Claim Form DLC/Hillies old-MBNA credit card *** Settled by Tomlin Order***

[Alloyz1]

Ok thanks

 

I will have a look around for some examples to give me some ideas.

 

A

[AndyOrch]

Here is an example...note that this is in objection to Summary Judgment but it will give you an idea of form/ layout and content/style : -

 

 

 

Witness Statement

 

 

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Claimant terminated the contract.

 

3 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

4 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

5 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry XXXXXXXXX NOD

 

6 I understand the claimant claims that NOD stands for Notice of Default.

 

7 The claimant has already admitted in a letter dated xxxxxxx that they are unable to produce a copy of the default notice.

 

8 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

9 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

10 Moreover, The claimant claims the default notice was sent on the XXXXXXXX and that the default notice if it could be seen by the court would show it had allowed XX days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed XX days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the XXXXXX and gave XX days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a letter before action on the 14th April 2008 demanding payment, being just XX days after the claimant claims the default notice was sent.

 

11 The delivery of the letter before action is good evidence that on or before XX XXXX, the Claimant terminated the agreement.

 

12 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on XXXXXXX the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on XXXXXXX and which gave to me XX days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

13 without prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the original claim is incorrect and They therefore request the claim value to be amended to £XX XXX XX. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations.

 

14 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

15 The claimant also claims £XX XX in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

17 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed .

 

Date: xx xxxxx xxxx

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Signature

[Alloyz1]

Brilliant thanks Andy

[Alloyz1]

Please could you offer some advice/ comment on the WS below- Many thanks in advance:

 

1. I, NAME of ADDRESS am the defendant in this action and make the following statement as my defence to the claim made by Hillesden Securities Ltd

 

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.

 

Background to the Claim

 

In Sept 2009 I made a request to review a copy of the executed Agreement which was between the original creditor, MBNA and me. MBNA duly forwarded my original application (Agreement) and Terms and Conditions.

 

Over a 5 month period I corresponded with MBNA regarding the validity of the Agreement and accompanying terms and conditions. On 12th Feb 2010 I was served with a Default Notice, dated 8th Feb 2010 from MBNA; and on 19th Feb 2010 MBNA sold my account to DLC, trading as Hillesden Securities Ltd, the Claimant.

 

I continued to correspond with the new owner via their associate business Hillesden Securities Ltd; to attempt to resolve the main area of my concern which was to establish the Agreement and accompanying documents were compliant with the relevant regulations.

 

3. I admit that a Default Notice was served by MBNA

 

4. I submit that the Default Notice is invalid and is not pursuant to The Consumer Credit Act 1974.

 

5. I admit entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with MBNA.

 

6. I submit that the Agreement is invalid and is not pursuant to the The Consumer Credit Act 1974

 

Default Notice

 

7. It is admitted that a Default Notice was received from the original creditor, MBNA. I put the Claimant to strict proof that said document in the prescribed format. A default notice is a required by s87(1) of the Act before a creditor can become entitled to take any action in respect of a regulated credit Agreement.

 

8. Notwithstanding this point, 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 and allow a remedy period. 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). By s88 (1)© of the Act, the date before which any breach can be remedied or compensation paid, must be stated in the Default Notice.

 

9. By s88 (2) of the Act, as amended by s14(1) of the Consumer Credit Act 2006 as from 1 October 2006, the specified date must not be less than 14 days after the date of service of the default notice. The 14 day period was also required by paragraph 3© of Schedule 2 of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

 

10. By case law, the 14 days means 14 ‘clear days’, excluding the day on which the notice was served and the day on which the Claimant proposed to take the steps specified in the notice.

 

11. It is submitted that a document [MBNA1] entitled ‘Default Notice’ was received by me on 12th Feb 2010, which was sent second class dated 8th Feb 2010. I refer to The Interpretation Act 1978 s2.

 

12. The date given in exhibit MBNA1 by which the default could be remedied was before 26th Feb 2010 which is less than the 14 clear days required.

 

13. Aside from the allowable time to remedy the breach being insufficient to render the Default Notice valid, the account was sold by MBNA to DLC inside the allowable remedy date (I was notified of the sale to Hillesden on the 19th February 2010). This is contrary to the Consumer Credit Act 1974 s87 (1) (a).

