MKDP Court Claim BC debt - Help Please

[slick132]

Hi Dhuml,

 

Please confirm the date on the Directions Form N157, and the approx date you rec'd it.

 

[Dhuml]

Hi Slick,

 

I had my hearing at the small claims court.

 

MKDP had emailed their witness statement to the courts the night before the hearing and did not send me a copy.

 

As a result of this the Judge has adjourned the hearing as I also had failed to provide my witness statement within the deadlines.

 

MKDP's witness statment did not include the CCA or SAR.

 

However they included copies of credit card statements which showed my details.

 

The credit card was originally an egg card taken out in 2005/6 and reverted to a Barclay Card.

 

My main concern is that I do not want a judgment issued against me allowing them claim to my possessions.

 

I need help with my witness statement to make sure MKDP cant enforce a judgment.

 

Please help and advise what points my statement should contain..pre 2007 agreemnt..failing to provide CCA and SAR

[slick132]

Hi Dhuml,

 

Can you confirm the Order or Directions made by the court at the last hearing, setting out the requirements for the new hearing.

 

We need to know if either you and/or MKDP are allowed or expected to submit a further WS.

 

[Dhuml]

Hi Slick132,

 

I'am yet to receive notification in the post relating to the adjournment.

 

I was told by the judge as MKDP had only filed their WS the night before and failed to send me a copy,

 

he would give me an oppourtunity to submit my WS.

 

I was told I have 14days to submit my WS and I would recieve written notification in the post.

 

I have waited 10days and I have not recieved any written notification with regard to any further directions.

 

I feel, regardless that I have not recieved written confirmation about the 14days

that I should still adhere to the Judges verbal direction to submit my WS in the next three days.

 

I need help with my WS to make sure that MKDP claim is enforceable

and fails to achieve any judgement decision.

 

MKDP have not supplied me a CCA or CPR as requested.

 

I never recieved any notice of assignment.

 

As I understood the judges decision was just for me to submit my WS not for MKDP to submit further WS.

 

Hope that helps.

 

Thanks

Edited October 21, 2013 by Dhuml
spelling

[slick132]

Hi again,

 

Can you post up a copy of the WS that you submitted earlier.

 

Post it as a PDF after hiding any identifying data re name, a/c details, etc.

 

[Dhuml]

Hi Slick 132,

 

Sorry for any misunderstanding but I am yet to submit a WS as I missed the original deadline which MKDP also missed. MKDP sent their WS the night before the original hearing. This why the judge adjourned the hearing so that I could submit my WS. Here is my WS first attempt (std template from this forum). I want the WS to come across personal rather than a standard response but I dont want to trip my self up on any legal points. Please advise.

 

DEFENCE

1. I xxxxxxx of xxxxx, xxxx, xxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by MKDP.

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.

3. The claimants Particulars of Claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the civil procedure rules. (Even allowing for the constraints of the bulk issue system)

4. No documents supporting the claim in the particulars have been offered nor have any dates of agreement or assignment been stated which the defendant needs to establish what agreement it is that this action is based upon and so the claimant's claim appears without merit.

5. As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I am at a disadvantage to respond to this claim and to allow me to properly respond to the claim.

6. It is denied that I have an agreement with MKDP.

7. If, which is not admitted, such an agreement exists, the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

8. Without admission that any cause of action is shown by the Claimant, it is denied that I am indebted to the Claimant as alleged or at all.

9. On receipt of the claim form the defendant sent a CPR 31.14 request for a copy of the agreement and supporting documents which forms the basis of this claim. In particular the following were requested:

a. The Agreement

b. The Terms and Conditions of the Account

c. The Default Notice

d. The Assignment, and

e. The Termination Notice

10. To date no documents have been received from the claimant.

11. Consequently, i deny all allegations on the particulars of claim and put the claimant to strict proof thereof

AND the Defendant

Seeks an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

As the claimant has failed under Sections 77, 78 and 79 of the Consumer Credit Act 1974 to provide the requested documents within the 12 working days the debt becomes unenforceable.

Alternatively if the court decides not to strike out the Claimant’s case, it is requested that the court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

The Defendant respectfully asks the permission of the court to amend this defence if or when the Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

Statement of Truth

I believe that the facts stated in this defence are true.

Signed

[slick132]

Hi Dhulm,

 

The above appears to be an "embarassed defence" and this is no good for your WS.

 

Looking for an example for you now ..................

 

[slick132]

Hi Dhuml,

 

Although this is an old case, I believe the WS is suitable although you must adapt it carefully to reflect your own case - http://www.consumeractiongroup.co.uk/forum/show-post/post-492578.html

 

I suggest you number each paragraph for ease of reference.

