Help! MKDP issued Court claim for Barclaycard debt***Claim Dismissed***

[RedPillGuy]

Cool, thanks Andy. Do I need to copy any of the documents mentioned in the WS with the bundle I send to the Court and MKDP - eg my defence, court orders, the reconstituted agreements etc?

 

Finally any comment before i hit print on the (revised) WS? :

 

1. On 11th May 2013 I received a claim from MKDP LLP, related to a Barclaycard account which was opened on 6th September 2006.

 

2. In response I issued a request under CPR 31.14 to obtain documents referred to in the particulars of claim (sent 13th May 2013, signed for 16th May 2013) – I specifically requested:

a. A true copy of the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 paragraph 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.

b. Terms and conditions on the account, both from inception and current

c. A true copy of the Notification of Assignment along with proof of serving as defined under the law of property act 1925.

d. A true copy of the default notice along with proof of serving as defined under the law of property act 1925.

e. A true copy of the termination notice along with proof of serving as defined under the law of property act 1925.

f. A true copy of any Letter before Action along with proof of serving as defined under the law of property act 1925.

g. Copies of all account statements from inception to determine amount claimed

 

3. I also spoke to the claimant’s Claim Handler and was told that they did not possess these documents and it could be more than 8 weeks to obtain them from Barclaycard. I did not feel confident that they were ever going to provide these documents, and I felt it was unfair to be issuing the claim without these. Accordingly, I made an application to the court on 29th May 2013 asking the court to order this disclosure. A hearing was set for 6th August 2013, but was delayed until 28th August 2013. No documentation was received prior to the hearing and MKDP did not attend, however the night before the hearing they emailed the court with documents attached:

a. A letter from Barclaycard dated 27 June 2013 to me (never received, and surprising to come from Barclaycard as they allegedly assigned the debt to MKDP on 21/11/12) This letter is a standard s78 response saying a reconstituted copy of the agreement "completes our obligations under Section 78 of the Act" and included a standard reconstituted agreement

b. A “reconstituted” default notice from Mercers which is not a true copy - ie above the address block is "%%MAIL_BARCODE" and the Balance and Amount due have strange "a" with a caret instead of pound symbols..

c. A copy of the Assignment notice dated 21 Nov 2012 (never received)

d. A copy of their letter in response to my CPR request stating it could take 6-8 weeks, but they will agree to a delay in submitting my defence for 14days after they comply

 

4. The response received by the court referred to in Para 3 was a reconstituted Agreement and reconstituted Default Notice. This did not provide me with an opportunity to take an opinion on the agreement. I was also therefore unable to know whether to plead the default notice was ineffective.

 

5. The email to the Court by MKDP of 27th August 2013 also stated “The Claimant will send the documents referred to in its statement of case and respectfully requests that the defendant be ordered to file and serve their defence within 14 days”. The Claimant sent no further original (or copy of original) documents despite undertaking to do so.

 

6. On 3 September 2013 the Court Ordered that the Defendant shall file and serve his defence no later than 7/10/13, which I duly filed, along with Directions Questionnaire.

 

7. I heard nothing for around 4 months, and started to chase the Court, but on 11th Feb 2104 the Court ordered:

a. Unless the Claimant files and serves a completed Directions Questionnaire by 4pm on 25th February 2014 the claim shall be struck out automatically without further order of the court.

b. The court has made this order on its own initiative pursuant to Rule 3.3 of the CPR. Any party affected by this order has a right to apply to set it aside, vary, or stay it, by application made not more than 7 days after this order was served on the party making the application.

 

8. I understand that MKDP submitted the Direction Questionnaire within the timeframe, but failed to pay the court fee. The Court issued a further order on 10th March 2014 that unless the Court fee was paid by 19 March 2014 the claim would be struck out. I understand that the Court Fee was paid on 19 March 2014.

 

9. The Court then set a hearing date for 21 July 2014, and ordered that the hearing fee be paid within 14 days. The Claimant did not meet this deadline, however I understand it has now done so.

 

10. MKDP sent me by registered post (delivered 25 Apil 2014) A letter enclosing a “copy of the default notice” and “reconstituted agreement relating to this matter”

 

11. The Court also ordered (1 July 2014) both parties to file and serve witness statements by 14 July.

 

12. In my defence I put the claimant to strict proof, and requested that the court orders full disclosure. Despite several requests, I have never received appropriate documentation from the Claimant that would allow me to full prepare a fuller defence.

 

13. With regards to the reliance on “reconstituted agreements”, I do not think that the document supplied can be relied upon by the Claimant. My CPR request has not been complied with, so as to allow me to prepare a full defence.

