MBNA Court Claim Received - Urgent help needed please

[merekatt]

Here's some background information to begin with;

 

I had been dutifully paying the minimum payments by DD on numerous credit card accounts for many years until early last year when I ran into serious financial difficulties due to loss of income. I am self employed and the loss of income was due to bad debts and bankruptcies of clients. I used up all my available resources, (savings / sale-able assets / pensions) to rescue the business and pay necessary living expenses. I tried to keep up the payments to the credit cards but it became increasingly more difficult to the point where I kept hitting my banks overdraft limit and necessary living expenses were being bounced.

Due to the extent of the credit card DDs, any funds going into my account disappeared in a flash and put me back to square one.

After countless sleepless nights and a period of illness brought on by stress, I decided to take control and canceled all the credit card DDs from my bank account.

The relief from the stress and worry was almost instant, as I could now just about afford a meager existence on the minimum wage I could draw from my (slowly) recovering business.

 

Following receipt of payment reminders from all the credit cards, I sent SARs to them all and timed the responses. Most all came back within 40 days apart from a couple that demanded a signature. I created a new sig just for SARs and eventually received the responses.

Since then, I have been plagued with phone calls, letters and threats from a variety of collection agencies. I decided to ignore them all until an apparent and serious threat of imminent court action would turn up.

 

On 22/01/11, I received a solicitors letter dated 17/01/11, in connection with an MBNA credit card account, threatening imminent legal action after 31/01/11 should I not pay the total outstanding sum. I sent them a CPR letter on 27/01/11, 4 days before the deadline and waited for a response. Two weeks passed and no response so I sent another on 15/02/11.

On 17/02/11 I received a Northampton County Court Claim with an issue date of 11/02/11.

On 24/02/11 I received a letter from the solicitors acknowledging receipt of my second CPR letter of 15/02/11 and stating that a letter before action was sent to me on 17/02/11 (probably a typo referring to 17/01/11) and that because no response was received from me, despite three attempts to contact me by phone, legal proceedings were commenced on 11/02/11. They stated that "as my letter refers to the Pre-action Practice direction, it does not apply as proceedings have already been issued.". They go on to state: "In any event, your request appears to be in the format of a Subject Data Access Request, given that you have asked for details of data held about you by this office. A fee is payable upon making such a request, but no fee has been paid and therefore, we are not obliged to provide the information/documentation you have asked for. We trust this clarifies our position.".

 

I sent the Court an Acknowledgment of Service on 25/02/11 (within 14 days of day of service) and also sent a CPR 31.14 request to the solicitors. They responded in a letter dated 01/03/11, received 05/03/11 stating "We acknowledge receipt of your letter dated 25/02/11. We note you now require a copy of the contract referred to in the Particulars of Claim. A copy of this has therefore been requested from our client and the same will be forwarded to you once received."

I have not received any further communications since and now need to file a defence.

 

Having read through the forums, I am wary of the mistakes which can be made by sending in "embarrassed" defences, so would very much appreciate some urgent assistance in drafting an appropriate defence specific to these particulars.

 

Here is the "agreement" received in response to the SAR, it is a double-sided photocopy with the second document on the back of the first;

 

CCA002.pdf

 

Note: the SAR contains no copy statements, just line by line computer print of transactions with no account balances.

- there are no details of any transactions prior to 2003.

- the agreement has a tick in the box for PPI. As the agreement form was received at my workplace address I am fairly certain that I would have called them on the freephone number to help complete the application and that I may have been led by promise of acceptance should the PPI be selected, as it is something I would normally avoid.

 

Here is the default notice received from MBNA;

 

DN-20101210a.pdf

 

 

The POC from the Court Claim reads as follows;

"The claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about 21/03/1994 in the sum of xxxxxx

 

PARTICULARS a/c no: xxxx-xxxx-xxxx-xxxx

DATE ITEM VALUE

14/01/2011 Default Balance xxxxxx

Post Refri Cr NIL

TOTAL:- xxxxxx"

 

 

Note: I have found a statement for this account dated 23/12/1994.

