Help please - court case against mbna ** first ever **

[citizenB]

Post 14 in the link below. However, I have copied the CPR18 over for you. See how the requests are in fact questions.. if they respond by advising that yes, they did or do have.. then you can ask to see

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?323575-cabot-citicard-and-court-papers-its-10yrs-old-and-SB-ed&p=3589704&viewfull=1#post3589704

 

xx

 

Your Name

Your Address

IN THE XXXXXXXXX County Court

CLAIM NO:

BETWEEN:

XXXXXXXXXX

Claimant

and

XXXXXXXXXXX

Defendant

PART 18 REQUEST FOR FURTHER INFORMATION

To: XXXXXXXXXX (claimant)

　

Please answer the following questions:

1. Upon what date was the last payment made on the account?

2. What was the source, method and amount of the payment?

3. Was a Default Notice issued pursuant to section 87 of the Consumer Credit Act 1974 (as amended) and if so:

a] Upon what date, for what amount and what was the date for remedy of the breach?

b] Was the issuance of the Default Notice noted in the communications log?

4. Does the amount claimed include charges, and if so what amount?

　

　

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU

xx

[the worm that turned]

Post 14 in the link below. However, I have copied the CPR18 over for you. See how the requests are in fact questions.. if they respond by advising that yes, they did or do have.. then you can ask to see

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?323575-cabot-citicard-and-court-papers-its-10yrs-old-and-SB-ed&p=3589704&viewfull=1#post3589704

 

As ever thanks for this. I will draft this and send Monday. Perhaps I should consider some other questions specific to my case, wdyt?

[the worm that turned]

Don't chase CPR request,s they are all invariably sent recorded and the claimant as received and signed for.Keep your eye on your defence date and if it appears that no response will be forth coming then request an extension CPR 15.5, this then enables the claimant to take another 28 days to respond and dig their hole deeper.

 

Andy

 

Thanks. As for a response, I'm tempted to qualify a couple of things with them, most notably the fact they refer to Credit Agreement but mention Contract in POC. These are different in legal land

[the worm that turned]

If the Claimant fails to respond appropriately to 31.14, 18 (being sent Mon) or LBA for SAR then do you suggest that a 15.5 can be sent to the Claimant? OR does this go straight to the Court requesting more time to prepare a defence?

 

Thanks

 

TWTT

[AndyOrch]

You can incorporate CPR 15.5 within your CPR 31.14.

 

Andy

[the worm that turned]

You can incorporate CPR 15.5 within your CPR 31.14.

 

Andy

 

Hi Andy - my CPR 31.14 can be found here (post #15). Although I asked them to agree to more time I didn't refer to CPR 15.5 and they point blank refused in their response saying that at this stage I should know my defence (even though their claim relies on the alleged contract that I haven't received).

 

So should I have referred to CPR 15.5 in my 31.14 letter or can I just follow up to the 31.14 letter mentioning 15.5 and extra time, OR something else???

 

Thanks

 

Wormy

[AndyOrch]

Ho Worm

 

I notice you have refrained from mentioning which Solicitor is acting here.(Very wise)Perhaps PM the name and then I will advise the next course of attack.

 

Regards

 

Andy

[AndyOrch]

Legal Definition of a Contract

 

 

contract 1) n. an agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration. Since the law of contracts is at the heart of most business dealings, it is one of the three or four most significant areas of legal concern and can involve variations on circumstances and complexities. The existence of a contract requires finding the following factual elements: a) an offer; b) an acceptance of that offer which results in a meeting of the minds; c) a promise to perform; d) a valuable consideration (which can be a promise or payment in some form); e) a time or event when performance must be made (meet commitments); f) terms and conditions for performance, including fulfilling promises; g) performance. A unilateral contract is one in which there is a promise to pay or give other consideration in return for actual performance. (I will pay you $500 to fix my car by Thursday; the performance is fixing the car by that date). A bilateral contract is one in which a promise is exchanged for a promise. (I promise to fix your car by Thursday and you promise to pay $500 on Thursday). Contracts can be either written or oral, but oral contracts are more difficult to prove and in most jurisdictions the time to sue on the contract is shorter (such as two years for oral compared to four years for written). In some cases a contract can consist of several documents, such as a series of letters, orders, offers and counteroffers. There are a variety of types of contracts: "conditional" on an event occurring; "joint and several," in which several parties make a joint promise to perform, but each is responsible; "implied," in which the courts will determine there is a contract based on the circumstances. Parties can contract to supply all another's requirements, buy all the products made, or enter into an option to renew a contract. The variations are almost limitless. Contracts for illegal purposes are not enforceable at law. 2) v. to enter into an agreement.