 

14. I argue that:

a. The Claimant has not proven an enforceable agreement. My memory of 2006 is sketchy, but I recall filling in a brief form sent to me by Barclaycard in the post with something like “you have been pre approved for a credit card”, and subsequently being sent a credit card stuck to an approval letter. I don’t ever recall signing a full application form with detailed terms and conditions.

b. The Claimant has not produced a signed agreement

c. The Claimant cannot produce an original agreement showing all Prescribed Terms.

d. I have never received a Notice of Assignment from Barclaycard to MKDP.

 

15. I have been frustrated by the Claimant approach to this litigation in particular:

a. Failure to supply documents which they intended to rely upon in court under my CPR request making it very difficult to prepare my defence

b. Failure following the application hearing in 5. above to provide the documents despite assuring the Court they would do so

c. Failure to submit their Directions Questionnaire for 4 months until order by the Court

d. Failure to pay the appropriate fee for the DQ until ordered by the Court

e. Failure to follow the Court direction that the hearing fee be paid within 14 days

f. Failure to follow Court Direction to provide document no less than 6 weeks before the hearing.

 

I believe that the facts stated in this witness statement are true

Edited July 11, 2014 by Andyorch
Red needs removing

[AndyOrch]

If you could remove the references marked red above.......yes anything you refer to or rely on within your defence or WS should be refered to as an an exhibit and marked " see exhibit a/1 ect "

[RedPillGuy]

Many thanks for this Andy.

 

My only thought is that I am basically relying on them not being able to produce the original, however didn't Carey v HSBC "make it clear that the creditor does not need the original agreement to produce a true copy, he can rely on records held in computers and other sources to produce a true copy of the agreement, the only caveat is that the copy must be honest and accurate."

[AndyOrch]

Many thanks for this Andy.

 

My only thought is that I am basically relying on them not being able to produce the original, however didn't Carey v HSBC "make it clear that the creditor does not need the original agreement to produce a true copy, he can rely on records held in computers and other sources to produce a true copy of the agreement, the only caveat is that the copy must be honest and accurate."

 

Only agreements post April 2007 and only in connection with section 77/78/79 requests .....not court claims for enforcement purposes.

[RedPillGuy]

Still more straw clutching....

On the reconstituted DN in relation to Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983:

The titles says "under section 87(i)" not "under section 87(1)

 

Also, the above regulation says:

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement--

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these

Regulations, they shall be afforded yet more prominence.

 

But, the recon DN does not make these mandatory passage prominent at all - ie the ""IF YOU DO NOT TAKE THE ACTION REQUIRED..", "IF THE ACTION REQUIRED BY THIS NOTICE...", and "IF YOU ARE NOT SURE WHAT TO DO..>"

 

Are these grounds to challenge the validity of the DN?

[RedPillGuy]

So MKDP have just emailed myself and the court with 2 attachments. The first is just another copy of the recon agreement and the reon default notice.

The second attachment is the Witness statement from the MKDP team leader. I have printed out and deleted my personal details. How can I upload to the forum to get comments/feedback?

 

Here, I think I have done it

[AndyOrch]

Have you drafted your WS and served same on them?

 

With regards to theirs you will note the avoidance of stating the date your agreement inception.....that's because they then go on to quote and rely on Carey V HSBC which is not applicable to pre April 2007 agreements.

 

That amongst other ominous implications forms the bases of their WS...which in effect is frivolous fanciful and hollow which you should be able to respond to point by point and refute.

 

Andy

[RedPillGuy]

Have you drafted your WS and served same on them?

 

With regards to theirs you will note the avoidance of stating the date your agreement inception.....that's because they then go on to quote and rely on Carey V HSBC which is not applicable to pre April 2007 agreements.

 

That amongst other ominous implications forms the bases of their WS...which in effect is frivolous fanciful and hollow which you should be able to respond to point by point and refute.

 

Andy

 

Yea sent recorded delivery Friday with Saturday delivery.

 

The recon agreement ahowa cca1974 so clearly pre 2006 agreement. No NOA in their evidence either

[tiggrae]

Have you drafted your WS and served same on them?

 

With regards to theirs you will note the avoidance of stating the date your agreement inception.....that's because they then go on to quote and rely on Carey V HSBC which is not applicable to pre April 2007 agreements.

 

That amongst other ominous implications forms the bases of their WS...which in effect is frivolous fanciful and hollow which you should be able to respond to point by point and refute.

 

Andy

Am I right in assuming Carey vs HSBC was only applicable where the Claimant was attempting to have the Credit Agreement rendered unenforceable ? If the Claimant is attempting to enforce an agreement (ie in this case mkdp) on an Agreement made pre 2006, then Section 127.3 of the CCA 1974 still applies despite this having been repealed by the 2006 CCA?

[AndyOrch]

The changes of 2006 were not retrospective with regards to enforcement.