 

14. The 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 an 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 Wollich Building Society [1996] 4 ALL ER 119.

 

15. For a creditor to be entitled to terminate a regulated Credit Agreement where there is a breach and demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a valid Default Notice under s87(1) of the Consumer Credit Act 1974.

 

16. The Act also sets out via s88(1) that the default notice must be in the prescribed form, as below

s88: Contents and effects of Default Notice

(1)The default Notice Must be in the prescribed form

17. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

18. This is at all times an Agreement regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the customer. s98 makes that clear. The creditor must follow the steps outlined in s87 and s88 if they are to lawfully Default and terminate, and enjoy the benefits of s87.

 

19. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective Default Notice in prescribed form post-termination of the Agreement. Any such second Default Notice will necessarily state a date by when I would be required to comply after which in default the Agreement would terminate. The second Default Notice would therefore contain the inaccurate assumption that the Agreement endured when that cannot be the case, as it was terminated on the date outlined within the first Default Notice (25th Feb 2010). Terminating an Agreement on the back of a defective Default Notice, simply confirms the that termination of the Agreement by the original creditor was carried out in circumstances which then prohibited them, or anyone else, from enjoying the benefits of s87, namely the opportunity to seek early payment of a sum that was, prior to termination only payable in the future.

Agreement

20. The Claimant has confirmed the Agreement [AGREEMENT1] and the Terms and Conditions [T&C1] were in force at the time my application was signed in their letter dated 26th Feb 2013 [HILL1] which was after this claim was made.

 

21. The claimant is put to strict proof the Terms and Conditions, established and confirmed as the Terms and Conditions in force at the time of signing my Agreement are pursuant to The Consumer Credit Act 1974.

 

22. Section 61 of the Consumer Credit Act 1974 lays down certain conditions which must be complied with if such Agreement is to be enforced by the court.

 

23. Firstly, the Agreement must be signed by both the creditor and the debtor. Secondly, the Agreement must be legible. Thirdly, the Agreement must be contain certain prescribed terms under regulations made by the Secretary of State under s60(1) CCA 1974. The regulations referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553

 

24. It is submitted that the credit Agreement supplied in not pursuant to The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Agreement and the Terms and Conditions contain conflicting information and do not contain all of the prescribed terms under s60(1) of the CCA1974.

 

25. I wish to refer to AGREEMENT1 and T&C1 to illustrate the depth of this non-compliance, which is fatal to the Claimants claim.

 

26. The Terms and Conditions in force at the time the application was signed are set out using a number and letter system, for example 1, 1a, 1b, 1c, 2, 2a, 2b. However the Financial & Related Conditions on the reverse of the application asks the applicant to refer to conditions with a decimal system, for example 1.11, 1.8, 2.1.

 

27. On the Agreement supplied, under Data Protection, it asks the applicant to read condition 11, in the Terms and Conditions, on how they will process my data; however condition 11 on the Terms and Conditions supplied is in relation to Altering the Agreement; and Data Protection is covered on the 4th page of the Terms and Conditions which is without any reference.

 

28. On the Agreement supplied it refers to condition 14 in the Terms and Conditions, in relation repayments and payment holiday’s, however condition 14 on the Terms and Conditions supplied is the definitions section; and payment holidays are covered in condition 8a.

 

29. On the reverse of the Agreement, within the Financial & Related Conditions, it asks the applicant to refer to condition 1.11, 1.8, 2.1, 2.4, 3.5, 3.6, 13.1 within the separate ‘MBNA Credit Card Terms and Conditions’, however these conditions are not present in the Terms and Conditions supplied and confirmed as in force at the time of signing the application; therefore the applicant was unable to refer to them in any instance.

 

30. On the reverse of the Agreement, within Financial & Related Conditions, it states “set out in paragraphs 1-15 are “some” of the provisions contained in Conditions 1 and 2 of the “MBNA Credit Card Terms and Conditions”. The Terms and Conditions supplied have not been given the title “MBNA Credit Card Terms and Conditions”. However, even if the applicant would have known these Terms and Conditions were the one the applicant is being asked to refer to, there is the omission of condition 1.11, 1.8, 2.1 and 2.4, therefore the applicant was unable to refer to them in any instance.