 

Think that puts it into perspective Worm:roll:

 

Get back to you later

 

Andy

Edited December 5, 2011 by Andyorch

[the worm that turned]

... Contracts for illegal purposes are not enforceable at law. ...

 

What are you supposing?

 

I look forward to your response - PM me if necessary

Edited December 5, 2011 by the worm that turned

[AndyOrch]

Hi WTT

 

 

Nothing sinister there it was bolded in error. Can you confirm you did a separate section 78 request and if so they complied?

Whats documents are you wishing them to furnish?

 

Andy

[the worm that turned]

Hi WTT

 

 

Nothing sinister there it was bolded in error. Can you confirm you did a separate section 78 request and if so they complied?

Whats documents are you wishing them to furnish?

 

Andy

 

I did a S78 a long time ago. They provided reconstituted agreement, 2-sided photocopy of a document they allege is a copy of an original credit agreement, copy of terms and conditions allegedly from time they claim agreement was signed, signed statement.

 

Have they fulfilled their requirements?? Good question. Perhaps.

 

I require them to provide documents following SAR from Dec 2010 and provide documents referred to in POC if they exist (e.g. Default Notice, Termination of Agreement and alleged contract)

 

Basically I have nothing to prepare a Defence with!!

[AndyOrch]

I did a S78 a long time ago. They provided reconstituted agreement, 2-sided photocopy of a document they allege is a copy of an original credit agreement, copy of terms and conditions allegedly from time they claim agreement was signed, signed statement.If its a reconstituted then it wont be a photocopy, rather a crisp new A4 CCA with all the details of the agreement including all the prescribed key points, your full name and address but with no signatures ( so they have sent a microfiche copy of an application?)

Have they fulfilled their requirements?? Good question. Perhaps. See above

 

I require them to provide documents following SAR from Dec 2010 and provide documents referred to in POC if they exist (e.g. Default Notice, Termination of Agreement and alleged contract) And your CPR 31.14? They don't refer to any Default Notice or Termination only a " Contract " which is what you describe above so in all intense and purposes there is nothing else to disclose.

Basically I have nothing to prepare a Defence with!!

 

I don't see any need to further this with a CPR 18 request, seems pointless, but rather just submit a defence pleading vagueness of P.o.C and request they resubmit a particularised P.o.C pursuant to CPR PD 16.The DJ will find for you on this approach, request a new P.o.C and then you can push for the DN/Agreement as they will have to detail them in a more particularised P.o.C. So you submit a vague response in reply ...... slowly slowly catch the monkey.That would be my approach neither admit or deny until they wish to expand.

Regards

 

Andy

[the worm that turned]

I don't see any need to further this with a CPR 18 request, seems pointless, but rather just submit a defence pleading vagueness of P.o.C and request they resubmit a particularised P.o.C pursuant to CPR PD 16.The DJ will find for you on this approach, request a new P.o.C and then you can push for the DN/Agreement as they will have to detail them in a more particularised P.o.C. So you submit a vague response in reply ...... slowly slowly catch the monkey.That would be my approach neither admit or deny until they wish to expand.

 

Regards

 

Andy

 

Perhaps my response wasn't entirely clear. They provided a reconstituted agreement (missing name if I recall) AND the photocopy documents I described above.

