County Court Claim - Hillbillies (prev MBNA)

[citizenB]

The DoA will as they claim, only show that a batch of accounts was sold/purchased. I never understood this. Surely for them to prove that a sale was made and when, it would need to be itemised on the Deed ?

 

Not receiving a NoA did use to be a good item to sling into a defence. Again I dont really understand this. No, a date does not have to be present on the NoA, however if there is one.. it is required to be accurate. That is all I really know.

 

Whether it helps or not.. the following is an extract from a letter that was drafted for me by someone - to send out to DCAs when they claimed to have been assigned an account..

 

 

Under s136 of The Law of Property Act 1926, please take note that for any absolute

Assignment to be effective, the Assignment must have been made to you – the Assignee

- in writing, and must have been sent to you under the hand of the Assignor. I shall assume in this case the Assignor would appear to be ORIGINAL CREDITOR.

In line with the above, please take note that I am now entitled to see sight of the written Assignment to which you appear to refer. This document may also be entitled – or referred to - as the Sale Agreement or the Deed of Assignment.

I hereby request to be sent a full copy of the written Assignment, including any and all sale agreement clauses and terms that may be mentioned or referenced within it. The document should not be redacted in any way. Should you chose to disregard this, please be so kind as to advise the Law upon which you rely that allows you to redact or

withhold any such details.

I can support the validity of my request to see sight of the Assignment via established and binding Case Law. Please refer to Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824, specifically the comments by Lord Denning repeated below for your convenience:

“It seems to me to be unnecessary that it should give the date of the assignment so long as it makes it plain that there has in fact been an assignment so that the debtor knows to whom he has to pay the debt in the future. After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge. But the notice itself is good, even though it gives

no date.”

 

[Battlescars]

ok thanks again CB.

 

One more q (I think). Do I have to say i wish to claiming costs at outset for my Defence or can these be counterclaimed at a later date. i believe I have to choose which option regarding MCOL.

[citizenB]

Erm, dont know about that Battlescars - are you sure you have to say if you are claiming costs or counter claiming !!

[Battlescars]

i need help with a PART 20 counterclaim to be added to my defence. I am submitting it tonight so need urgent help.

 

I want to claim:

unfair charges with restitution interest

LIP costs

any other charges that may come to light.

 

I have a draft of one by am struggling with bit in red. I've already done all the calculations (not too sure how to add this onto MCOL) etc..

 

 

Part 20 Claim

 

34. The defendant/Part 20 claimant intends to claim sums paid to the claimant/Part 20 defendant in relation to penalty Charges Incorporated within the sum demanded by the claimant/Part 20 defendant are sums claimed for their administration fees, late payment charges and like provisions.

35. The defendant/Part 20 claimant refers to As a consequence of the claimant/Part 20 defendant failure to provide documents, the defendant is unable to plead the Part 20 claim with particularity. I never actually asked for statements at my CPR 31.14 request, does this matter?? if so, what can I say here

 

36. And the defendant/Part 20 claimant claims:-

i) An order requiring the claimant/Part 20 defendant to disclose statements of account covering the entire period of the alleged agreement and a copy of the alleged agreement.

ii) £1141.85 unfair charges including restitution interest

iii)Additional unfair charges and restitution interest once a full list of transactions and charges has been obtained

I haven't including LIP costs, do i at this point?

I haven't included PPI misselling costs, do i at this point?

[Battlescars]

Erm, dont know about that Battlescars - are you sure you have to say if you are claiming costs or counter claiming !!

 

Hi Cb, thought you'd gone for the night, glad your back. See my last post. Looks like it's best to put a counterclaim in defence as per CPR 20.4. Don't need to get courts permission then.

 

Can you check out my last post plz.

[citizenB]

I have flagged your last post for site team..

[citizenB]

Hi Cb, thought you'd gone for the night, glad your back. See my last post. Looks like it's best to put a counterclaim in defence as per CPR 20.4. Don't need to get courts permission then.

 

Can you check out my last post plz.

 

 

I really havent any experience in this, Battlescar.. I have flagged your post for assistance from the site team.