 

31. The Terms and Conditions supplied by Hillesden do not contain conditions 1.11, 1.8, 2.1, 2.4, 3.5, 3.6, 13.1 which the applicant is asked to refer to on the application within the Financial & Related Conditions. These conditions are stated, within the Financial & Related Conditions on the Agreement, as part of either ‘interest’ or ‘repayment’ conditions which are prescribed terms.

 

32. On the reverse of the Agreement within the Financial & Regulated Conditions section 4(b), the minimum repayment is stated as ‘£5, or the account balance as shown on the statement, if less than £5’. On the Terms and Conditions supplied by Hillesden, the minimum repayment is stated as ‘If the balance shown on your statement is less than £25, your minimum payment will be the total amount of the statement balance’.

 

33. The Terms and Conditions provided at the time of signing the Agreement were therefore not only incomplete in relation to general terms and prescribed terms; but they were also conflicting in respect of prescribed terms; therefore the applicant was either unable to refer to general terms as they were incomplete; or the information within the Agreement and Terms and Conditions was conflicting and further prescribed terms were incomplete.

 

34. From the Lords of Appeal in Ordinary (House of Lords). Your attention is 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, the Agreement cannot be enforced.

 

35. The claimant is put to strict proof the Agreement includes the required terms and complies with the Consumer Credit Act 1974 s60 and s61, and is not subject to s127(3) of said act; and is enforceable.

 

36. A valid credit Agreement must contain certain terms within the signature document The Consumer Credit Act 1974 s.60(1)(2).

 

37. These core terms are the credit limit, repayment terms and the rate of interest The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553 (Column 2 schedule 6).

 

38. Prescribed terms must be within the signature document The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553 (6 Signing of Agreement).

 

39. The Agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor The Consumer Credit Act 1974 s.61(1)(a).

 

40. The court shall not make an enforcement order under s65(1) if s61(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) The Consumer Credit Act 1974 s127(3)

 

41. Lord Nicholls of Birkenhead in the House of Lords Wilson v First County Trust Ltd [2003] All ER (D) 187 (Jul) paragraph 29: “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, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

42. In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said, at page 1131: “The law states that without a prescribed Agreement the courts may not enforce under s127(3) and Parliament intended that if a consumer credit Agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

43. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

44. This is my statement of Truth

 

45. Dated- XXXX

 

46. Signed- XXXX

Edited May 17, 2013 by Alloyz1

[Alloyz1]

Hi

 

After Hillesden offered a settlement proposal and I offered a proposal as well, they have basically said 'agree to ours or we will proceed with the claim'.

 

Any advice on the above WS would be very much appreciated.

 

Thanks

 

A

[AndyOrch]

Normally a WS is drafted once the claimant has responded to the defence and or on exchange of WS,s as a response...until you get a response or any inclination has to which way they will argue or proceed I really cant see why you would pre prepare a WS?

 

Andy

[Alloyz1]

I just want to be prepared, I am sure others may be able to put a WS together quickly, but I have struggled a bit and it was a bit daunting so thought I would get it in order now.

[AndyOrch]

And then change it all once you find out the extent of their argument...their tactics and possible agenda and itinerary ? Remember how we draft a defence Alloyz same tact on a Witness Statement ...respond to what they state not what you think they may state.

[Alloyz1]

Doh.... God this is hard!! ha

 

Is a defence witness statement a reply to a claimant WS?

[AndyOrch]

Yes and some more...Witness Statements in the normal process of litigation (simultaneous exchange) are to support and expand on your defence and counter argue if you have the benefit of receiving theirs before you draft yours.

WS,s in response to application ( Summary Judgments) are in opposition to the application and convince the court the claim proceeds....so may uses and different ways to draft them.

[Alloyz1]

Okay thanks Andy

 

I feel better I have something down and I can at least wait now without feeling like I should be doing something as I should be able to use some of it (i hope).

 

Having not done one before, I wanted to make sure the layount, format was as expected.

 

Thanks again

 

A

[AndyOrch]

Sure I understand..Im not saying discard it but keep in abeyance until you are aware of the full claim.

[Alloyz1]

Okay, will do.