 

IMO a contract and agreement are NOT the same thing. If they had referred to a credit agreement in the POC I would still have requested this because the S78 request is not proof of existence of anything NOW (i.e. it is a snapshot at the time of request, hence ability to keep asking each month if you like).

 

They specifically mention a contract in the POC. An agreement is not necessarily a contract and so far I have not seen the original (or even a notarised/verified copy) of either.

 

The POC refers to a default balance, therefore they are mentioning a default and as such I would like to use the CPR 18 to request documents in relation to defaults. They also mention an amount they allege I owe, and again I require evidence for this (via CPR 18).

 

Have you ever seen a POC that specifically refers to a "contract" before my example?

 

Why does the template for Part 18 requests on here provide 14 days to respond? Do the CPR PD's propose 14 rather than 7?

 

Thanks as ever TWTT

[AndyOrch]

Perhaps my response wasn't entirely clear. They provided a reconstituted agreement (missing name if I recall) AND the photocopy documents I described above. They are fully entitled for a Sec 77/78 request.

 

IMO a contract and agreement are NOT the same thing.Well I posted the legal definition above If they had referred to a credit agreement in the POC I would still have requested this because the S78 request is not proof of existence of anything NOW (i.e. it is a snapshot at the time of request, hence ability to keep asking each month if you like).You can request the original at allocation because thats the only one they can use to enforce.

 

They specifically mention a contract in the POC. An agreement is not necessarily a contract and so far I have not seen the original (or even a notarised/verified copy) of either. See above

 

The POC refers to a default balance, But not a breach or issuing one therefore they are mentioning a default and as such I would like to use the CPR 18 to request documents in relation to defaults. They also mention an amount they allege I owe, and again I require evidence for this (via CPR 18).Your Choice they wont respond I assure you

 

Have you ever seen a POC before that specifically refers to a "contract" before? Numerous

 

Why does the template for Part 18 requests on here provide 14 days to respond? Do the CPR PD's propose 14 rather than 7? Either alter to suit, there is no provision on CPR time frames just a civil time to respond

 

Thanks as ever TWTT

 

 

Regards

 

Andy

[the worm that turned]

Regards

 

Andy

 

Cheers Andy. That makes perfect sense.

 

So wrt Part 18 it is most probably superfluous. I'm glad I held fire now and didn't just send without your input

 

I will now take a look at a defence pleading vagueness of their POC and requesting they submit a new fully particularised POC.

 

There is of course the other option you/citizenB suggested, whereby if they do not provide the alleged contract mentioned in POC and agree to an extension of time then I could request for the court to order them to with and unless order included.

 

Wdyt?

[AndyOrch]

It is an option but not always fruitful, take a read of Newmans thread.I note you refer to a DSAR done before litigation that was never fully complied with.

I don't normally advocate a DSAR once litigation has commenced but I have recently adapted the following using an amalgamation of a standard DSAR and a post

adaptive, you could consider sending this to the OC ( Not the Solicitor ) I have had some rather very forth coming responses with this technique.

 

"Requesting a DSAR once litigation as commenced can be fraught.It may be the case that they have issued a claim and you do not have all the information that is yours as of right in order to get a fair hearing. This violates the overriding objective of the Civil Procedure Rules, which are essentially about placing the parties on as equal a footing as possible. Where you lack the requisite information to conduct your defence properly, and they have not complied with a previously issued Subject access request, this may be sufficient to get the claim set aside. Where they issue claim and you have not issued a Subject access request, you should do so immediately (also citing CPR 31.6 which they will try to wriggle out of) and apply to the court for an adjournment, pending their full compliance with your Subject Access Request. That will buy you some breathing space to organise yourself."