- The statement shows a credit limit of £2500 (current statement CL is £12500, never requested an increase)

- The statement shows the PPI charge.

- The statement has a different account number to that used in recent years statements and that shown on the POC.

- I only had one MBNA account at that time (date on agreement) so I know it is the same account.

 

My apologies for the lengthy post, I am trying to be as concise as possible.

I have only 2 days left to file a defence so would very much appreciate your valued assistance as a matter of urgency.

Thank you in advance.

CCA001.pdf

Edited March 14, 2011 by merekatt

[rebel11]

Hi mere

 

Welcome to CAG

The guys will advise as soon as they are available.

[merekatt]

Thanks for the welcome, its taken me quite a while to compile that post so I'm off to get a merekatt-nap for a few hours.

Back soon

[merekatt]

I am back with some more background information;

At the time of the agreement I was full time employed and became self employed following redundancy ten years ago.

 

Following the onslaught of financial problems last year I had a plan to raise some capital via early retirement on some pensions. It would not have been sufficient to pay all the CC accounts off in full but should have been enough to make reasonable settlement offers on some where necessary and continue payments on others. I was scuppered whilst in the process of engineering this when the government suddenly raised the early retirement age. Now I have to wait a while longer for this option to be available again.

 

As a result, I have no funds available to make any settlement offers, nor I am able to meet any further repayments, even the minimums, as I am struggling to survive on a minimum wage income.

 

I am hoping that the agreement may be proved unenforceable as i do not trust the authenticity of the photocopy supplied in the SAR response.

Even though he account has not been used for a few years and the minimum payments were being met by DD, the balance has increased somewhat and I do not agree with the total amount being claimed.

 

I need to file a defence by 4pm tomorrow, please help. Thank you kindly.

Edited March 14, 2011 by merekatt

[merekatt]

Can anyone help me with this please?

I'm getting a bit desperate now.

Thank you kindly.

[diddydicky]

first= have you checked your first statement in 1994 to see that the interest charged on the statement is the same as detailed on the agreement?

 

second is the amount claimed in the DN to remedy the full amount owed to mbna or just arrears (have you checked to see if the figures are right)

 

third- it is likely that the agreement they sent you is a cut and paste job

 

para 8 has nothing to do with paying arreas- it is about termination by either party

 

so either they made a mistake or they have used t & C's on the back of your agreement that were not there when you signed it

 

are there any printers codes on either side of the copy agreement

 

can you post the front of it up- does it refer to the terms and conditions on the reverse or is it an application form

 

were you advised as to the PPI payments- did they ask questions as to your eligability or were you led to beleive that the card was conditional on taking out the PPI- you have to make positive assertions not ifs and maybe's

[merekatt]

Thank you for your response.

 

1) I cannot at present locate the very first statement. There was a fire at my property, a lot of paperwork was lost, some is still in storage. I need more time to search everywhere. I have managed to find a statement from Dec 1994 and it does show the same interest rate (APR 17.9%) as on the "conditions of use" copy provided from the SAR.

Having said that, I would expect that getting the interest rate correct would be a primary focus when reconstituting the conditions in a cut and paste exercise.

 

2) The amount claimed in the DN is the full amount owed. I do not think the amount is correct. The SAR did not contain any copy statements neither does it show any total balance, just pages of transactions going back to 2003. I would need more time to see if I still have the necessary statements available to be able to check the figures.

 

3) I agree and do suspect something is not right. There are what appears to be vertical fold lines on the "conditions of use" page which is supposed to be on the reverse of the front page where there is no sign of them. The two pages were supplied together as a double sided photocopy in the SAR response.

 

There is a printer code on the bottom right of the "conditions of use" page as can be seen in attachment here: CCA002a.pdf

 

The front is actually an application form but has this in section 10 above the signature box : "I accept and agree to be bound by the MBNA Visa Card Conditions of Use (as set out overleaf and as amended from time to time).", as can be seen in attachment here: CCA001.pdf

 

My understanding is that I was led to believe that the acceptance of the application was conditional on taking the PPI, as this is something I would vigorously avoid due to the additional cost and which I have not knowlingly taken out on any other credit card accounts.

