MCE Claimform - Old MBNA Card 'debt'***Claim Discontinued***

[AndyOrch]

Applies to both of you...standard disclosure and a witness statement to be served on each other and the court 21 days before the hearing...no onus on them yet as they have 21 days to comply.

[pbaron]

Applies to both of you...standard disclosure and a witness statement to be served on each other and the court 21 days before the hearing...no onus on them yet as they have 21 days to comply.

 

Ok thanks very much for your help

 

I will crack on with the witness statement and if its ok can i post it up here for a check please ?

 

Cheers

[AndyOrch]

No problem....

[pbaron]

Morning

 

Ive drafted my witness statement and have just removed the dates can you have a look and give me any pointers please. Then i can get it sent off asap

 

 

IN THE [NAME] COUNTY COURT Claim Number : [REF]

 

Parties

[NAME] – Defendant

MCE Portfolio Ltd – Claimant

 

WITNESS STATEMENT OF NAME

 

1) I [NAME] of [ADDRESS] am the defendant in this claim. The facts in this statement come from my personal knowledge.

 

2) The claimants Solicitors [NAME] have not complied with the CPR 18 request letter issued on the [DATE].

The letter was signed for by [sOLICITORS NAME] on the [DATE] and a letter was received on the [DATE] confirming acknowledgement of my letter and that documents have been requested and will be issued on receipt.

To date no documentation has been received.

See attached information labelled “Appendix 1 CPR18 Request”.

• Item 1 Letter

• Item 2 Proof of postage and delivery

• Item 3 Acknowledgement of letter

 

 

3) The claimants Solicitors [NAME] have not complied with the CPR 31.4 request letter issued on the [DATE].

The letter was signed for by [sOLICITORS NAME] on the [DATE] and a letter was received on the [DATE] confirming acknowledgement of my letter and that documents have been requested and will be issued on receipt.

To date no documentation has been received.

See attached information labelled “Appendix 2 CPR31.14 Request”

• Item 1 Letter

• Item 2 Proof of postage and delivery

• Item 3 Acknowledgement of letter

 

4) The claimant MCE portfolio and its representative Cabot Financial also known as Marlin Financial Services have not complied with the CCA requests issued on the [DATE] which where both signed for on the [DATE].

 

A letter confirming that Cabot Financial (Marlin) do not hold the information on file and that the Agreement has been requested and will be forwarded on receipt was received dated the [DATE].

 

To date no documentation has been received.

 

See attached information labelled Appendix 3 CCA Requests

• Item 1a Letter to Claimant,

• Item 2a Proof of postage and delivery

• Item 3a Proof of Postal Order for CCA Request

• Item 4a Acknowledgement Letter from claimants Solicitors

 

• Item 1b Letter to Claimant,

• Item 2b Proof of postage and delivery

• Item 3b Proof of Postal Order for CCA Request

• Item 4b Acknowledgement Letter

 

 

5) The claimant purchased the alleged debt from Britannica Recoveries S.A.R.L who could not, and did not prove they had a legal right to recover the alleged debt and ignored the CCA requests issued to them.

 

See attached information labelled Appendix 4 Expanded Information which shows the history of correspondence between parties.

 

I received a letter dated the [DATE] from Marlin Financial Services Ltd who are part of the Cabot Financial Group (See Appendix 4 Items 1 and 2) naming them as the company that has been appointed by the claimant (MCE Portfolio Ltd) to recover the alleged debt.

The letter states that MCE Portfolio Ltd have purchased the alleged debt from Britannica Recoveries S.A.R.L. Britannica Recoveries S.A.R.L and its representatives could not, and did not prove they had a legal right to recover the alleged debt before selling the alleged debt onto the claimant and did not reply to CCA requests issued with the history of correspondence between parties as below.

 

a) Britannica Recoveries S.A.R.L due to being based in Luxembourg instructed Arden Credit Management, also known as Moorgate Loan Servicing, to recover the alleged debt. (See Appendix 4 Items 3 and 4)

 

b) I received a letter from Arden Credit Management/Moorgate dated the [DATE] who act for Britannica Recoveries S.A.R.L stating they have instructed Mackenzie Hall Ltd to recover the alleged debt (See Appendix 4 Item 5). I received a letter dated the [DATE] from Mackenzie Hall requesting payment (See Appendix 4 Item 6)

 

On the [DATE] I sent a CCA request (See Appendix 4 Item 7) to Moorgate asking their client to provide a copy of the executed credit agreement which was signed for on the [DATE]. No response was received

 

c) I received a letter dated the [DATE] again from Arden Credit Management (See Appendix 4 Item 8) stating they have now instructed Robinson Way Ltd to recover the alleged debt (See Appendix 4 Item 9)

 

On the [DATE] I sent a CCA request (See Appendix 4 Item 10) to Moorgate asking their client to provide a copy of the executed credit agreement which was signed for on the [DATE]. No response was received apart from a letter from Robinson Way returning the £1.00 postal order (See Appendix 4 Item 11).

 

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

 

 

Signed :

Date : 18/11/2015

[AndyOrch]

Again CPR 18 is not applicable to Small Claims Track...so that's an irrelevant point.

