Varde/Brachers claimform - MBNA card

[Smoothound]

Should I send an income/expenses sheet to the court with a covering letter saying we are in negotiation or just wait? If I do nothing will I just get a CCJ by default? I guess it just depends if they have spoken to the court or not?

[car2403]

Default Judgment isn't awarded automatically - the Claimant will need to apply for one.

 

As you've started negotiations, it would be a bad show if they were to apply, really, but don't put it past them.

 

If you have a date to comply with something in the claim, you must comply with it, to avoid issues later on. (additional costs, mainly)

[Smoothound]

I have to file a defence by monday next that is my issue! We are negotiating but the court is expecting a defence. I don't know whether to send an email/letter saying I am negotiating for an out of court settlement with the claimant or something else?

Edited February 25, 2012 by Smoothound

[citizenB]

"Based upon the information you have provided, it appears that you have made no provision for the payment of Council Tax, nor have you included any details regarding the amount you spend on housekeeping. We would be grateful if you could provide an explanation for this. "

 

 

 

Did you not include this information ?

[Smoothound]

Did you not include this information ?

 

If you re read the rest of that post I do explain that those bills are paid by my partner.

Edited February 25, 2012 by Smoothound

[citizenB]

If you re read the rest of that post I do explain that those bills are paid by my partner.

 

 

Which is why I suggested that you make reference to an amount being contributed by your partner on the form.

 

You will need to respond to them advising that those bills are paid by your partner..

[Smoothound]

Which is why I suggested that you make reference to an amount being contributed by your partner on the form.

 

You will need to respond to them advising that those bills are paid by your partner..

 

Yeah I've already done this by email but you would think they would realise this was the case to be honest! Do they really think I'd leave multiple expenses off and think they wouldn't notice?

 

I'm still not sure what I need to send to the court instead of a defence so that I have responded? As I'm negotiating a defence is pointless so maybe copies of the emails and letters between us trying to get to an agreement?

[car2403]

Your negotiations are without prejudice to the claim, so a Defence will still be needed as per your application to the Court earlier. Of course, if you reach an agreement, the Court will be informed, but they will only be interested in whether or not you are complying with your orders, not whether you are discussing an agreement as this should have been done prior to the claim coming to Court. In your next reply you should ask the Claimant for an agreement to a stay of proceedings for a month to allow settlement discussions to continue.

[Smoothound]

Your negotiations are without prejudice to the claim, so a Defence will still be needed as per your application to the Court earlier. Of course, if you reach an agreement, the Court will be informed, but they will only be interested in whether or not you are complying with your orders, not whether you are discussing an agreement as this should have been done prior to the claim coming to Court. In your next reply you should ask the Claimant for an agreement to a stay of proceedings for a month to allow settlement discussions to continue.

 

The issue now then is that I need to file a defence by monday which I don't have!! I can email and ask for a stay while we negotiate I suppose but it's a bit close I guess

[Smoothound]

So what should I do regarding the court? I can't send a defence as I haven't done one because I am negotiating with the claimant! Or should I just ask the solicitors for a months stay while we discuss and hope they do it in time?

[car2403]

Why can't you enter a Defence? If they don't agree to your settlement terms, and you don't enter a defence, you could be giving them an opportunity to seek Default Judgment which will be forthwith. Entering a defence now, gives strength to your bargaining position

[Smoothound]

Because I have nothing prepared and am wildly out of my depth! If I was confident about all of this I would be defending it rather than giving in and letting them win

 

I'm assuming I need to do something by close of play tomorrow so there is little time to do anything now realistically even by email is there?

[car2403]

With respect, everyone here is trying to help you - you come across in your posts like this is everyone's fault, but yours. Sorry, I had to say it. Leave this with me for a few hours, we need a simple Defence that you can submit to the Court to continue with these proceedings WHILE you are trying to agree a settlement with them.

[Smoothound]

With respect, everyone here is trying to help you - you come across in your posts like this is everyone's fault, but yours. Sorry, I had to say it. Leave this with me for a few hours, we need a simple Defence that you can submit to the Court to continue with these proceedings WHILE you are trying to agree a settlement with them.

 

Sorry if it seems that way I am just really peeved that I didn't realise earlier how much I had to absorb and really understand to continue to defend this right to the end. I'm a manual bloke not an academic hence my reluctance/fear of continuing even though I do think I should be able to win having had the help form you guys here. If it had all been pointed out earlier how hard this would actually be for me I would have probably given up earlier and wasted less of you time

 

Thanks again for your time and effort it is appreciated honestly car2403

[car2403]

Have a gander at this:

 

1. I, the Defendant in this case, am a litigant in person and I make this Defence statement from my own knowledge and experience.