Edited March 15, 2011 by merekatt

[merekatt]

Correction to 2) above:

The DN is requesting a payment which appears to be the amount of arrears, plus charges, within 30 days of the date of the DN. I will need more time to check if this is correct as I will have to locate the relevant statements.

 

Para 4: (v) of the conditions states " you must pay us immediately the amount of any excess over the credit limit, any arrears and any transaction made in breach of this agreement"

Para 8, as you pointed out, refers to termination of the agreement.

So either, the DN is factually incorrect or they pasted the wrong version of the conditions.

Edited March 15, 2011 by merekatt

[diddydicky]

now you need to search on the site to find the library of mbna terms and conditions and check yours- you may be able to establish which year they relate to- obviously if they are later than 1994 they will be looking a bit sick

 

have you ever made a s78 request for a copy of the argeement BTW?

[merekatt]

have you ever made a s78 request for a copy of the argeement BTW?

 

I am new to all this and don't really know what I am doing.

I have read many other threads to pick up what I know so far.

I do not know what the s78 request is.

 

I did send a CPR 31.14 request to the solicitors, Restons as below,

 

------

"Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the document mentioned in your Particulars of Claim:

 

1. The contract. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

You should ensure compliance with your CPR 31 duties and ensure that the document I have requested is copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me.

Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order."

------

 

They responded 5 days later, acknowledging receipt of my request letter and with this statement: "We note you now require a copy of the contract referred to in the Particulars of Claim. A copy of this has therefore been requested from our client and the same will be forwarded to you once received."

 

I have heard nothing since.

 

I just got in from work and telephoned the court to confirm the deadline for filing my defence. They were very helpful and confirmed I have until 4pm tomorrow. They confirmed I can file online or by fax. They gave me a fax number and I checked that the password was valid and that I could log in online whilst they were on the phone.

 

So now I have another 24hrs to set out my defence and file it by fax or online.

[diddydicky]

i would write to them and give them a further 7 days to provide the document you requested

 

look up and re print the court rules as to what they should have in their possession BEFORE they issue proceedings and ask why their client has commenced proceedings without having the agreement to support the claim and tell them that if they fail to respond you will apply for the claim to be struck out as an abuse of process

[merekatt]

I found a link to the MBNA library: "consumeractiongroup.co.uk/forum/content.php?463-Mbna-Agreements-application-Forms"

 

When I try to access it, I get this message:

 

merekatt, you do not have permission to access this page. This could be due to one of several reasons:

1. Your user account may not have sufficient privileges to access this page. Are you trying to edit someone else's post, access administrative features or some other privileged system?
   
2. If you are trying to post, the administrator may have disabled your account, or it may be awaiting activation.
   

[diddydicky]

maybe because i think you have to have 20 posts or something in order to access it

 

seems daft but it almost encourages you to go on to threads and make 20 meaningless posts - just so you can access it!

[merekatt]

i would write to them and give them a further 7 days to provide the document you requested

 

look up and re print the court rules as to what they should have in their possession BEFORE they issue proceedings and ask why their client has commenced proceedings without having the agreement to support the claim and tell them that if they fail to respond you will apply for the claim to be struck out as an abuse of process

 

Is there a template available for this letter?

I could get one in the post this afternoon if I'm quick.

[merekatt]

Ok, I have an empty letter formatted and ready to insert the content.

[merekatt]

An envelope and address label is also ready now.

Just need to know the correct format for the content.

[merekatt]

As I mentioned previously, I am new to all this and so don't really know what I am doing.

I am not familiar with the correct legal terminology and don't want to make any mistakes.

Therefore, I would very much appreciate some assistance in drafting this letter.

Thank you kindly.

