3rd claim of 3 MKDP Credit Card***Claim Dismissed***

[AndyOrch]

Fully agree Oleg...far to rambling...short sweet and concise....less is more

[willintonboots]

Unfortunately I'm stuck in bed with only a mobile phone: well nigh impossible to go through your detailed w s point by point. But don't worry: you haven't been forgotten and there's still time.

 

For now, just my immediate nit-picks:

 

You've got the general idea but some is over-stated, eg

- how terrible M K are and out to get you [my words not yours!]

- what is required of a CCA request [a proper judge should know anyway, of course]

- similarly wrt assignments, plus I'm a bit puzzled as to what you meant regarding "legal assignment".

 

Repair your obvious error at no. 10/11, when your hand got caught in the meat mincer.

 

Run through spell checker when you do the final copy to try to avoid mistakes such as "arguement". Set it to UK to avoid transatlantic spellings such as "defense".

 

Your no. 19 : important to delete "any".

 

I'm not well enough to write more now other than to offer one general tip. Aim to reduce the length by at least 20% by removing repetitiveness [there's quite a lot], the points I've made above, etc etc.

 

If you know someone you particularly despise, give them a hard copy and yellow highlight, ask them to make a stab at it. Seeing it fresh , unlike you who is sick to the gills with it, they might be better placed to pull the weeds out.

 

Hello Oleg.

 

Thank you so much for your points, they are very helpful. Especially as you are poorly, it is more appreciated!

 

I am working on it now. I apologise for the poor read. I had lost the will the other day.

 

I am going to tweak and re post shortly. Don't worry if your unwell. Hopefully someone else will be about to respond.

 

Hope you feel better soon.

[willintonboots]

One quick question.

 

Am I allowed to mention what happened in mediation? The fact they alleged they had paperwork and would send it to me and never did?

[oleg]

Yes it's allowed, but only one sentence not a thesis. And stick to facts rather than emotions.

 

I've been rethinking what I said earlier about cutting at least 20%. I know this may sound harsh, but try to aim for at least 30%.

 

Sorry kid. Cruel to be kind and all that. The last thing we want is for judge to get so fed up that s/he turns against you.

 

Happy editing.

[willintonboots]

Thank's again Oleg.

 

I am taking on board your points and will act on them. I think I'm getting it.

 

I will try not to make a mess of it. The last thing I want is to annoy the judge!

[willintonboots]

Hello,

 

So here is my attempt at making that big mess into a bit more sense. I have tied to take into account all points made, if I have missed anything, please let me know.

 

Back ground of the claim,

 

1. The Clamant claims the sum £xxxxxx, which includes courts fees of £xxxxxx from the defendant under an alleged regulated agreement originally between, the defendant and HSBC.

 

2. The claimant alleges that the defendants account number was xxxxxxx and assigned to the claimant on the xxxxxx and the claimant claims the defendant was notified.

 

3. No documents supporting the claim in the particulars have been offered by the claimant 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.

 

4. It is alleged no payments have been made in accordance with the terms of the agreement. No agreement has been produced along with any evidence to suggest the amounts claimed.

 

3. The claimant had failed to produce any evidence that an agreement exists. It is therefore not accepted that the Defendant has an agreement with the Claimant. The Defendant has no knowledge of, or has in their possession any agreement pertaining to the account number given in the Particulars of Claim and so cannot admit or deny an agreement with HSBC.

 

5. I am a current customer of HSBC and have been banking with them since 2007 and I am still using the account I first opened with HSBC. The account number suggested by the claimant I do not recognise.

 

6. The claimant suggests the assignment date was xxxxxx, they entered the claim on xxxxxx (nearly three years since alleged assignment), and the defendant has had no communication from the claimant regarding this alleged debt until the claim on the xxxxxx.

 

7. The particulars are vague as there is no date of when alleged agreement was entered into or defaulted and terminated.

 

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

 

9. Notwithstanding the above, a request was made in writing (see Exhibit 01) on the xxxxxx via Royal mail signed for service (see Exhibit 02) under the Consumer Credit Act 1974, by way of a section 77/78 for a copy of the true agreement, and on payment of the statutory fee of £1.00; the Claimant is and remains in Default of said Section 77/78 request.

 

10. The Claimant has failed to comply with my request for a CCA request, which was received by them on xxxxxxx (See Exhibit 03). The Claimant used the £1:00 fee to pay for the CCA request and added it to the balance as a form of payment to the account disputed, which the defendant did not intend the £1:00 to be used for, which is clearly stated in my letter requesting the CCA.

