Mbna / restons solicitors - court actiion

[luckilucki]

My partner is heavily in debt and earlier in the year was made unemployed which did not help, so he took advice from the Citizens Advice Bureau debt management plan, who made a Common Financial Statement which was sent to his three Creditors : MBNA(Virgin) , DIRECT GROUP and MINT offering to pay £1 per month until he was in a position to pay more. Mint accepted it (froze the interest as well), Direct Group took him to Court and were awarded a Charging Order on his house and MBNA have never officially accepted it although they have never returned the £1 payments and the interest continues to rise. He recently received a letter from Restons Solicitors asking for immediate payment of the balance etc and me thinking I was being helpful researched this on your site and so send the following letter to Restons recorded delivery enclosing a £1 postal order.

 

18 August 2010

 

Dear Sir/Madam

 

Account/Ref No:

 

With reference to the above agreement, I would be grateful if you would send me a copy of this credit agreement and a full Breakdown of the account including any interest or charges applied.

 

I understand that under the

Consumer Credit Act 1974 [sections 77-79],

I am are entitled to receive a copy of any credit agreement and a statement of account on request.

 

I enclose a payment of £1 which represents the fee payable under the Consumer Credit Act 1974.

 

I understand a copy of any credit agreement along with a statement of account should be supplied within

12 working days

.

 

I understand that under the Consumer Credit Act 1974 creditors are unable to enforce an agreement if they fail to comply with the request for a copy of the agreement and statement of account under these sections of the Act.

 

I look forward to hearing from you.

 

I RECEIVED NO REPONSE TO THIS LETTER SO I SENT THE FOLLOWING LETTER:

 

 

 

 

7 September 2010

 

 

Dear Sir/Madam

 

Account/Ref No

 

I do not acknowledge any debt to your company

 

FORMAL NOTICE - ACCOUNT IN DISPUTE.

 

This letter is further to letter from yourselves dated 18th August 2010.

 

On the 18th August 2010 I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

To date you have failed to comply with these requests in any way.

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation.

 

These limits have expired.

 

As you are no doubt aware the Consumer Credit Act states:

 

If the creditor fails to comply with Subsection (1)

 

He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counter-claim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and

from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days of the initial request to stop processing my details, provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’. You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit including but not limited to Trading Standards, the Office of Fair Trading, the Information Commissioners Office, The Financial Ombudsman Service and my MP .

 

You have 7 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

I then recieved a letter from Restons dated 10th September, basically refusing to acknowledge the above letter as it had not been signed, so I have sent another copy with a signature with crosses underneath and an accompanying letter.

 

13th September 2010

 

Dear Sir/Madam

 

Account/Ref No:

 

As far as I know it is not a legal requirement to sign these requests and you were happy enough to send a summons without a signature, so could you please

comply with mylawful requests and that the clock is ticking for you to comply within the original time scale.

 

 

Yours faithfully

 

In the meantime he received a Court Summons for Northampton county court on dated September 5th, so I sent the letter below to Restons:

 

 

 

10th September 2010

 

 

In the Northampton county court

MBNA V

Claim Number:

 

Dear Sir: Madam

 

REQUEST FOR INFORMATION CPR 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedures Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with MBNA.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms ans conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my persoanl data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

 

 

I am now completely out of my depth and don’t know whether I am helping him or causing more trouble with MBNA / Restons. I understand that I need to acknowledge service with the Court (quickly!!) and that he intends to Defend……. But am not sure what reasons I am defending for ?? As I said I thought I was helping but now thinking I am in too deep and making matters worse. Any pointers would be much appreciated please

J

[littlebert8]

I think Restons will either ignore that CPR 18 request or refuse it saying its a "fishing expedition". As much as it pains me to say it, they are probably right - the CPR doesn't give you the right to ask for a long list of documents like that.

 

You can use CPR 31.14 to request copies of documents referred to in the particulars of claim. Part 18 is to request further information I.e ask questions that you want the claimant to answer. However it must be reasonable and proportionate.

 

Can you post up the particulars of claim (taking care to remove any identifying references) and let us know if the ammount claimed is over £5k?

[AndyOrch]

Hi Luckiluckie and welcome to Cag (and the crazy world of litigation)

 

I dont think you are out of your depth at all, you defend it, all of it, did they listen to your plea of help?