[Battlescars]

okey dokey, yep, cross posts there I think. I'll wait for the site team then. tipped your scales too, best i can do for now!

[Battlescars]

Hey CB, Never got any advice on what I needed to do so had to submit what I had last night...except MCOL website wouldn't work in that it wouldn't accept my (even filtered down 122 lines for MCOL) defence. APPARENTLY doesn't recognise extension of defence dates and so doesn't accept these via the website once the original defence date has been reached. You have to send it in post, email or fax. (I never knew that)!

 

I had no alternative but to email it to them which they acknowledged receipt of.

 

2 questions:

 

does this mean that I have submitted in time if they don't put it on in time as I am aware they have 5 days backlog? I spoke to them first thing who said they would put it on (when they get to it) but they get 100's over the weekend so does take time

 

should I send an email copy to the claimant?

 

PS. in work so hard to get to CAG.

Edited July 2, 2012 by Battlescars
in work

[citizenB]

Speak to Northampton - confirm that they have accepted your defence in time.

 

Yes, there is a limited number of characters - I think 8,000.

 

I am sorry you were unable to obtain any more advice last night - your request for more help came rather late in the day and as all site team are volunteers they were probably enjoying a few moments with their families before the new week started.

[NewToTheFight]

You were very late in the day with your defence ideas, people like me who have no knowledge take time to digest your thoughts & to try to help.

Even those with legal knowledge take time & you do have to remember that they have lives as well.

 

My thoughts are based on a quick read through your defence

1) Your rebuttal of the points raised in the POC are not very clear.

2) Now your defence is submitted it will cost you if you need to change it

3) Familiarise your self with the salient points, find case law to support your arguments

4) Be prepared to fight your corner.

 

In order for them to obtain judgement they will need to prove that you signed an agreement which contained the required terms.

Did you? Do you know what those terms are? Which act covers this? If you don't know, find out. Get a copy of the relevant act & know the pertinant points inside out so that when you are in front of the judge you are more have more knowledge than him / her. Esp with regard to S127(3) and how it effects you.

They will need to have terminated your account in the correct manner in order to enforce. Are you aware of how they need to do this? Are you aware of how a faulty DN may damage their case & can you use this to your advantage? If not , find out. Fid the sections of the Act which help you & become an expert on them. Then find case law to suppport your point of view.

Research the Law Of Property Act which covers the assignment, know how it refelcts upon your case & how it helps you.

Find out about Notices of Sums in Arrears, they have to have specified wording or they are invalid, check yours.

Check the amount of the claim, make sure that you can prove excessive charges which wil make the amount claimmed incorrect.

If you were missold PPI make sure you can identify this & how much the claim amount has been inflated because of this, and how it makes a difference to you.

If you reclaim PPI & are succesful does that just reduce the value of the debt or do you get the money? If it reduces a debt that is not enforceable does it matter? or are you better served rebutting this claim in such a way that you do not have to repay the debt?

Have they complied with your S77 request (I assume you have made one) correctly? Were you living at the address on the 'application form' which you receive back from them at the time of the application? This can be fatal to their claim if you were not.

 

We can't do this for you but we can help if there is time

But rest assurred you will have to be on your top game to win this on the day.

 

I went to court, I had been advised by a 'barrister' on here, my lack of experience meant that I was unable to force home an advantage were the claimant had admitted in writing they did not hold an agreement - I should have won hands down due to S127(3).

It cost me £7k bacause I didn't know my stuff well enough.

Please don't follow my route.

 

Some case law you will need:

HFC Vs Kotecha

Harrison Vs Link Financial

Brandon Vs Amex

 

You will also need

1974 CCA (original, pre ammendments)

1925 Law of Property Act

 

 

NTTF

[NewToTheFight]

Oh and also keep a track of the time you spend on research

If you can prove you spend 100hours finding out, preparing etc it will come in handy when it comes to your claim for costs later

When you win!!

[Battlescars]

Speak to Northampton - confirm that they have accepted your defence in time. Did call and he said the above. I also sent it to Northampton email and got receipts and acknowledgment for both emails. He also said wouldn't know until tomorrow so call back then.