[diddydicky]

look under CPR you should find the information you need

 

basically a claimant should NOT start a claim unless he already has the evidence to support a cause of action- if he does then he wastes court time and rescources and his actions are not condusive to the "overriding principles"

 

it is important that you search out and understand the principles and are not just "spoon fed" letters to write- when you dont fully understand what is being said

 

tough love!!

[merekatt]

I have looked under CPR on HMCS site and consequently at N1a and EX302.

I also looked at Practice Direction 7C - Production Centre

I cannot see any references to "a claimant should NOT start a claim unless he already has the evidence to support a cause of action" anywhere in these documents.

Should I be looking somewhere else?

[merekatt]

I found this in Practice Direction - Protocols;

 

3.1

 

A claimant may be found to have failed to comply with a protocol by, for example:

(a) not having provided sufficient information to the defendant, or

 

(b) not having followed the procedure required by the protocol to be followed (e.g. not having followed the medical expert instruction procedure set out in the Personal Injury Protocol).

 

 

 

Is this what you were referring to ?

[merekatt]

I am at a loose end now and need to file a defence within 18 hours.

Could somebody help me with this please ?

Thank you kindly.

[merekatt]

I have been awake all night reading other threads in an attempt to help myself.

The filing deadline for my defence is just 6 hours away and so far I have constructed the following;

 

1. The Claimant’s particulars of claim are vague and fail to disclose any cause of action. They appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR.

 

2. The claim fails to disclose sufficient information as required by the CPR - even making allowance for the Northampton Bulk Regime - the claim is missing vital information.

 

3. Without admission that any cause of action is shown by the Claimant, it is denied that the Claimant has a claim whether as pleaded or at all.

 

4. The Claimant has not supported the claim with the documents that the Defendant needs, to establish what contract it is that this action is based upon.

 

5. The Claimant has failed to comply with a reasonable request made under CPR 31.14 for disclosure and production of said contract as referred to in the claim.

 

6. Without clarification of the Claimant’s claim, the Defendant is extremely disadvantaged and the Claimant’s claim appears without merit.

 

7. Further to the above, the Defendant is unable to plead effectively or at all. The Defendant is embarrassed.

 

The POC only contains the term "contract" so I have left out any reference to any agreement, DN or the CCA 1974.

I have set out paragraph 5. so that the court may be aware of the existence of the CPR 31.14 request and the failure to comply.

 

Please could I have some comments ?

Thank you kindly.

[merekatt]

Only three hours left to filing deadline.

Could somebody please advise if this is the correct course of action ?

Thank you kindly.

[merekatt]

Time is almost up.

In the absence of further advice, I have no option but to file the defence as shown.

I hope I am doing the right thing.

I am fearful of being a lamb to the slaughter.

Thank you kindly.

[RR]

Make sure you check all the legal documetns MBNA have sent to you, they took me to court and backed out just before the case. I did have their PPI insurance, which clearly stated in the terms and condition the outstanding balance would be clearly, the insruance company confirm it was clearly but MBNA tried to get more than what was outstanding. I took them to the FOS and they knowingly changed all my accounts figures around (Fraud).

 

I also have a letter from the FOS stating MBNA are to help customers and let them make payments they can afford, MBNA are very nasty and will try anything to win. Check everything they have sent you. Make sure you ahve letters sent to them making an offer of payment even if it is £2 per month on each account, ask them to stop interest. Make sure you just keep sending these letters, MBNA will not reply.

 

 

Here's some background information to begin with;

 

I had been dutifully paying the minimum payments by DD on numerous credit card accounts for many years until early last year when I ran into serious financial difficulties due to loss of income. I am self employed and the loss of income was due to bad debts and bankruptcies of clients. I used up all my available resources, (savings / sale-able assets / pensions) to rescue the business and pay necessary living expenses. I tried to keep up the payments to the credit cards but it became increasingly more difficult to the point where I kept hitting my banks overdraft limit and necessary living expenses were being bounced.

Due to the extent of the credit card DDs, any funds going into my account disappeared in a flash and put me back to square one.