 

2. The Claimant alleges that the Defendant held a credit agreement with the Claimant since ****, numbered **** – that agreement said to be a regulated debtor-creditor agreement under the Consumer Credit Act 1974.

 

3. The Defendant defends the claim in the following terms;

 

CONSUMER CREDIT ACT 1974, AS AMENDED:

 

4. On ****, a request was made by the Claimant under s.78 of the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) to obtain copies of the originally executed credit agreements that the alleged debt refers to. In addition, statements of the account should have been provided, along with any other document referenced in the credit agreement and a request to substantiate the default information recorded. The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00. Royal Mail confirms receipt of this request on ****, which gave the Claimant twelve working days from receipt of the request, to provide said documentation, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was ****.

 

5. In a reply dated ****, the Defendant provided an alleged copy agreement.

 

6. The Defendant has failed to supply other information as required by s.78(1);

 

“78.—(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 15 new pence, 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,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.”

 

 

7. The Defendant is therefore in default of this request under s.78(6)(a);

 

“(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”

 

8. The agreement is not in the proper prescribed form, as set out in s.60 & s.61 of the Consumer Credit Act 1974 and the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) made under the Act – in that;

8.1. The agreement does not contain the prescribed terms contained within s.60 of the Act;

a) The rights and duties conferred or imposed on the Defendant by the agreement; (s.60(1)(a) Consumer Credit Act 1974)

b) The protection and remedies available to the Claimant under the Act; (s.60(1)© Consumer Credit Act 1974)

c) Rate of interest applicable; (Sch 6, Para 4 of Consumer Credit (Agreements) Regulations 1983)

d) Method, mode or periods of repayment; (Sch 6, Para 5 of Consumer Credit (Agreements) Regulations 1983)

 

8.2 The agreement has been improperly executed in that it does not fully comply with s.60 and s.61 CCA 1974, or the regulations made under that Act.

 

9. The Claimant is, therefore, unable to enforce the agreement without a Court Order under s.65(1).

 

10. The Court is excluded from making such an Enforcement Order under s.127(3);

 

“(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

 

11. The Court is excluded from making such an Enforcement Order under s.127(4)(b), in that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 of the Consumer Credit Act 1974 and the regulations there under;

 

“(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(b) section 64(1) was not complied with”

 

12. The Defendant disputes the balance of the account, as during the period in which the account was operating the Claimant debited charges to the account in respect of purported breaches of contract on the part of the Defendant and also charged interest on the charges once applied. The Defendant understands that the Claimant will contend that the charges were debited in accordance with the terms of the contract between itself and the Defendant and accordingly puts the Claimant to strict proof of such terms existence. The Defendant contends:

a) No such contractual provision exists to allow the Claimant to levy such charges;

b) Where there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach; are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Claimant, which exercises the contractual term in respect of such charges with a view to profit; and

c) Accordingly the Defendant puts the Claimant to strict proof that every charge made to the account was valid and lawful.

d) The Defendant avers that any Default or Termination Notice sent would have included these charges, invalidating that Notice due to this unlawful application.

 

13. The Claimant refers to specific paragraphs of the House of Lords case Wilson v First County Trust Ltd [2003] UKHL 40;

 

Para 49;

"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"

 

Para 121;

"But the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement under which FCT provided the loan to Mrs Wilson............... was unenforceable. The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest."

 

Para 123;

"section 127(3) of the 1974 Act too, like sections 6 and 13(1) of the 1927 Act, was designed to protect unsophisticated borrowers. There is no doubt that they would be exposed to the risk of harassment by unscrupulous creditors if creditors could override the statute by appealing to the common law. I would prefer to say that it would be inconsistent with the statute to provide FCT with a common law remedy to redress the enrichment which Mrs Wilson has received at its expense"

 

Para 173;

"Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery."

 

14. The Defendant contends that the Wilson case ruling is intended to have the effect that creditors who do not have enforceable consumer credit agreements are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the credit records of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid. The law lords considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

 

15. The Defendant therefore defends the Claimants claim in it’s entirety

Statement of truth;

I, the Defendant, believe all facts stated to be true.

 

Signed,

 

You are going to need to understand this, if they don't agree to your settlement terms, or accept that they will get Judgment against you if you aren't prepared to defend to the end of the claim. Ultimately, it's your choice, but I hope this at least buys you some more time to continue these negotiations.