 

Yes, there is a limited number of characters - I think 8,000. Just said 122 lines. but even then when I removed the dodgy symbols and shortened it it wasn't having it. After phone call to them this morning he said the above in previous post.

 

I am sorry you were unable to obtain any more advice last night - your request for more help came rather late in the day and as all site team are volunteers they were probably enjoying a few moments with their families before the new week started.

That's ok, i was hoping a bit. I've missed hours of family life because of this.

 

I don't think there's anymore I can do to be honest except maybe email the defence to claimants? Good idea or not? if they do go for judgment, I'll be able to get it set aside if needed won't i?

[NewToTheFight]

Set asides only happen for specific reasons, not sure what the criteria are but you may not have fulfilled them.

I would write , recorded delivery, to the court explaining the problem & that you did everything within your power to comply with the court deadline, you then submittted by email & have a receipt to show delivery (I'd print a copy & enclose it). Finish your letter asking them to confirm that they view your defence as having been delivered in time.

 

Just my 2p worth

[DonkeyB]

Sorry, a bit late to this, but I think some of the defence is a little off beam.

 

First up, there is absolutely no relevance to your point about MBNA selling the account before the date for remedy identified in the default notice (though you don’t rely on this in your defence). An account can be sold at any time. Selling an account is not termination. However, it is clear that Hillesden were not going (in any way) to service the account. The simple fact is that your credit would be reduced to zero, and all they would have been able to do was offer you a repayment schedule. However, Hillesden have acted as if the original DN was valid. If it was not, it becomes their responsibility to remedy the situation – they effectively bought a live account.

 

If the DN was invalid, then I’m afraid it most certainly CAN be remedied by the issue of a new DN. That’s now established case law. But this new DN would have had to come from Hillesden. And clearly there was none issued before legal action was taken. This is a valid defence – the fact that action cannot be taken without a valid DN. Incidentally, were the OFT guidelines included with the original DN?

 

Another question you might have addressed a bit more directly which could prove fatal to their case is whether the full T&Cs were present at the time of signing, as required by Waksman in Carey v HSBC, but this is only really useful if you can categorically deny they were present.

 

One of your biggest points of contention is indeed the discrepancies in the T&Cs. There is no indication anywhere of what the original clauses 1 and 2 are, or where they are. The recon original T&Cs don’t have them, and refer to their being in the ‘agreement’. But no other document has been supplied with clauses 1 and 2, so the T&Cs – and therefore the agreement, part of which comprises the T&Cs – is clearly incomplete. This gives rise to a serious doubt that the full T&Cs were present at the time of signing, which is a defence.

 

What you have stated is that the clause you breached was not in the original T&Cs – but that is not relevant. The clause was in the varied T&Cs applicable at the time the DN was issued. That’s a red herring, IMO.

 

In theory the claimant could withdraw the claim, issue a compliant DN, and come at you again. I believe your best defence remains (a) invalid DN, but this is short term and could in theory be rectified; and (b) no full T&Cs present at the time of signing the agreement, which is fatal to their claim as it makes the agreement unenforceable according to the requirements laid out in Carey. But (b) relies on a refutation of the assertion that T&Cs were present – their own recon appears to make it unlikely. Refutation (rather than denial) requires a statement of fact from you, backed by their own evidence.

 

Have a read of Harrison v Link, to see how the judge ripped apart MBNA’s contention that its systems were infallible. The evidence of Mr Harrison and his meticulous retention of things he was actually sent won it for him.

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

 

There’s also a problem for Hillesden in that their corrupt data means they cannot even state when a Notice of Assignment was sent. Again, that is not a defence, as you now clearly know they bought it, but they can only claim interest from the provable date you were informed of the change of ownership.

 

All that said, there’s a fair bit in your defence which will make Hillesden think hard.

[NewToTheFight]

Donkey

If the OC issued an invalid DN, sold it to a DCA before rectification what would happen if the debtor rectified before the due date

Especially if the DCA were unable to provide credit services

Can the DCA issue a DN on an account that must have been terminated in order that Court action can be taken?

 

Surely great strength must be taken from the signing (or not) of a compliant agreement. The OC would have to provide a signed copy, complete with T&Cs which it can prove were present at signing.