Not on your life,you did as everyone is told to do reason with the Creditor and this is their response.

If you dont defend they win, CCJ with you for 6 years, if you defend and they win, you will have had your say and along the journey and they may listen and come to some mutual agreement.

Litigation is a game of who blinks first 95% mind games 5% law,play their game make them work for it.

 

Regards

 

Andy

[Docman]

Hi lucki and welcome to CAG

 

As andy says, you are not out of your depth - although no doubt Restons would prefer you not to have found this site. BTW, has your OH acknowledged service of the claim form from Northampton? You only have 14 days after service to acknowledge. Look forward to you posting the Particulars of Claim.

 

Doc

[luckilucki]

Thanks for your reply Littlebert 8 . The amount is over £7000 now with all their costs etc added. Will try and upload the particulars of the claim tonight .

[luckilucki]

Thank you for your reply Docman. I am being really thick here as all this jargon is new to me (OH??). I have acknowledged the Court Claim on line asking for the extra 14 days to prepare a defence and Northampton County Court sent me an acknowledgement by e mail confirming this, is this what you meant ?? Sorry for appearing slightly stupid but this is a whole new minefield for me.

[Docman]

Yes that's it. Now for a defence.

[luckilucki]

[luckilucki]

Have tried to upload Court Document as an image but it seems a bit small for anyone to read.

[littlebert8]

It's too small to read I'm afraid. You need to use Photobucket or similar. Alternatively, just type out the text from the particulars of claim box.

[luckilucki]

Particulars of Claim

The Claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about 30/06/2008 in the sum of £7299.18 inclusive of interest to the date of this summons at 8% perannum from 16/08/10 to 02/09/10.

 

DATE ITEM VALUE

16/08/2010 Default Balance 7272.08

 

02/09/2010 Interest 27.10

Total 7299.18

 

Together with

Interest pursuant to s69 County Courts Act 19

at the rate of 150.39 pence per day

to the date of Judgement or sooner payment

[luckilucki]

We have not recieved any thing from Restons of which we have requested and time is no running out to put in a defence. Can I just put in an 'embarrased defence' stating :

At the point where my defence was required I was not in possession of all requested documents from the claimant, which were vital to my ability to defend this action and places me at a distinct disadvantage.

????

 

[luckilucki]

1. In the Northampton County Court

Claim number

 

 

 

 

 

Between

xxxxxxxxxxx- Claimant

 

and

 

- Defendant

 

 

 

Defence

 

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.

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx.

 

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

 

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

 

 

 

The Request for Disclosure

 

6. Further to the case, on 18th August 2010 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice,.

 

7. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person ( a copy of the request is attached to this Defence)

 

The importance of a copy of the credit agreement and its production before the court

 

8. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

9. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

10. 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--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. 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

 

11. 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 with 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

 

12. 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."

 

13. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

14. Notwithstanding point 13, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

15. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 10 to 16 of this defence to have any right of

enforcement.

 

The courts power of enforcement

 

16. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

127(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).

 

17. Further more 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. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........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.

 

19. 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,signatureof 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.

 

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

And further more

36. 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

 

21. ".............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.

 

22. 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.

 

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

 

24. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

25. Further more the defendant requires clarification on the status of the original agreement, the defendant requires the claimant provide a certified copy of the original agreement. If the document is no longer in existence the defendant requires certification of destruction and furthermore the defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document and also require written clarification that any copy document produced is authentic. The defendant notes that the Civil Procedure Rules also require the original documents to be made available under practice direction 32

 

26. The defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005] on appeal from Stafford County Court the issue of the loss original or destruction of the credit agreement was central to the case and the defendant is under the belief that the outcome of the case was that where the original agreement could not be produced the claim could not succeed and that the appeal was successful.

 

27. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court

uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

The Need for a Default notice

 

28. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

29. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

30. Notwithstanding point 27, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

31. 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 a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Conclusion

 

32. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

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

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(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.

 

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

 

34. As laid out in point 23 the defendant requires that the claimant provide the requested information and proofs and authenticities. The defendant requests that the court order that the claimant supply the information requested

 

35. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

36. I respectfully ask the permission of the court to amend this defense when the claimant provides full disclosure of the requested documents

 

 

 

Statement of Truth

 

 

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

 

 

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

 

Date

Does this sound ok ???