 

 

This is substantially the same as the SAR issued prior to litigation. Once in litigation you can amend it to include details of the claim:

YOUR ADDRESS

THE DATE

THE DATA CONTROLLER(S)

 

 

Dear Sirs,

In respect of the following claim:

Claimant

V

YOUR NAME

CLAIM NUMBER: XXXXXXX

IN THE XXXXX county court

 

Then use the same letter, here…

 

 

Your final paragraph should then read something along the lines of (but feel free to customise to your own circumstances):

As you have issued a claim for XXXXXXXXX I hereby advise you of the following. I will vigorously defend this claim and will argue that your claim is falsely premised and vexatiously sought. It is falsely premised because your particulars of claim inaccurately and erroneously state the arrears amount. The arrears consist of charges and interest upon charges which cannot be stated as arrears. It is vexatiously sought as it is not a measure of last resort as required by the Civil Justice Council’s pre-action protocol of October 2008. Further I will draw to the court’s attention to the necessity of submitting an embarrassed defence if you do not comply in full and within a time scale that allows myself the opportunity and right to conduct my defence in the light of all relevant information. Under these circumstances an adjournment will be requested in order to allow for you to observe your duties under law and comply with this subject access request.

You are also reminded of the Civil Procedure Rules. 31.6 provides that:

Standard disclosure requires a party to disclose only -

(a)the documents on which he relies; and

(b)the documents which –

(i)adversely affect his own case;

(ii)adversely affect another party’s case; or

(iii)support another party’s case; and

©the documents which he is required to disclose by a relevant practice direction.

 

Yours faithfully

 

Regards

 

Andy

[the worm that turned]

It is an option but not always fruitful, take a read of Newmans thread.I note you refer to a DSAR done before litigation that was never fully complied with.

I don't normally advocate a DSAR once litigation has commenced but I have recently adapted the following using an amalgamation of a standard DSAR and a post

adaptive, you could consider sending this to the OC ( Not the Solicitor ) I have had some rather very forth coming responses with this technique.

 

"Requesting a DSAR once litigation as commenced can be fraught.It may be the case that they have issued a claim and you do not have all the information that is yours as of right in order to get a fair hearing. This violates the overriding objective of the Civil Procedure Rules, which are essentially about placing the parties on as equal a footing as possible. Where you lack the requisite information to conduct your defence properly, and they have not complied with a previously issued Subject access request, this may be sufficient to get the claim set aside. Where they issue claim and you have not issued a Subject access request, you should do so immediately (also citing CPR 31.6 which they will try to wriggle out of) and apply to the court for an adjournment, pending their full compliance with your Subject Access Request. That will buy you some breathing space to organise yourself."

 

 

This is substantially the same as the SAR issued prior to litigation. Once in litigation you can amend it to include details of the claim:

YOUR ADDRESS

THE DATE

THE DATA CONTROLLER(S)

 

 

Dear Sirs,

In respect of the following claim:

Claimant

V

YOUR NAME

CLAIM NUMBER: XXXXXXX

IN THE XXXXX county court

 

Then use the same letter, here…

 

 

Your final paragraph should then read something along the lines of (but feel free to customise to your own circumstances):

As you have issued a claim for XXXXXXXXX I hereby advise you of the following. I will vigorously defend this claim and will argue that your claim is falsely premised and vexatiously sought. It is falsely premised because your particulars of claim inaccurately and erroneously state the arrears amount. The arrears consist of charges and interest upon charges which cannot be stated as arrears. It is vexatiously sought as it is not a measure of last resort as required by the Civil Justice Council’s pre-action protocol of October 2008. Further I will draw to the court’s attention to the necessity of submitting an embarrassed defence if you do not comply in full and within a time scale that allows myself the opportunity and right to conduct my defence in the light of all relevant information. Under these circumstances an adjournment will be requested in order to allow for you to observe your duties under law and comply with this subject access request.

You are also reminded of the Civil Procedure Rules. 31.6 provides that:

Standard disclosure requires a party to disclose only -

(a)the documents on which he relies; and

(b)the documents which –

(i)adversely affect his own case;

(ii)adversely affect another party’s case; or

(iii)support another party’s case; and

©the documents which he is required to disclose by a relevant practice direction.

 

Yours faithfully

 

Regards

 

Andy

 

This looks interesting. I will read and re-read it but to be sure you have the full picture I have already written to MBNA with a Final Notice before Legal Proceedings in relation to the SAR and presumably they are aware their solicitors have commenced proceedings.