I believe....

[DonkeyB]

Donkey

If the OC issued an invalid DN, sold it to a DCA before rectification what would happen if the debtor rectified before the due date

Especially if the DCA were unable to provide credit services

The DCA/debt buyer has a Consumer Credit Licence. But it’s a bit of a red herring, because all they have to do is reduce your credit limit to zero, or use (I think) s91 of the CCA to terminate the account another way (though it takes time). The point is that clearly Hillesden have no intention of providing facilities – but that’s their problem, and their potential breach if the debtor does rectify the breach.

 

Can the DCA issue a DN on an account that must have been terminated in order that Court action can be taken?

The point is, IMO, that it was NOT terminated. Again, case law has determined this. If the DN was bad, the account cannot be terminated. A new DN can be issued. It’s in some of the case law you posted (Brandon). So if the DN was bad – and Brandon’s appeal said it was not a de minimis issue – then a claim cannot succeed (they can always bring a claim – it will just fail if properly defended). If Hillesden plough on and lose on the DN issue, they will struggle to get permission to reissue a claim.

 

Surely great strength must be taken from the signing (or not) of a compliant agreement. The OC would have to provide a signed copy, complete with T&Cs which it can prove were present at signing.

I believe....

Exactly. The app form does state ‘I have read and agreed T&Cs etc’, but the recon T&Cs supplied – to the court – are clearly wrong, and therefore unenforceable. But it’s only a strong defence if Hillesden fail to get their ducks in order, or get the proper T&Cs (which should also contain a name and contemporaneous account holder address). In my view, that would also require a WS from MBNA about how these cards were issued (ie. evidence of the pack provided), and a read of the Harrison case proves MBNA are not the best at telling the truth and backing it up. The OP’s defence really could have done with some proper reference to case law and some specifics on s61 etc.

 

The PoC is what needs to be answered. Hillesden clearly claim that the account was terminated BEFORE they acquired it, which can be disproved. The account has never actually been terminated, therefore judgment cannot be given in Hillesden’s favour. You need to answer what they say in the PoC. I think their own PoC stuffs ’em if it’s answered head-on. That’s the ONLY instance in which the date of sale is relevant – if it counters what’s said in the PoC, which it appears to.

 

 

Donkey

[DonkeyB]

POC - The claimant's claim is in respect of a credit facility, ACCOUNT NUMBER, provided by MBNA at the defendant's request on (over 10yrs ago). The agreement was subsequently defaulted. Failure to meet requests for payment resulted in account the account being terminated. On (2 days after remedy date on DN approx 2yrs ago) all legal and beneficial interest for the monies was assigned to Hillbillies. The defendant was duly notified in writing of the assignment and that a balance of (over £5k) was due. The balance of (over £5k - minus tokens) remains owing from the defendant.

 

BS

 

Battlescars, what documentary evidence do you have for the account sale date of 18 December (or whenever, before the remedy date)? Can’t see it anywhere in your docs – apologies if it’s there and I’ve missed it. I was wondering if this discrepancy is how they have accidentally found their NoA data is, er, ‘corrupt’.

Edited July 2, 2012 by DonkeyB

[Battlescars]

Hi all quick update, it looks like my defence was received today so all well there in the end PHEW! I need to have a quick read through the thread and will try and answer any questions.

[Battlescars]

Hi DB & NTTF, Firstly, thanks for looking in and taking the time to update yourself on my thread.

 

few things I think you could answer regarding a DN and any further one's. In theory:

 

1. if someone can prove an account was sold to DCA, then terminated by OC, then that's a good defence is it? Or is it not to have been terminated at all a good defence?

 

2. if an NOA (from DCA) was dated, when would this have to be dated for it to be valid in 1. above

 

3. Surely they would struggle to issue a compliant DN on a) the back of unfair charges, so incorrect arrears always b) would have to supply a remedy date again and therefore supply credit facilities if it was rectified like the default never happened (s89) c) prove to be the assignor (unsure which one it is or whatever it is)

 

4. I guess this would put the OC in a difficult situation regarding the tax man as surely they would have claimed against losses for that year for written off etc...