 

11. A further request made via CPR 31.14, after the claim had been issued on the xxxxxx via Royal Mail signed for service (See Exhibit 04 and was received by the claimant on the xxxxxx (See Exhibit 05), requesting disclosure of documents on which the Claimant is basing their claim. The Claimant had responded on the xxxxxx (See Exhibit 06) and stated they are not in possession of any paperwork connected to this claim and that it will take up to 8 weeks to comply. The claimant has not complied with the CPR 31.14 and has not made further contact regarding the request since their response letter dated xxxxxx.

 

12. On the xxxxxx Both parties agreed to mediation. This could not go ahead due to the documents not being provided by the Claimant to the defendant. The Claimant said they would send out those documents. These have never been sent to the Defendant.

 

13. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

a) Show how the Defendant has entered into an agreement with the Claimant; and

b) Show how the Defendant has reached the amount claimed for; and

c) Evidence any nature of breach and provide proof of any Default Notice and Notices of Sums in Arrears; and

d) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

 

14. It is denied I have been served with a Default Notice pursuant to the consumer credit Act 1974. As the Assignee of this alleged debt the Claimant would not be aware whether one had been served or not.

 

15. It is denied that I was ever informed of assignment of this debt neither by the original creditor nor the assignee. For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136).

Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned.

 

a) The assignment must be absolute.

b) The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

c) The assignment must be in writing and signed under hand by the assignor.

d) Notice of the assignment must be received by the other party or parties for the assignment to take effect.

 

16. The Claimant has not complied, as far necessary, with any pre-action conduct practice direction. They have never contacted me with regards to this alleged debt nor have I ever heard of them up until receipt of this claim.

 

17. The conduct of the claimant has been obstructive and incorrect throughout the process of this claim and has not sought to actively resolve this disputed claim by failing to provide information and documents stated in the particulars, which could remedy a quick resolution.

 

18. The claimant has acted in an inappropriate manner by entering on my credit file the sums of money allegedly owed by myself including the court fees for this hearing, even though this claim has not been concluded. (see Exhibit 06)

 

19. The claimant sent out a statement in December stating I owe money including court fees for this claim even though the claim had not been concluded. (See Exhibit 07)

 

20. The Defendant respectfully requests that on the grounds of failure to comply with directions in the correct time limits, failure to supply evidence that the alleged sums are owed. Failure to comply with the CCA request under the Consumer credit Act 1974 and CPR 31.14 (Civil Procedure Rules) request that the case is dismissed / stuck out / or stayed.

[oleg]

That's much better Will, well done. I haven't been able to examine with a fine tooth comb but my two main quibbles are

 

- at times it reads more like a defence than a w.s. , though this is not a fatal flaw

 

- amend the stuff about legal assignment and instead say . . .

 

It is denied that I was informed by either the purported original creditor or the assignee of the assignment of this account pursuant to the Law of Property Act 1925 [s.136].

 

 

Ditch the rest of your no.15.

 

Maybe you can take a breather now and get ready for when M K perform their customary song and dance routine.

 

Well done for persevering.

[willintonboots]

That's much better Will, well done. I haven't been able to examine with a fine tooth comb but my two main quibbles are

 

- at times it reads more like a defence than a w.s. , though this is not a fatal flaw

 

- amend the stuff about legal assignment and instead say . . .

 

It is denied that I was informed by either the purported original creditor or the assignee of the assignment of this account pursuant to the Law of Property Act 1925 [s.136].

 

 

Ditch the rest of your no.15.

 

Maybe you can take a breather now and get ready for when M K perform their customary song and dance routine.

 

Well done for persevering.

 

Thanks very much Oleg.

 

I'm not sure what a witness statement should read like. Most of the ones I found on the forum were similar and I took that approach.

 

I will make those amendments you have suggested. I have a draft which makes me feel calmer. As you mentioned before I can edit should I need to.

[willintonboots]

Should I add in, if documents are produced by MKDP that I request Extra time or do I stick to trying to get it thrown out based on their failures?

[oleg]

No. Last minute pigeons from hankies are best batted off by "gracefully" requesting the judge deem them inadmissible. Witness statement is a factual history not a prediction of what may or may not come.

[willintonboots]

Ah I see. That makes sense. I'll try to make it sounds more like that.

 

Thanks Oleg. I appreciate your help.

[oleg]

oops I've just realised. Silly me. Shouldn't try to work when unwell! I thought you meant documents the Opposition reveal at the courthouse door. In fact you mean with their w s.

 

It depends on their nature and complexity. Take a pragmatic approach. If you could be expected to have foreseen the items in question or if adjustment of your w s would take 20 minutes, just amend as necessary. But if it's complex, you can request it to be not be accepted as you did not have reasonable time to respond.

[willintonboots]

Ok thank you very much Oleg.