 

FYI, I don't normally construct defences for Caggers, as I firmly believe you need to understand your own defence, but in this instance I've made an exception. This is from my 'library' of defence statements, based on what I've seen throughout this thread, but some of of it may not be relevant or even incorrect as I may have misunderstood something.

[Smoothound]

Thanks car!

 

 

I will have a proper look when I get home. On my phone it makes a bit of a hard read! It gets a bit confusing in the middle as Claimant and Defendant switch around but I'll read it properly shortly. There appears to be a link to a file in the middle of it?

[car2403]

Good point, this is one I've adapted as I took them to Court, you need to double check Claimant/Defendant is the right way around

[Smoothound]

Good point, this is one I've adapted as I took them to Court, you need to double check Claimant/Defendant is the right way around

 

Not sure because I find all this stuff hard to read at the best of times!! Will look later on the computer properly and see how I go. I will have to email tonight or first thing tomorrow as I'm at work all day tomorrow.

[Smoothound]

Just having another look through this and the first part of the statement I would need to alter as my request was a CPR rather that a basic CCA request? According to others in this thread they did supply most of the documents requested it was mostly the fact that the CCA was an application form not the prescribed terms that were wrong?

 

I'm just thinking out loud here really as if I put in a defence that is irrelevant it's as bad as not doing it at all I would assume?

[Smoothound]

Have a gander at this:

 

1. I, the Defendant in this case, am a litigant in person and I make this Defence statement from my own knowledge and experience.

 

2. The Claimant alleges that the Defendant held a credit agreement with the Claimant since ****, numbered **** – that agreement said to be a regulated debtor-creditor agreement under the Consumer Credit Act 1974. This would not apply would it as my agreement is with MBNA not Varde even though they now own the debt?

 

3. The Defendant defends the claim in the following terms;

 

CONSUMER CREDIT ACT 1974, AS AMENDED:

 

4. On ****, a request was made by the Claimant Defendant? under s.78 of the Consumer Credit Act 1974, (herein referred to as “CCA 1974”) to obtain copies of the originally executed credit agreements that the alleged debt refers to. In addition, statements of the account should have been provided, along with any other document referenced in the credit agreement and a request to substantiate the default information recorded. The request was sent via Royal Mail with recorded delivery, enclosing a statutory fee of £1.00. Royal Mail confirms receipt of this request on ****, which gave the Claimant twelve working days from receipt of the request, to provide said documentation, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983. The deadline to comply with the request was ****. I sent a CPR 31.14 rather than a standard CCA request so this would have to be altered?

 

5. In a reply dated ****, the Defendant provided an alleged copy agreement. Claimant?

 

6. The Defendant has failed to supply other information as required by s.78(1); Claimant?

 

“78.—(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 15 new pence, 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,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.”

 

It was said further up the thread that they had supplied all docs requested except the Deed of Assignment which they did not have to produce except for the court. The issues were mainly in the fact that the NoA and CCA were possibly or possibly not dodgy.

 

 

7. The Defendant is therefore in default of this request under s.78(6)(a); Claimant? This is not valid in my case is it? Or could be as the NoA and CCA are possibly dodgy?

 

“(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”

 

8. The agreement is not in the proper prescribed form, as set out in s.60 & s.61 of the Consumer Credit Act 1974 and the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) made under the Act – in that;

8.1. The agreement does not contain the prescribed terms contained within s.60 of the Act;

a) The rights and duties conferred or imposed on the Defendant by the agreement; (s.60(1)(a) Consumer Credit Act 1974)

b) The protection and remedies available to the Claimant under the Act; (s.60(1)© Consumer Credit Act 1974)

c) Rate of interest applicable; (Sch 6, Para 4 of Consumer Credit (Agreements) Regulations 1983)

d) Method, mode or periods of repayment; (Sch 6, Para 5 of Consumer Credit (Agreements) Regulations 1983) Prescribed terms were all OK on mine were they not? So this is not applicable?

 

8.2 The agreement has been improperly executed in that it does not fully comply with s.60 and s.61 CCA 1974, or the regulations made under that Act. Possibly true assuming the CCA is an application form?

9. The Claimant is, therefore, unable to enforce the agreement without a Court Order under s.65(1). True if my CCA is just an application form?

