

If you are still in a position to do so.. go for the following.

 

The defence prevents a default judgement being awarded against you.

 

 

 

DEFENCE

 

1. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

**************************************

 

 

Send a copy of it to the solicitors on the claim form with the following letter. Make sure all the claim references are on the letter.

 

***********************************************************

 

Dear Sirs

 

 

' Herewith copy defence by way of service, the same having been filed with the court.

 

Please serve amended particulars of claim and plead your client's case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR rather than the Northampton County Court regime.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided'.

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1618684.html

 

 

Or you can send your CPR18 letter. With a separate letter under CPR15.5

 

Dear Sirs

CLAIM REFS

I am in receipt of your claim issued out of the Northampton CCBC.

Notwithstanding the limitations of the Northampton CCBC which permits claims to be issued without documentation. I believe your clients case requires repleading in order for me to understand the case I will face at trial.

I am therefore requesting that you agree to an extension of time under CPR15.5 in order for you to:

Replead your client's claim in accordance with CPR

Provide those documents requested in my CPR18 dated .......

 

“Agreement extending the period for filing a defence

15.5

 

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part15.htm#IDAUXNTB

 

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.”

 

I require your agreement to my request within 7 days from the date of this letter.

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided.

Yours etc..

 

 

 

HTH

[littlebert8]

Thanks CitizenB, I have sent the CPR 18 request with a covering letter asking for an extension. Will keep the embarrassed defence in the bag in case they don't respond.

[littlebert8]

DLC have written to agree my request for an extension. They have also provided an 'interim' response to my part 18 request. This isn't endorsed with a statement of truth.

 

Should I remind them that their response forms part of their statement of case?

 

DLC have written to agree my request for an extension. They have also provided an 'interim' response to my part 18 request. This isn't endorsed with a statement of truth.

 

Should I remind them that their response forms part of their statement of case?

Edited August 25, 2010 by citizenB
duplicated posts merged

[unclebulgaria67]

DLC have written to agree my request for an extension. They have also provided an 'interim' response to my part 18 request. This isn't endorsed with a statement of truth.

 

Should I remind them that their response forms part of their statement of case?

 

Wait for the full information. This is only interim stuff.

[littlebert8]

I still haven't received a final response to my Part 18 request and the defence needs to be filed by 13 September.

 

Their interim response is not verified with a Statement of Truth, so I don't see how I can be expected to respond to it in my defence.

 

My intention is to write to Applins asking for a final response by return, or at least by the end of this week as I need 14 clear days to prepare my defence. If they fail to respond, I will have to enter an embarrassed defence and make the court aware of their failure to comply with the part 18 request.

 

Any other suggestions?

[citizenB]

You can submit a notice to the court to order them to comply ? Did you read pt2537's thread.

[pt2537]

If a party fails to reply to a proper part 18 and by proper i mean one made in accordance with part 18, not a fishing trip but one t hat is clear concise and appropriate in the circumstances, then, you should apply on notice for an order compelling compliance.

 

Care must be taken though to give the claim sufficient reasonable time to comply or you could get adverse costs against you

[littlebert8]

Thanks for the recent posts.

I've been away for a few days, but found this on my doormat today:

 

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

 

RESPONSE TO THE DEFENDANT’S REQUEST UNDER CPR 18

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

 

[see my original request at post

#50

]

 

1) The outstanding balance relates to monies due under a regulated agreement, in writing, dated 24 June 2000 made between Bank of Scotland plc and the Defendant (“the Agreement”).

The debt was subsequently assigned to MBNA Europe Bank Ltd, the Assignor.

 

2) A copy of the Agreement was supplied to the Defendant on 5 September 2009.

[see post

#6

]

 

3) A copy of the Agreement is available for inspection in the event that the Defendant has failed to retain the copy sent as above.

 

4) The Claimant is not a party to the original agreement.

 

5) On 23 December 2008, MBNA Europe Bank Ltd agreed to assign debt to the Claimant on a rolling purchase basis. Copies of the key pages of assignment were sent to the Defendant on 3 August 2010.

Due to the commercial sensitivity of the complete assignment, a full text will not be available for inspection.

All legal and beneficial interest in the monies due by the Defendant, being £7771.81 was transferred to the Claimant on 22 April 2009.