 

I am going to get re working on it. Well not tonight, I'm going to take a break now haha. My brain is a bit frazzled!

 

But you have been greatly helpful, so thank you for that!

 

I'll post up a tweaked version again soon.

[AndyOrch]

I personally would lose 13 & 15 reads like a defence...which is probably already in your defence.

[oleg]

This is what I was ever so tactfully trying to hint at but was afraid I'd already badgered him almost to despair. Anyway thx for backing up my stance.

 

Will yes: I appreciate that many WSs you've read do look that way - and my main gripe with many of them is that they are indeed too "defensical".

 

Just think - you'll soon be an expert on the subject after all this hard graft.

[willintonboots]

I personally would lose 13 & 15 reads like a defence...which is probably already in your defence.

 

Thank you Andy! I will be making those amendments today.

Still have had absolutely nothing from them.

[willintonboots]

Today was the last day I had to submit my witness statements.

 

I had delivered them.

 

I must admit, MKDP are a sly bunch. They're office is names the Conpello group and they act quite suspicious!

 

I made them sign for the envelopes.

 

Anyway, I've had nothing from them at all, but I had to submit today to comply with the directions.

[oleg]

Glad you've at last submitted - and 0 from them, more grist to your elbow.

 

Yes they're part of Compello Group. You've obviously not been googling. Don't forget the rule of war: Know Thine Enemy.

 

Not surprised they were suspicious. They don't have many victims turn up in person. Mind You, there is another local being put through the process right now.

 

Let's keep fingers crossed for you.

[willintonboots]

Thanks Oleg.

 

I had googled them. I knew they used various names. But hiding under compello group like they're a recruitment company or something.

Outside this building you would never know what they were, hidden very well. I wasn't allowed inside the door either, which made me laugh.

[AndyOrch]

Smoke and mirrors:lol:

[willintonboots]

So Saturday morning I recieved to special Deliveries from MKDP.

 

I need to go through it properly. There is a signed agreement- it's pre April 2007. So what details should it have to be lawful?

 

There is no statements for the credit card.

 

A generic copy of a default notice with no detail relating to me.

A typed letter of apparent notice of assignment from HSBC. Which looks like I could have typed it as there is no letter head or anything to say it's hsbc's

 

Obviously this is out of the directions timeframe.

 

I've submitted my Witness Statement. Not sure what I am allowed to do now?

 

I will need to go through this all with a fine tooth comb tomorrow.

[willintonboots]

So I have had a look in the content a little more.

 

In their witness statement they refer to this as a First Direct Credit card, even though the particulars state HSBC. It wasn't and I have never had a credit card with first direct with this amount of money. First direct do not recognise the card number.

 

There are no statements so no idea of last payments, but they wouldn't be able to produce statements from First Direct because this account did not exist with them.

 

There is a HSBC credit agreement - I need to ask again, what should a pre April 2007 legal credit agreement look like?

 

There is a notice of assignment that is generic that looks like it has been typed and has no letter head - anyone could have typed it.

 

There is a default notice letter that is a general one - with no details relevant to me.

 

as it stands my thoughts are:

 

-MKDP failed within directions time limits

- MKDP failed several times to send me information to allow myself the respecable amount of time to fully defened myself and waited till the last minute which meant I would struggle to defend myself without a decent amount of time.

- Failed to provide statements showing how the amount is owed

-failed to provide evidence of notice of assignment relevant to this claim

-failed to provide evidence of default

- First Direct have no information relating to the account number suggested by the claimant which means i am unable to provide documentation to evidence this

- First direct suggested that had this account be theirs that the reason it is not showing on their system could mean it is over a six year period, at which they no longer require to rain the account information. This could indicate why MKDP tried to accept my CCA payment of £1 as a payment to restart SB?

 

Am I able to turn up to court with an amended defence - or updated one?

Court date is only days away now.....

[AndyOrch]

You can submit a supplemental witness statement in response to their disclosures....3 days prior to hearing...it is important to serve a copy on the claimant.

[willintonboots]

Thank you Andy,

 

Could you tell me what would indicate a enforceable credit agreement? Just so I am clear with my points. Any help I can add in would be helpful.

[AndyOrch]

8.2 What if prescribed terms are missing or incorrect? (Pre 2006 CCA2006)

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

Where the dealer is the supplier and the creditor is the one providing the finance.

The money can only be used for the purpose it is given.

There is no interest on the purchase (the cash price is the same as the total price)

And there is no advance payment

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and 4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Amendments although the form in which they appear on the agreement was. Subsection 127(3) was repealed on the 6th of April 2007 so that unenforceable due to 127(3) will only apply to agreements executed before that date.