After countless sleepless nights and a period of illness brought on by stress, I decided to take control and canceled all the credit card DDs from my bank account.

The relief from the stress and worry was almost instant, as I could now just about afford a meager existence on the minimum wage I could draw from my (slowly) recovering business.

 

Following receipt of payment reminders from all the credit cards, I sent SARs to them all and timed the responses. Most all came back within 40 days apart from a couple that demanded a signature. I created a new sig just for SARs and eventually received the responses.

Since then, I have been plagued with phone calls, letters and threats from a variety of collection agencies. I decided to ignore them all until an apparent and serious threat of imminent court action would turn up.

 

On 22/01/11, I received a solicitors letter dated 17/01/11, in connection with an MBNA credit card account, threatening imminent legal action after 31/01/11 should I not pay the total outstanding sum. I sent them a CPR letter on 27/01/11, 4 days before the deadline and waited for a response. Two weeks passed and no response so I sent another on 15/02/11.

On 17/02/11 I received a Northampton County Court Claim with an issue date of 11/02/11.

On 24/02/11 I received a letter from the solicitors acknowledging receipt of my second CPR letter of 15/02/11 and stating that a letter before action was sent to me on 17/02/11 (probably a typo referring to 17/01/11) and that because no response was received from me, despite three attempts to contact me by phone, legal proceedings were commenced on 11/02/11. They stated that "as my letter refers to the Pre-action Practice direction, it does not apply as proceedings have already been issued.". They go on to state: "In any event, your request appears to be in the format of a Subject Data Access Request, given that you have asked for details of data held about you by this office. A fee is payable upon making such a request, but no fee has been paid and therefore, we are not obliged to provide the information/documentation you have asked for. We trust this clarifies our position.".

 

I sent the Court an Acknowledgment of Service on 25/02/11 (within 14 days of day of service) and also sent a CPR 31.14 request to the solicitors. They responded in a letter dated 01/03/11, received 05/03/11 stating "We acknowledge receipt of your letter dated 25/02/11. We note you now require a copy of the contract referred to in the Particulars of Claim. A copy of this has therefore been requested from our client and the same will be forwarded to you once received."

I have not received any further communications since and now need to file a defence.

 

Having read through the forums, I am wary of the mistakes which can be made by sending in "embarrassed" defences, so would very much appreciate some urgent assistance in drafting an appropriate defence specific to these particulars.

 

Here is the "agreement" received in response to the SAR, it is a double-sided photocopy with the second document on the back of the first;

 

[ATTACH=CONFIG]25777[/ATTACH] [ATTACH=CONFIG]25779[/ATTACH]

 

Note: the SAR contains no copy statements, just line by line computer print of transactions with no account balances.

- there are no details of any transactions prior to 2003.

- the agreement has a tick in the box for PPI. As the agreement form was received at my workplace address I am fairly certain that I would have called them on the freephone number to help complete the application and that I may have been led by promise of acceptance should the PPI be selected, as it is something I would normally avoid.

 

Here is the default notice received from MBNA;

 

[ATTACH=CONFIG]25778[/ATTACH]

 

 

The POC from the Court Claim reads as follows;

"The claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about 21/03/1994 in the sum of xxxxxx

 

PARTICULARS a/c no: xxxx-xxxx-xxxx-xxxx

DATE ITEM VALUE

14/01/2011 Default Balance xxxxxx

Post Refri Cr NIL

TOTAL:- xxxxxx"

 

 

Note: I have found a statement for this account dated 23/12/1994.

- The statement shows a credit limit of £2500 (current statement CL is £12500, never requested an increase)

- The statement shows the PPI charge.

- The statement has a different account number to that used in recent years statements and that shown on the POC.

- I only had one MBNA account at that time (date on agreement) so I know it is the same account.

 

My apologies for the lengthy post, I am trying to be as concise as possible.

I have only 2 days left to file a defence so would very much appreciate your valued assistance as a matter of urgency.

Thank you in advance.