 

6)

a) As above

b) As above.

c) The Defendant was notified of the assignment on 23 April 2009.

d) The notice of assignment was sent by first class, Royal Mail post.

7) The Defendant failed to make payments in accordance with the terms of the agreement.

 

8)The Defendant defaulted on the Agreement on several occasions. Individual Notices of Default are contained within the Statement of Account.

a) The amount of arrears at default varied. Please see notices included within the Statement of Account.

b) As above, please see Notices contained within the Statement of Account.

c) As above.

d) The Default Notices are contained within the statements which were sent to the Defendant by way of Royal Mail post.

9) The Defendant failed to discharge the arrears and the agreement was subsequently terminated by the Assignor. Please see attached copy Termination Notice.

 

10) The Agreement was terminated on 24 April 2009.

 

11) A Statement of Account was sent to the Defendant on 3 July 2009. A copy is available for inspection in the event that it has not been retained.

 

The Claimant believes the facts set out above to be true.

 

Signed: xx

Position: Litigation Executive, direct legal & collections.

 

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

 

There were two documents attached to this response:

 

1. A Default Notice dated 7 April 2009 with a 'remedy before' date of 24 April 2009

2. a 'Termination Notice' dated 16 August 2010 !

 

They have previously supplied a copy of the 'rolling purchase' contract that is dated 23 December 2008. However, there is nothing that identifies this particular account as having been sold

 

I need to file a Defence by 13 September 2010

[middenmess]

From the CPR

 

5].......All legal and beneficial interest in the monies due by the Defendant, being £7771.81 was transferred to the Claimant on 22 April 2009.

 

 

10) The Agreement was terminated on 24 April 2009.

 

 

A minor point perhaps but were the claimants licensed to operate your credit card account between the 22nd and 24th April or for that matter if the supplied Termination Notice is true to the 16th August 2010??

[littlebert8]

No, I do not believe that Hillesden have a consumer credit licence. I also don't see how the assignor can terminate the agreement after it has assigned it. It must have been terminated before it was assigned on the 22nd - before the remedy date on the DN.

 

Any more views on how this can be defended?

[littlebert8]

Bump

 

I need to draft a defence by the end of the week. Any suggestions?

[middenmess]

Bump.

[littlebert8]

Thanks for bumping middenmess.

 

I'm currently drafting a defence.

 

I'm going to concentrate on the agreement being unenforceable due to absence of prescribed terms.

 

However, I also want to make a further case for unlawful rescission based on the account being assigned 2 days before the remedy date on the DN.

 

I have also notices couple of anomalies in the Part 18 response:

 

1. para. 8 states "The Defendant defaulted on the Agreement on several occasions. Individual Notices of Default are contained within the Statement of Account". I believe that the author has confused the term "Default Notice" with "Notice of Default Sums". Does anyone have a good comparison of these two terms so that I can expose the claimants ignorance of this?

 

2. further to the above, para 9 states that a termination notice was issued to the defendant and a copy is attached. The only two documents attached are a copy DN and a letter addressed to me from MBNA stating that the account has been assigned - dated 16 August 2010!!

[middenmess]

From everything that I've read on your thread it would seem that you have all the ammunition to mount a comprehensive defence but I think you need expert advice as to how you should prioritise and present it.

 

Your needs have not had many responses so I think that it's time to click on the black triangle to obtain help from the site team.

[littlebert8]

I have a partially drafted defence, but I'm away for work now until Thursday evening. I should have some time to make final changes before posting on Friday.

 

In the meantime, if anybody has any suggestions, please post as I will be able to read the thread and make short comments on my mobile.

[littlebert8]

thanks middenmess, I have reported to the site team. I'm not one who wants constant spoon-feeding, but sometimes the silence can be a bit disconcerting!

[middenmess]

thanks middenmess, I have reported to the site team. I'm not one who wants constant spoon-feeding, but sometimes the silence can be a bit disconcerting!

 

:-)I read hundreds of threads and find that often the most interesting or deserving requests for advice [iMO] receive less response than other threads--it's just 'one of those things' I suppose as it occurs internet wide on many forums:|

[citizenB]

Bert, I am attaching some samples of "notices of default" Click on the images for a larger view.

 

 

 

 

A Default Notice - the statutory document they are obliged to send prior to termination/final demand/court action should be headed..