[RedPillGuy]

Ok so Court Monday. So primarily a s127 defence with validity of the DN as backup? Anything else I should raise? Proof of postage on lopa? Any advise on asking costa as a lip? If I get a hanging judge can I ask to Appel based on S127?

[AndyOrch]

Ok so Court Monday. So primarily a s127 defence with validity of the DN as backup? Yes Anything else I should raise? Have a quick look at Notice of Sums in Arrears Section 11 CCA 2006 inserts a new section - 86D - that sets out the consequences for a creditor or owner if he fails to give a notice as required by sections 86B or 86C Proof of postage on lopa? No Any advise on asking costa as a lip? Always have your costs ready and ideally serve a copy on the claimant pre hearing If I get a hanging judge can I ask to Appel based on S127?

Thats at the DJ discretion

 

Best of luck

 

Regards

 

Andy

[RedPillGuy]

Thanks Andy. I'm a bit confused by the s86D reference - can you spell it out a bit more for me? Also, is there a guide to preparing LIP costs anywhere?

[AndyOrch]

http://www.legislation.gov.uk/ukpga/1974/39/section/86D

 

http://www.lawgazette.co.uk/law/benchmarks/costs-and-litigants-in-person/5038419.article

 

Once you have an understanding of what can/cant be claimed then produce a Bill of Costs

[RedPillGuy]

Are you saying that BC needed to provide a Notice of Sum in Arrears separate to the DN, and because MKDP have not provided a NOSIA in their bundle (3)The creditor or owner shall not be entitled to enforce the agreement during the period of non-compliance.?

 

that simple? - no document = no enforcement??

 

Oh, and on the DN, it does look like the relevant sections are actually in bold, albeit very faint on the copy provided, so that line of defence won't stick unless it is slely on the 87(i) vs 87(1), but that would probably get laughed at by the DJ I think. Also the NOA was in the bundle for the court but not in the copy they sent me, so that is gone as well.

[AndyOrch]

NOSIA is a far greater argument than claiming technicalities on the DN...providing the DJ is up to speed with the CCA 2006 amendments.

[RedPillGuy]

Yes agree the DN technicalities are bs. But regards to the NOSIA - that simple? - no document = no enforcement??

 

On LIP costs I get the £18 is easier to define - but what works regarding acceptable time spent in these cases?

[AndyOrch]

It varies on the complexity of the claim...but research...preparation...disbursements...travelling and time off work to attend hearings.

 

Yours so far would be minimal only having to submit a defence...submitting the DQ. Keep it realistic.

[RedPillGuy]

One interesting point is that in their WS regarding the (never seen before) NOA, they state:

 

Section 136 of the LPA 1925 requires that a debtor be "given" notice rather than "served" notice so the provisions of s196 of the LPA 1925 for service by registered post do not apply. The Notice of Assignment was not returned as undeliverable by the postal service

 

Should I be worried that they are reading this thread (post #59)?

 

s136 says:

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice

 

I see no definition in the LPA for "given" as opposed to "served" - any thoughts?

[AndyOrch]

Given ...served ...one and the same...dont waste too much time on LoP its not a defence winning argument.

[RedPillGuy]

yeah, just going line by line through their WS

[RedPillGuy]

Ok so court today. Case dismissed. The DJ did not seem to want to focus on s127 and seemed to accept MKDP argument that Carey v hsbc meant they did not need a signed credit agreement, which was frustrating.

 

They sent a rent a barrister but did not attend themselves, and had not given notice that would be the case which seemed to **** him off. He focused on the fact that they did not have a statement of accounts and that various correspondence had different claimed values.

 

Given this was dismissed, can they just get the statements from barclaycard and start again? If so, is there better documentation to show that Carey v hsbc should not apply to a CCA1974 agreement and that s127 applies?

 

Oh, and I forgot to ask for costs

[Old Cogger]

Oh, and I forgot to ask for costs

 

do not push it I would suggest, let it be.

[AndyOrch]

You dont seem to be too happy RPG considering the judge dismissed their claim...you have won.No costs for either party as it was dismissed.

 

Thread title amended to reflect the outcome.

 

Well done ...celebrate.

 

Regards

 

Andy

[tiggrae]

Ok so court today. Case dismissed. The DJ did not seem to want to focus on s127 and seemed to accept MKDP argument that Carey v hsbc meant they did not need a signed credit agreement, which was frustrating.

 

They sent a rent a barrister but did not attend themselves, and had not given notice that would be the case which seemed to **** him off. He focused on the fact that they did not have a statement of accounts and that various correspondence had different claimed values.

 

Given this was dismissed, can they just get the statements from barclaycard and start again? If so, is there better documentation to show that Carey v hsbc should not apply to a CCA1974 agreement and that s127 applies?

 

 

I would be interested to know if anyone has this information