 

If I get anything further of use, I'll link you to it.

 

[slick132]

Sorry, I should have mentioned that this was for a reclaim of current a/c charges, so you can use it as an example for you to use for layout and content TYPE but not necessarily all the actual content itself.

 

Still looking for a better example for you.

 

[citizenB]

Responding to S.O.S, but I see you have slick132 looking after you.

 

If I understand correctly you missed a deadline to submit your Witness statement, but then so did the other side - plus they emailed both you and the court the evening prior to the hearing !!

 

You haven't received a Notice of Assignment - or a copy of the agreement. Did you ever receive a Default Notice or "Notice of Sums of Arrears" ?

 

I think it might also be a good idea if you telephone the court in the Morning and advise that, at a hearing on DATE - the Judge said that he would be sending out further instructions for you. Have they sent them out please ?

[slick132]

If anyone has an example of a Witness Statement to help Dhuml here, please post a link to it asap.

 

One relevant to defending a claim for a credit card a/c debt.

 

Thanks

 

[AndyOrch]

Example Only

 

 

 

 

Claimant XXXXXXXXX

 

v Defendant xxxxxxxx

 

County Court xxxxxxxx

 

Claim Number xxxxxxxx

 

 

 

WITNESS STATEMENT

 

1. I, xxx, am the defendant and make the following statement in support of my defence to this claim.

 

2. I admit/deny having signed any agreement between xxxxxxxx (UK) Ltd for a credit card.

 

3. On xxx I issued a request to xxxx under CPR31.14 for information relating to the claim but have /not received a response.

 

In response the Claimant has disclosed:

 

(a)

(b)

©

(d)

 

The Agreement

 

4. The Claimant has supplied a copy of an Application Form.

 

5. Furthermore, the credit limits and interest rates for the 2 cards differ, as do other terms & conditions. Therefore, in order to ‘upgrade’ as the Claimant puts it, from one card to the other, it requires a new agreement to be issued by the creditor & signed by the applicant. The Claimant has not supplied an agreement issued by XXXXXXXXXXXX Ltd . Any alleged agreement between XXXXXXXXXXX Ltd & myself cannot therefore comply with the provisions of the Consumer Credit Act 1974 & by the court is prevented from enforcing this agreement by S127 of the same Act.

 

Default Notice

 

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

 

7. At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must serve 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 alleged 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 & the Claimant has provided no copy of such & no evidence of posting or other method of service.

 

At trial I will refer to the judgment of Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) to support this & if necessary, also cite the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

Notice of Assignment

 

8. The Claimant has not served or disclosed a copy of any Notice of Assignment issued by either the original creditor or any subsequent assignee.

 

9. Furthermore no Notice of Assignment which complies with S196 of the Law of Property Act 1925 was ever served by the Claimant & the Claimant has provided no evidence of posting or other method of service of such.

 

Calculation of Sum Claimed

 

10. On xxxx I sent a request to the Claimant’s solicitors, xxx, to supply statements of account for the period xxxx to xxxxx. To date I have received only partial information relating to this account & it is therefore impossible to prove that the sum claimed is accurate. However from the information supplied I believe that the sum claimed was at least partly comprised of unlawful charges. This could render not only the sum of this claim inaccurate but any Default Notice issued by XXXXXXX Ltd invalid, as the sums stated on both would have been calculated using a total that was inaccurate and not a truthful reflection of any indebtedness.

 

11. In view of the above the Court is invited to dismiss this claim.

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

Signed

 

Dated this day xxxxxx

 

Regards

 

Andy

[Dhuml]

Thanks slick132 and andyorch.

 

Can anyone tell me should the claimant have issued their own default notice or can they rely on a default notice issed by the previous DCA. The reason I ask they have included one in their WS pack which I have never seen before.

 

 

Thanks

[AndyOrch]

What name is on the DN ..who issued it?

[Dhuml]

It was issued by Mercers and was requesting amount due £353 (monthly payments missed I persume) the balance is shown as £5600.

 

Thanks

[AndyOrch]

Nothing wrong with that...they are BC in house collections

[citizenB]

When was the DN issued - did it allow the statutory time of 14 days (allowing for posting) to remedy the breach. If issued before 2007 then the statutory time period was only 7 days.

 

If issued after 2008 it needed to include the OFT fact sheet and also have a statement on the DN to say that the OFT sheet was included.

[Dhuml]

Hi CitizenB issued date 20th June 2011 and allowed till 7th July. Their WS does not include a copy of the termination notice. Could i use this as an argument that they have not complied with the neccessary laws?