 

Important - YOU SHOULD read this carefully

Notice of Default served under section 87(1) of the Consumer Credit Act

 

It should give you a date that allows for 14 clear days to remedy the breach allowing for posting.

 

It should advise you of the clause you have breached.

 

How much you need to pay (accurate arrears) in order to remedy the breach.

 

So yes, it does look as though someone has confused themselves on the other side.

 

Have they sent you any Notice of Arrears letters ? I understand that is a new requirement since around 2009 and is almost important as the Default Notice

[citizenB]

It is interesting that they say Notices of Default in the plural. The only way they are able to send more than one is if you either remedied the breach which then made it like nothing ever happened or they screwed up and had to reissue.

 

However, if they demanded the full balance or terminated the account then they would not be able to issue a further default notice. I guess you actually require sight of what they claim to have so you check what it is they have on file.

[citizenB]

Here you go. Notice of Arrears and some more information on default notices, etc.

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/161927-amendments-default-notices-cca.html#post1736169

 

A new amendment has been made in case of failure to give notice of sums in arrears in CCA 1974. Section 11 CCA 2006 inserts a new section - 86D - that sets out the consequences for a creditor or owner if he fails to give a notice as required by sections 86B or 86C.

 

If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then during the period of his failure to provide the notice (i.e. from the date that it was required to be given until the end of the day on which it is eventually provided), he is not entitled to enforce the agreement. In addition,

 

The debtor or hirer is not liable to pay any interest that relates to the period of the creditor or owner’s failure,

 

Notice of default sums

Section 12 of CCA 2006 applies to situations where a debtor or hirer under a regulated agreement incurs a default sum.

 

A creditor or owner must give the debtor or hirer a notice in the specified form when a default sum becomes payable as a consequence of a breach of the agreement. For example, you hire a car for the duration of your holiday. There will often be a penalty sum payable if you incur a fine from using the car. The car-hire company might say this is to cover, for example, administration charges. Either way, certain sums are payable if you breach the agreement. Where this applies, the creditor must provide notice to the debtor, of the amount they must pay. This only applies where the default sum exceeds a specified amount.

 

Additionally, a creditor may only require a debtor to pay interest (in connection with a default sum) 28 days after the day the notice was given to the debtor. So if the creditor fails to give notice to the debtor then he can not enforce the agreement until notice is given.

 

“Default sum”

The term ‘default sum’ has been redefined in s.18 CCA 2006.“Default sum” now means: a sum payable by a debtor or hirer in connection with his breach of a regulated agreement (e.g. a charge imposed for late payment of an instalment due under the agreement or a fee imposed for exceeding a credit limit on a credit card). A default sum does not include sums that, as a consequence of a breach of the agreement, become payable earlier than they otherwise would have done. Nor does it include interest.

 

Interest on default sums

Section 13 has been amended so that a creditor or owner may only require simple interest to be paid in respect of default sums payable by the debtor or hirer. This includes sums payable under non-commercial or small agreements.

 

Minimum 14 days after Default notices

The new minimum period after which a creditor or owner may take action (in respect of the agreement after having issued a default notice) is now 14 days. It used to be only 7 days. Section 14 CCA 2006amends section 88 of the 1974 Act to create this extension.

 

Additionally, under s87, a creditor or owner must give the debtor or hirer a default notice in the prescribed form if he wishes to:

- terminate the agreement;

- demand earlier payment of a sum;

- recover possession of any goods or land;

- treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred; or to

- enforce any security

 

Section 88 is also amended to allow the Secretary of State to prescribe information in the default notice to include any matters relating to the agreement (e.g. information about whether the agreement includes a term providing for the charging of post-judgment interest).

 

Here you go. Notice of Arrears and some more information on default notices, etc.

Edited September 10, 2010 by citizenB
merged duplicated posts.

[littlebert8]

Here is my defence. Its got to be posted to the court this afternoon, so I'd be grateful if someone could give it a once over.

 

Its a bit of a beast - running to 6 pages of A4. I'm wndering if its better to take out the quotes of statute and caselaw and make it more concise?

 

 

1. I, Littlebert, of Little Land am the defendant in this action and a litigant in person. I make the following statement as my defence to the Claim brought by Hillesden Securities Limited.