 

To be brutally honest pbaron...the above is not very good.....its all about CPR and CCA not being complied with and nothing really if anything about the alleged debt.

 

I assume you have had your Notice of Allocation and Directions...hence you drafting the above...has the court not ordered the claimant to disclose and bring the original documents to trial?

 

Regards

 

Andy

[pbaron]

Afternoon Andy

 

Thanks would rather have honesty as im out of my depth here..

 

Will remove the CPR18 request sections and evidence. Re the disclosure of documents/documents theres only written what ive put in the post higher up the page you replied to..

 

Can i not issue a N244 due to non compliance with the CPR31.4 request ?

 

Cheers

 

Paul

[AndyOrch]

Judging from your posts and rational I don't think you have quite grasped the process.

 

The Claimant does not have to disclose anything...not one shred of evidence...cant be ordered by a court or judge until the relevant point within the procedure.

 

That point is now...the Directions.....all parties must disclose all documents relied upon by (whatever) before the trial.

 

So any CPR requests you have made previously are purely cosmetic for the basis of your defence to refer to.....you have made a civil request....they have declined it...nothing anyone can do...you cant make application to make them comply...there is no law that they must comply.

 

 

The process.....

 

1.Claim issued......2.defence submitted....3.claim allocated....4.directions provided......5.Disclosure of documents...6.exchange of witness statements.......7.the Trial.

 

So you are at 6 drafting your witness statement in support of your defence as to why you declare that the alleged debt is disputed or not owed or not enforceable....etc.

 

Yes a small paragraph re CPR 31.14 made... claimant has failed to comply.Yes a small paragraph re CCA request... claimant has failed so the debt is unenforceable until such time they do comply.

 

But you can not base a defence or witness statement on none compliance of a CPR 31.14 alone.

 

Regards

 

Andy

[pbaron]

Hi

 

Thanks for outlining the process, as mentioned before i know i'm out of my depth.

 

So should I review my witness statement inline with my defence/and their particulars of claim (That i do not recall the account number they mention, i havent been in receipt of a valid default notice etc) . Im just searching now for posts that can help me write it.

 

 

and without wanting to "annoy" anyone with my lack of knowledge i think my best bet is to try and see the Citizens Advice/solicitor.

[AndyOrch]

pbaron...you are not annoying anyone with your lack of knowledge...that is why this Forum exists...to advise to explain the procedure.I really wouldn't attempt to bother the CB with any of the above as they will simply tell you to admit it and accept the judgment.

 

Its simply a case of when posters ask can I strike out they ignored my CPR 31.14...we know that you are out of your depth...and yet you need not be its quite a simple process...follow it and more often than not the claimants refuse to comply or slip up with the process and the claim is discontinued..

 

If for arguments sake they do not disclose or send you their WS 21 days pre hearing then you can make application and ask the court to impose sanctions/strike out...because they have then failed to follow the courts directions...as the claimants can with you if you fail to disclose or submit a witness statement.

 

Expand on your defence ...in your own words.

 

I will try to find a further example so you can get an idea of form and content.

 

Regards

 

Andy

[pbaron]

Thank you its appreciated

[AndyOrch]

Claimant v Defendant/Case Number xxxxxxxx

 

In the XXXXXXX County Court

 

 

Witness Statement of XXXXXXXXXXXXX

 

 

1 This statement is made in support of my defence dated xxxxxx.

 

2 I do not deny that a contract once existed between myself 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.

 

1 To this date the Claimants have not provided me with any documentation to prove their case against me. 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.

 

Date: xx XXXXXX 2015

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statementare true

 

 

Signature

[pbaron]

OK hopefully i may of attempted this slightly better after looking at your post and others. I've written the below defence for your review..Be nice

 

Dont know if its correct but ive noticed something from the court documents which may help my case too if you can see point 14.

 

 

 

 

 

IN THE ?? COUNTY COURT Claim Number : ??

Parties

?? – Defendant

?? – Claimant

 

WITNESS STATEMENT OF ??

 

1) I ?? of ?? am the defendant in this claim. The facts in this statement are in support of my defence issued on the [Date].

 

2) I received a County Court Claim form dated the [Date].on the [Date].from MCE Portfolio Ltd. This was for the sum of £?? plus costs of £?? totalling £?? for a debt with MBNA.

 

3) I completed the Acknowledgement of Service with the intention of defending the claim. This was sent on the [Date].

 

 

4) I do not deny that i once held an account with MBNA services however i do not recall the account number that the claimant refers to within their particulars of claim.

 

5) As such i have requested a copy of the alleged agreement pertaining to this claim under section s.78 (1) Consumer Credit Act 1974.