 

So now I have to consider exactly what options I have. Ultimately if I don't receive the info from the SAR or the CPR 31.14, which pretty much looks certain to be unlikely for the latter, I will need to file for more time/adjournment.

 

Is there the option for it to be struck out due to their failings?

 

All starting to get a bit confusing now!

[AndyOrch]

Its only an option as I stated and one to be considered.There is the option to force disclosure 5/10 it works but as I stated in Newmans thread it back fired on him and now must proceed with a fully particularised defence without the disclosure.The fact that you have issued an LBA on the claimant with regards to none compliance of your original DSAR request is and remains a separate matter to this claim (For the moment unless you try to encompass as I have already advised)

Having given your dilemma a lot of thought I really do think the softly softly vague approach may work and entice them out using the court claim procedures.They plead vague you respond vague you request clarification the DJ orders clarification, they clarify and then they go into detail, then you have them and force disclosure.

They cant disclose the DJ orders an unless and bingo the claim is struck out. Not cost you a penny.

You can issue all the CPRs and applications at your cost but unless you get them to expand their plea they will play you and the DJ off.Thats why they plead with so little detail and effectively hide behind the CPR.

 

Regards

 

Andy

[the worm that turned]

Its only an option as I stated and one to be considered.There is the option to force disclosure 5/10 it works but as I stated in Newmans thread it back fired on him and now must proceed with a fully particularised defence without the disclosure.The fact that you have issued an LBA on the claimant with regards to none compliance of your original DSAR request is and remains a separate matter to this claim (For the moment unless you try to encompass as I have already advised)

Having given your dilemma a lot of thought I really do think the softly softly vague approach may work and entice them out using the court claim procedures.They plead vague you respond vague you request clarification the DJ orders clarification, they clarify and then they go into detail, then you have them and force disclosure.

They cant disclose the DJ orders an unless and bingo the claim is struck out. Not cost you a penny.

You can issue all the CPRs and applications at your cost but unless you get them to expand their plea they will play you and the DJ off.Thats why they plead with so little detail and effectively hide behind the CPR.

 

Regards

 

Andy

What you say makes perfect sense. In the words of my heroes the Two Ronnies, I'm like the Policeman investigating the case of the theft at the toilet manufacturer's warehouse... I have nothing to go on!

 

Sorry!

 

Will sleep on it all and start a-fresh tomorrow.

 

Thanks again

 

TWTT

[AndyOrch]

Love the Two Ronnie's now where's them fork handles:lol:

 

Andy

[the worm that turned]

So what's the deal with termination notices for credit cards?

 

Are CC companies required to issue a termination notice prior to taking legal action?

 

I'm just checking through my paperwork to see what I have and haven't received.

[citizenB]

I think the only legal requirement is that they arent allowed to terminate until they have issued a Default Notice.

 

But the usual procedured would be Default Notice, Termination Notice, Formal Demand, Letter before Action. Then they could honestly say they have complied with pre action protocol.

[the worm that turned]

Thanks CitizenB for the above.

 

I've been discussing with a solicitor recently who informed me that a section 78 breach can be remedied at any time. I am certain this is true however my question is this:

 

Can a creditor bring about proceedings when they are in default following a breach of section 78, regardless of whether they remedy that breach AFTER bringing about proceedings?

[AndyOrch]

Thanks CitizenB for the above.

 

Can a creditor bring about proceedings when they are in default following a breach of section 78, regardless of whether they remedy that breach AFTER bringing about proceedings?

 

No because the account is in dispute and they are in breach, litigation can only commence after complience.

 

Andy

[the worm that turned]

No because the account is in dispute and they are in breach, litigation can only commence after complience.

 

Andy

 

Well they have provided me with a new set of original terms and conditions that I assume they will now be relying on (as part of 31.14 request). The reason they have done this is because the previous set they provided to me (in response to S78) had two entire sections missing!!!

 

So - the facts are that the account was in dispute when they issued proceedings (commenced claim) as such, do I have grounds for it being struck out on these grounds?