2. The statements made in this defence are in reply and opposition to the Claimant’s Particulars of Claim and the subsequent Part 18 response made by AN Other, a Litigation Executive of direct legal and collections

3. The Claimant’s Particulars of Claim, as stated on the Claim Form, are extremely vague and insufficiently detailed. It does not comply, or even attempt to comply, with the provisions of CPR Part 16 even when allowing for the restrictions of the bulk issue system.

4. The defendant therefore wrote to the Claimant’s solicitors, Aplins, requesting an extension to the standard period for submitting a defence and enclosing a formal request for further information under CPR part 18. This document was forwarded to Direct Legal and Collections who appear to act for the Claimant.

5. Direct Legal and Collections wrote to the defendant agreeing to the request for an extension to the period for filing a defence and enclosing an ‘interim’ response to the Part 18 request. This response was incomplete and was not verified with a statement of truth.

6. Direct Legal and Collections subsequently served a final verified response dated xx August 2010.

7. The claimant states at paragraph 1 of both the interim and final Part 18 response that their claim relates to a written agreement. The claimant has refused to attach a copy of this agreement as required by Practice Direction 16.7.3

8. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the claimants Particulars of Claim or Part 18 Response and puts the claimant to strict proof thereof.

9. The Defendant denies that he is liable to the Claimant in the sum of £xx or indeed at all.

The “Agreement”

10. Notwithstanding point 7 above, the defendant has located a copy of the document referred to in Paragraph 2 of the claimant’s Part 18 response (“the agreement”).

11. In Reference to paragraph 3 of the Claimants part 18 Response, the defendant requires the opportunity to inspect the original document in order to satisfy himself that it exists and was signed by his own hand.

12. If 'copies' of any of the documents referred to in this case are to be relied on in court rather than 'originals', a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act is required, including but not limited to:

a. a copy of the procedure(s) used for copying, storing and retrieving documents;

b. a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s);

c. copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with;

d. copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

13. The Defendant would also bring to the court’s attention the following:

Code of Practice for Legal Admissibility of Information Stored on Electronic Document Management Systems, BIP 0008:2004 (previously PD 0008 ) issued by the British Standards Institution (BSI).

This Code of Practice provides guidelines to ensure, as far as possible, that electronic documents and scanned images will be accepted as evidence by the courts. The basis of the guidelines are that process under which documents are managed are as important as the technology used, for example where a document is printed, it should accurately reproduce the contents of the "original". The Civil Evidence Act (1995) introduces a flexible system whereby all documents and copy documents, including computer records, can be admitted as evidence in civil proceedings. A judge will still have to be persuaded to treat that evidence as reliable, therefore organisations will have to prove the authenticity and reliability of the record.

The key principles behind BIP 0008 are:

Authenticity – Processes to be followed at system planning, implementation and the procedures by which the systems should be operated.

Storage and access procedures – Procedures including scanning, indexing, retrieval, system administration, archiving, off-site storage and training, to be followed.

Demonstrability of adherence – A structured audit process resulting in a Certificate of Conformity that displays demonstrability of adherence.

14. In light of point 12 above, the Defendant therefore puts the Claimant to strict proof that the documents they are relying upon in this claim are compliant with the key principles of points 12 & 13 above and that failure to supply this proof renders the evidence inadmissible.

15. The Defendant denies that the copy document referred to in paragraph 2 of the Claimants Part 18 response is an enforceable agreement under the terms of the Consumer Credit Act

16. The documentation which the claimant claims to be relying upon to bring this action must contain the prescribed terms specified in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

a. Number of repayments;

b. Amount of repayments;

c. Frequency and timing of repayments;

d. Dates of repayments;

e. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

17. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 6 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

18. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document . I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299:

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.""

19. The Defendant accepts that he made an application for a credit card and that in consequence of that application Bank of Scotland advanced monies to him.

20. If the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [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 s65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

Statement of Account

21. I deny that a balance of £XX is outstanding under the agreement and contend that the copy statements referred to in paragraph 11 of the Claimants part 18 responses include unlawful charges. Furthermore the statements are incomplete and begin with a balance carried forward, the origin of which remains unexplained.

22. The Claimant has disclosed limited copy statements however these statements begin in July 2005 and show a “Previous Balance” of £XX. They do not show how that earlier amount has been calculated. Furthermore, the statements show various ‘default sums’ and fees for which there would appear to be no contractual basis. Consequently those fees are unlawful. Furthermore, the Defendant has no means of ascertaining whether the earlier sums validly accrued.