 

I made a counter proposal, after their proposal was just the full amount paid over time. Today they said mine was 'unrealistic'!

 

They then said they would instruct their sols to proceed.

 

I will sit tight now and see how it goes and adjust my WS to suit once they carry on.

 

One question, if they go for judgement due to a defence without merit, I presume I am notified and there is a procedure to object to such a motion?

 

Thanks again

 

A

[AndyOrch]

All applications for Summary Judgment are served on the defendant with the hearing date and procedure for you to submit a WS in objection.

[Alloyz1]

All applications for Summary Judgment are served on the defendant with the hearing date and procedure for you to submit a WS in objection.

 

Brill, cheers Andy and thanks for the help

[Alloyz1]

Hi

 

Recieved this email today:

 

 

"Thank you for your email and I apologise for the slight delay in responding.

 

I am unsure as to why you state that the documentation provided is not pursuant to the relevant regulations which govern them.

 

Your Defence revolved around the fact that you accepted that you took out a credit card agreement and only raised issue with the Notice of Default and the Claimant’s legal right to issue a Claim.

 

We are of the opinion that the documentation sent to you substantiates the Claim and our Barrister will put our case to the District Judge quite strongly along these lines.

 

The proposals for settlement outlined in my email dated 2 May were fair and reasonable in the circumstances and should you wish to reconsider, I have outlined them below

 

1. A one off settlement of £XXXX, to be paid by the end of May.

 

2. A Tomlin Order for the full outstanding balance to be paid by monthly instalments of £XXX.00 (over a period of approximately 4 years)

 

3. A Voluntary Restriction to be placed against your beneficial interest in the property, to avoid a County Court Judgment, again for the full outstanding balance.

 

If agreement cannot be reached, I will instruct our Solicitors to continue with the Claim."

 

 

My defense addressed the DN and the Agreement, which are unenforceable. So the outcome I am expecting no settlement to reached.

[citizenB]

What are the problems with the agreement again ?

[Alloyz1]

Hi CB, I have done a draft WS a few posts up which probably explain it better than me rambling on in a post.

 

I knew that draft would come in handy!

[Alloyz1]

Quick update:

 

Hillesden did not accept my offer, nor did I theirs.

 

They have stated they will instruct solicitors to coninue with the claim.

 

So guess its sit tight and wait to see what drops through the door.

[BT2505]

Hi Alloyz, I have a case almost identical to this (quell suprise) although I am at the defence stage with mine - will keep an eye out to see how you get on.

[Alloyz1]

No problem.

 

I generally post up my issues and the advice has just been brilliant.

 

But have read a lot of other threads to learn as much as possible. I try to post up my ideas and watch them shot down in flames!! But at least I try as opposed to expect others to do it for me!

 

There is plenty who will help but make sure you try and have a go first, it helps you really get to grips with things too, and improve your understanding.

 

Welcome on board

[BT2505]

Thanks for the welcome, I have been a member since 09 and in the early days the guys really helped.

 

Like you I have done a lot of the work myself gleaning info from the various posts and then asked for clarification - I guess the guys on here appreciate people who try and it's easier to pare down something that has been put together rather starting from scratch.

 

Your story has given me a lot of confidence and I look forward to your success.

 

Cheers

[Guest]

Quick update:

 

Hillesden did not accept my offer, nor did I theirs.

 

They have stated they will instruct solicitors to coninue with the claim.

 

So guess its sit tight and wait to see what drops through the door.

 

wasn't it stayed? so, thats how it stays (excuse the pun ) unless either party applies to lift the stay. or was it stayed for a specific period re mediation, thereafter to continue if no settlement?

[Alloyz1]

It went into 'stay' after the claimant did not proceed after my defence was submitted to their POC.

 

We did a bit of negotiating but the gap between our respective positions was to wide to reach settlement.

 

ps... shocking pun

[Guest]

ok, they have stated that they 'will' instruct their sols to continue (bit late, why didn't they just 'continue' within the normal timeframe?). so, their sols would now have to make an application at cost to lift the stay if they want to 'continue'. and, you will get notice of any application, with opp to object or counter apply?

yes, 'sit tight', and stay (excuse the pun ) as things are and wait. unless you want to make any applications yourself?

Edited July 12, 2013 by Ford