 

10. The Court is excluded from making such an Enforcement Order under s.127(3);

 

“(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

 

11. The Court is excluded from making such an Enforcement Order under s.127(4)(b), in that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 of the Consumer Credit Act 1974 and the regulations there under;

 

“(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(b) section 64(1) was not complied with”

 

12. The Defendant disputes the balance of the account, as during the period in which the account was operating the Claimant debited charges to the account in respect of purported breaches of contract on the part of the Defendant and also charged interest on the charges once applied. The Defendant understands that the Claimant will contend that the charges were debited in accordance with the terms of the contract between itself and the Defendant and accordingly puts the Claimant to strict proof of such terms existence. The Defendant contends:

a) No such contractual provision exists to allow the Claimant to levy such charges;

b) Where there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach; are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Claimant, which exercises the contractual term in respect of such charges with a view to profit; and

c) Accordingly the Defendant puts the Claimant to strict proof that every charge made to the account was valid and lawful.

d) The Defendant avers that any Default or Termination Notice sent would have included these charges, invalidating that Notice due to this unlawful application. Not too sure about this bit as i've not really gone into the charges on the account only the PPI mis sale so far?

 

13. The Claimant refers to specific paragraphs of the House of Lords case Wilson v First County Trust Ltd [2003] UKHL 40;

 

Para 49;

"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"

 

Para 121;

"But the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement under which FCT provided the loan to Mrs Wilson............... was unenforceable. The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest."

 

Para 123;

"section 127(3) of the 1974 Act too, like sections 6 and 13(1) of the 1927 Act, was designed to protect unsophisticated borrowers. There is no doubt that they would be exposed to the risk of harassment by unscrupulous creditors if creditors could override the statute by appealing to the common law. I would prefer to say that it would be inconsistent with the statute to provide FCT with a common law remedy to redress the enrichment which Mrs Wilson has received at its expense"

 

Para 173;

"Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery."

 

14. The Defendant contends that the Wilson case ruling is intended to have the effect that creditors who do not have enforceable consumer credit agreements are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the credit records of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid. The law lords considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

 

15. The Defendant therefore defends the Claimants claim in it’s entirety I understand this bit but no good without the rest I guess!

 

Statement of truth;

I, the Defendant, believe all facts stated to be true.

 

Signed,

 

 

 

You are going to need to understand this, if they don't agree to your settlement terms, or accept that they will get Judgment against you if you aren't prepared to defend to the end of the claim. Ultimately, it's your choice, but I hope this at least buys you some more time to continue these negotiations.

 

FYI, I don't normally construct defences for Caggers, as I firmly believe you need to understand your own defence, but in this instance I've made an exception. This is from my 'library' of defence statements, based on what I've seen throughout this thread, but some of of it may not be relevant or even incorrect as I may have misunderstood something.

 

I've read through and marked in red what I think hopefully someone may have a look before I hit D-Day please

 

Thanks again car for your time and effort trying to sort something out

[Old Cogger]

Now get on with the defence it is up to you now, you have the guidance above .

[Smoothound]

Now get on with the defence it is up to you now, you have the guidance above .

 

Not so sure myself I just wish it was that easy! Whatever I email tomorrow is liable to be screwed up or wrong in some way. I just don't see how simple everyone makes it sound As it stands now I'm out of time. I need to sleep I have kids to get to school tomorrow and work all day so I'm not exactly in a position to spend a few hours to write up a defence now!

[Old Cogger]

Not so sure myself I just wish it was that easy! Whatever I email tomorrow is liable to be screwed up or wrong in some way. I just don't see how simple everyone makes it sound As it stands now I'm out of time. I need to sleep I have kids to get to school tomorrow and work all day so I'm not exactly in a position to spend a few hours to write up a defence now!

 

O.K. if the deadline is missed and a CCJ is obtained against you, that is not the end, it would however give you more time to compose yourself and get the confidence to act by applying for a Set Aside, and then going through a defence, you obviously need the extra time, I am sure others will be sympathetic to an extent to help you as above do a defence and support you. Others will also advise I am sure. get your sleep now and relax a bit.

[Smoothound]

Thanks MIKE770

 

Sleep was not good as you could probably guess Not looking forward to a day at work at all

 

I'm going to email the solicitors shortly and ask that they ask for a stay while we continue to discuss repayment and await further comment on here.

[car2403]

You're going to need a very good reason to set aside a CCJ, if one is granted in Default, especially as you've acknowledged the claim and submitted Applications around it. Saying you need extra time isn't a reason to set aside - you should have used the time you were given, or requested an extension.

 

Still, all is not lost, as even if a Default Judgment application is made, (which it shouldn't be, morally, as you've started settlement negotiations) it's going to take the Court about a week to process it. So, even if you send your Defence late, this evening or even tomorrow/Wednesday, it's still likely to be considered.

 

The point being you've had time, but it's not over yet, you're just running the risk of time working against you now, rather than having breathing space.