23. I contend that the clause in the alleged agreement under which the account charges have been imposed is, at common law, a penalty clause in that it does not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred.(Dunlop Co Ltd v New Garage Ltd [1915] AC 79)

24. The Claimant has not disclosed the original terms and conditions under which the default charges have been imposed. It is averred that before the court may assess whether the charges imposed are pursuant to a penalty clause that it must consider the position of the parties and indeed the agreement at the date of its’ inception. “The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of making the contract, not as of its’ breach” (per Lord Dunedin in Dunlop v New Garage)

25. The Charges referred to relate to a “LATE DEFAULT SUM”, which is a standard fee of £12 imposed regardless as to whether the payment is one day late, or three weeks late or indeed never arrives. It is averred that in any event the claimant suffers no detriment in late payment in that it continues to charge interest at its’ contractual rate.

26. The second charge is an “OVERLIMIT DEFAULT SUM” which is again charged as a standard fee, this time of £12, which is charged for every month in which an account exceeds the credit limit imposed. Again the fee is charged irrespective of the extent by which the credit limit is exceeded, it is the same fee if the limit is exceeded by £10 or £10,000. The Claimant suffers no actual loss in the sense that the Claimant continues to charge interest on the balance outstanding and consequently suffers no loss. The clause must therefore be penal in nature.

27. Furthermore, the Defendant avers that the clause under which the charges were imposed was an unfair term in a consumer contract and in breach of the Unfair Terms in Consumer Contracts Regulations 1999 and by virtue of regulation 8(1) not binding on the consumer.

28. The Defendant refers to the Office of Fair Trading guidance on this issued in April 2006 in this regard and notes that following an OFT investigation into credit card default charges that the OFT concluded that many credit card charges were unfair.

The Default Notice

29. In paragraph 8 of their Part 18 response, the claimant avers that “various Notices of Default are contained within the Statement of Account”

30. The Defendant avers that the claimant has confused the term ‘Default Notice’ (section 87 of the Consumer Credit Act) with ‘Notice of Default Sums’ (section 86E of the Consumer credit Act)

31. Notwithstanding point 30 above, the Claimant has provided a copy of a Default Notice dated 07 April 2009.

32. The Claimant has failed to state the method by which the Default Notice was served on the claimant. It is submitted that, without evidence to the contrary, the method of service should be assumed to be 2nd class postage with the date of service deemed to be 4 days later.

33. The Default Notice provided by the Claimant is invalid on three counts:-

a. The arrears include unlawful charges

b. The remedy date of 24 April 2009 does not allow 14 calendar days from the deemed date of service (11 April 2009)

c. The agreement was terminated by assignment on 22 April 2009

34. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of the breach and include accurate instructions on how to remedy any such breach. The prescribed format for such documents 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).

35. 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 also 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).

The Assignment

36. In paragraph 4 of its CPR 18 response, the Claimant admits that they are not party to the original agreement.

37. The claimant also notes in Paragraph 1 of their CPR 18 response that the original agreement was made between the Bank of Scotland and the Defendant, and that this was subsequently assigned to MBNA Europe Bank Limited.

38. The Claimant has failed to provide any evidence of an assignment between Bank of Scotland and MBNA Europe bank. The defendant therefore puts the claimant to strict proof of such.

39. With reference to paragraph 4 of the Claimant’s part 18 response, the document referred to by the Claimant does not identify any specific account as being assigned. The defendant therefore puts the Claimant to strict proof of assignment

Conclusion

40. The claimant has failed to adduce hearsay evidence in the correct procedure and the document purporting to be a Credit Agreement is inadmissible as evidence in this claim.

41. Notwithstanding Point 40, the copy document disclosed by the claimant is unenforceable due to the absence of prescribed terms

42. The claimant has not been correctly assigned rights under the alleged agreement and has no legal right of action for the aforementioned account. (W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 refers.)

43. The claimant has failed to serve a valid default notice, and the claimant should not be bringing this action before the court. (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal refers.)

44. In the circumstances the Claimant has no substantiated particulars of claim and no entitlement to claim any of the relief now sought by its claim and it is respectfully suggested that the claim be struck out pursuant to CPR Part 16 Paragraph 7.3(1) and CPR 3.4(2) and judgement/costs be awarded in favour of the defendant.