Edited July 2, 2012 by Battlescars
forgot something

[DonkeyB]

Hi DB & NTTF, Firstly, thanks for looking in and taking the time to update yourself on my thread.

 

few things I think you could answer regarding a DN and any further one's. In theory:

 

1. if someone can prove an account was sold to DCA, then terminated by OC, then that's a good defence is it? Or is it not to have been terminated at all a good defence?

It’s no defence, because it cannot possibly happen. How can the OC terminate an account it does not own? If the DN was bad (and I need to check that), the account could not have been terminated. Statute interpretation confirmed by case law!

 

2. if an NOA (from DCA) was dated, when would this have to be dated for it to be valid in 1. above

Any date – once they own it. An NoA does not have to show a date AFAIK, but if it states a date of sale, it should be accurate. But if interest is applicable, they can only claim interest from the date you were informed of the sale. The date of the sale is a matter of fact, and is a different issue. For example, they can’t date it today and then back-claim the interest. NoA deficiencies are a very weak form of defence, anyway, except where they are deliberately misleading or are grossly inaccurate. Did you actually receive an NoA? If not, you must absolutely deny it.

 

3. Surely they would struggle to issue a compliant DN on a) the back of unfair charges, so incorrect arrears always b) would have to supply a remedy date again and therefore supply credit facilities if it was rectified like the default never happened (s89) c) prove to be the assignor (unsure which one it is or whatever it is)

Well, yes, but you would really be obliged to dispute the charges – anything else might be deemed avoiding the issues and would not look good in court. Equally, with account details to hand, they could calculate a proper default amount. They would supply credit facilities – but as per T&Cs they would probably reduce your credit limit to zero, so all you would be doing is paying it off. No wriggle room there I’m afraid.

4. I guess this would put the OC in a difficult situation regarding the tax man as surely they would have claimed against losses for that year for written off etc...

Not sure of your point here. Once they sell it, it’s gone, irrespective of DNs & NoAs – sold is sold.

 

Back to an earlier Q – what documentary evidence do you have for the actual date of sale being before the NoA remedy period ran out? It’s usable in a defence in as much as it buggers up their PoC completely (but they could try and replead).

 

Your strong defence points are a dodgy DN and therefore no enforcement possible, and simply answering the case put before you – if you have evidence of the date of sale, their PoC is purely and simply wrong by virtue of being impossible.

[Battlescars]

Back to an earlier Q – what documentary evidence do you have for the actual date of sale being before the NoA remedy period ran out? It’s usable in a defence in as much as it buggers up their PoC completely (but they could try and replead).

 

Your strong defence points are a dodgy DN and therefore no enforcement possible, and simply answering the case put before you – if you have evidence of the date of sale, their PoC is purely and simply wrong by virtue of being impossible.

 

Hi DB,

 

i assume you mean DN remedy date.

 

OC SAR about two month's after issue & I have kept pretty much all correspondence since difficulties started, (in chrono order too. Sad I know!) haven't posted yet. trying to get my head around some bits and understand them so it sticks.

[DonkeyB]

So the OC data confirmed the actual sale date? Very useful. Sadly not well particularised in your defence, but sort of rescue-able.

[DonkeyB]

And yes, my aging brain meant the DN, not the NoA. Apologies.

[Battlescars]

Again DB,

 

some guidance if I may. I have some q's

 

In your answers in post 45

 

1. You say you need to check something out, did you manage too? You also said Statute Interpretation confirmed by case law. can you please direct me to those points you mention.

 

2. what is AFAIK? Just to confirm the NOA has to be accurate and therefore state the date of sale, not say 1 day or 1 month later, but actual date of sale?

 

3. if an account wasn't classed as terminated (as you say in 1) due to it being a faulty DN, then what is the status of an account if sold.

 

4. can a new owner now breach any of the agreement because you have already defaulted or do they need to stick to the terms of agreement still?

 

5. just read your last post,(several docs in fact) I knew I needed help with my defence but was too late unfortunately as had to submit. You'll have to enlighten me on the "sort of rescueable" bit.

 

Thanks

BS