 

6) CCA Request

i) On the [Date].i issued a Data Subject Access Request complete with the necessary fee to the Claimant (See Exhibit A) which was signed for on the [Date]. (See Exhibit B)

 

ii) On the [Date].i issued a Data Subject Access Request complete with the necessary fee to the Claimants appointed agents Cabot Financial (Marlin) (See Exhibit C) which was signed for on the [Date]. (See Exhibit D)

 

I received a letter dated [Date]. from Cabot Financial (Marlin) stating that they do not hold all the information on file and they have requested a copy of the Agreement along with a Statement Of Account from the original creditor and that upon receipt the documents will be forwarded onto me (See Exhibit E) At the time of writing i have received no documents.

iii) In my defence I put the Claimant to strict proof to provide the documentation which forms the basis of their claim. As the agreement which was supplied is covered by the CCA (1974) it retains the benefit of s127 (3) which stipulates that the original is needed for re-enforcement through the courts. Carey v HSBC was about providing reconstituted agreements for satisfying Section 77-79 CCA requests, not documents to be used in court.

 

 

7) I started receiving correspondence from Marlin Financial Services, now known as Cabot Financial (Marlin) (See Exhibit F) requesting payment for the MBNA debt

 

8) I received a letter from Marlin Financial Services dated [Date].stating that the Claimant had purchased the outstanding balance of the MBNA account from Brittannica Recoveries S.A.R.L and that they are the agents acting on behalf of the Claimant to recover the debt. (See Exhibit G)

 

9) I have not received a valid Notice of Assignment. A valid Notice of Assignment must be given to the debtor by writing under the hand of the assignor as required by S136(1) of the Law of Property Act 1925, [the LPA 1925].

 

For the assignment of a debt to be effective and so giving the Claimant a right of action, a valid notice of assignment must have been sufficiently served on the Defendant by a registered postal service pursuant to s 196(4) LPA 1925 before court action is commenced.

 

Failure of a valid Notice of Assignment means that the legal right to the debt cannot be assigned effectually at law within the meaning of s 136(1) LPA, 1925. [W F Harrison & Co Ltd V Burke and Another [1956] 2 All ER 169].

 

10) CPR31.4 Request

i) On the [Date].I issued a CPR 31.14 request to the claimant’s solicitors to obtain documents referred to in the Particulars Of Claim (See Exhibit H). This was signed for on the [Date]. (See Exhibit I)

ii) I received a letter dated the [Date].from the claimants solicitors confirming receipt of my request and that they have requested these from the original creditor and will be forwarded to me upon receipt. (See Exhibit J)

 

11) Mediation

i) On the [Date].I emailed the Small Claims Mediation Team to attempt to arrange settlement through mediation. (See Exhibit K)

ii) I received an email on the [Date].stating that they will approach the claimant. (See Exhibit K)

iii) A letter was received from the Court dated [Date].that a mediation appointment cannot be secured. (See Exhibit L)

iv) On the [Date]. as per the Courts Directions dated the [Date].I emailed the Mediation team again with a view of reattempting agreement through mediation. (See Appendix Exhibit K)

 

12) I submitted my defence on to the court on the [Date].. A copy of my defence was issued to the Claimant on the [Date]., this was signed for on the [Date]. (See Exhibit L)

 

13) I received a letter of acknowledgement of my defence from the Court dated [Date]. (See Exhibit L) which stated that the Claimant must contact the court within 28 days of receiving a copy of my defence, after that period the claim will be stayed

 

14) I received a copy of a letter issued to the Court Manager from the Claimants Solicitors Optima Legal dated the [Date]., acknowledging receipt of my defence (See Exhibit M) The 28 days expiry was the [Date]., therefore the claim should be stayed

 

15) To this date the Claimants have not provided me with any documentation to prove their case against me. 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.

 

 

 

I believe that the facts stated in this Witness Statement are true.

 

Signed :

 

Date :

[AndyOrch]

There you go ...a lot better...... I would lose 13 & 14 its irrelevant........ but I'm sure you now understand more fuller the basis of your defence and witness statement...and how to plead it more effectively.

 

Well done.

 

Regards

 

Andy

[pbaron]

Morning Andy

 

Thanks once again for your help.

 

I'm going to ring the court on the date the payment has to be made by the claimant to see if its been paid, and keep my eye on the date the Witness Statement needs to be received from the Claimant too

[AndyOrch]

Morning Andy

 

Thanks once again for your help.

 

I'm going to ring the court on the date the payment has to be made by the claimant to see if its been paid, and keep my eye on the date the Witness Statement needs to be received from the Claimant too

 

Now your getting the hang

[pbaron]

Morning just got a quick question

 

When i'm sending my copies of the Witness Statement out my partner has signed it. Am i ok sending a copy of the Witness statement signed to the Claimant or should i (can i ) remove the signature

 

Just don't trust them.

 

Oh and they have paid the hearing fee.

[AndyOrch]

Yes

[pbaron]

Morning

 

Hoorah had a phone call from the mediation service saying the claimant has contacted the court and withdrawn the claim !!!!!!

 

Thanks very much for the help ive received i shall make sure i donate to the site later...

 

Is there any steps i need to take now with the court or sending anything to the claimant to stop further attempts

 

Cheers

 

Paul

[AndyOrch]

No...just make sure you get a copy of the NoD and check with you local county court also.

 

Well done thread title amended to reflect the outcome.

 

Regards

 

Andy

[dx100uk]

hey another fleccing attempt bites the dust

 

 

well done CAG

 

 

dx