Backdoor Arrow/Drydens 2008 CCJ/CO - MBNA Card - , debt was already SB'd , **WON** set aside - Now being chased 12yrs later.!!

[the_shadow]

Hi mandyjane,

 

Got the PM, you have a while to file the defence so no problem there.

 

If nobody posts anything up I'll take a stab at it tomorrow/tuesday but I'm a novicelike myself so it will need checking with an experienced litigator..

 

Just a couple of things that could help someone doing the defense.

 

Can you confirm whether it is actually stat barred? Do they have records of you making payments.

 

You say no default notice received, is that the same with a termination notice?

 

S.

[the_shadow]

Hi Shadow and thanks for the reply..

 

It looks as though a payment was made in dec 05, the statments they have sent are looking a bit fishy!

 

The first statment dates back to july 2004 it looks as thou this is the first statment..as the balance is £0 plus the spending that month..now i got this card in 2000 and i know i used before 2004!

I have 23 statements in total half are the regular monthly ones we all get...the rest are a type of print out with a different account number to the original half. There are loads of charges and interest on them as well.

 

Anyway, in answer to the last question...NO default notice, No Notice of Assignment and No Termination Notice.

 

Thanks MJ:)

 

Ok, if the no default notice and strict proof should be enough to cast enough doubt but to make doubly sure, the payment they say occured in 2005, can you go back through bank statements for the same period to triple check no payment was made.

 

S.

[the_shadow]

Am I right her in reading the O.P. had a charging order placed on their house? If so somebody somewhere must have known this address, and thus why couldnt the court papers be served?

 

Oh I'm sure they KNEW the address but they could claim that they did a land search after the judgement, found the op owned a property and charged it, they werent to know if it was there main residence were they?

 

Common tactic employed by solicitors and cc firms to serve documents to old addresses alas.

 

S.

[the_shadow]

Hi MandyJane,

 

stay calm, plenty of time

 

S.

[the_shadow]

Ok first draft... people please feel free to pick holes.. a couple of things have been left out for strategic reasons..

 

1) service in respect of default, just in case original lender "finds" a default, chance they'll muck up the service days, evidence produced later will need to be questioned.

2) hearsay evidence, copies look like from microfiche, need to hold this card till hearing if it gets that far.

 

MandyJayne, you need to go through checking the dates, correcting the wrong ones and filling in the XXXXX bits where I just dont have the info.

 

This defence is literally a cut & shut job from one of Steven4064's defense, but I'm sure the wrong bits are mine so feel free to advise.

 

S.

 

IN THE XXXXXXXX COUNTY COURT

CLAIM NO.XXXXXXXX

 

Between

XXXXXXXXXXXX

Claimant

and

XXXXXXXXXX

Defendant

 

 

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

 

AMENDED DEFENCE

 

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

Background

 

1. The Claimant obtained by Default, judgement against the Defendant on 17/9/2008 due to the claim documents being served on another address. Further to this an interim charging order was obtained on the Defendants correct address on 20/10/2008.

 

2. A Set aside application was applied and upheld on 11/3/2009 due to the claim not being served correctly, the claim papers being wrongly sent to an old address. The Judge further ordered that documents requested on the 17th Nov by the Defendant were to be delivered to the Defendant by 1/4/2009. These documents were specifically:- Complete statements of account, a copy of the signed credit card agreement, the default notice [Any docs you specified in that letter should be listed].

 

3. This deadline passed and the court was notified of non-compliance by the Claimant with the court order by letter on 8/4/2009. The court gave the Claimant until 22/5/2009 to produce said documents.

 

4. Paperwork from the Claimant arrived on the 23/5/2009, the following documents were produced by the Claimant:

i)A copy of the Defendants MBNA Credit card application dated xx/xx/xxxx.

ii)Reply to the Defendants original Defence

iii)T&C of the MBNA Credit card

iv)23 Statement copies with differing account numbers on half of these.

 

It should be noted that in response to the Defendants requests and the court order the Claimant has failed to produce a Notice of Assignment or Default Notice.

 

The Default Notice

5. Notwithstanding the matters pleaded elsewhere in this defence, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement or terminate the agreement.

 

6. A Default notice has not been served on the Defendant and the claimant is put to strict proof that any said default notice was served. No copy of the Default notice has been provided to the Defendant in violation of a court order dated 11/3/2009.

 

7. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

8. 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 has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

9. 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 Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

10. 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 fiction that the agreement endured when that cannot be the case, as the claimant has stated this agreement was terminated on XX/XX/XXXX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

 

The Notice of Assignment

 

11. The Claimant states the account was purchased from MBNA on xx/xx/xxxx, a notice of assignment was not served to the Defendant and therefore the Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim. It is averred that the Claimant failed to serve the Notice of assignment which is a requirement under the Law of Property Act 1925 under section 136(1).

 

12. The Defendant has never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

13 The Defendant respectfully submits to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

14 The Claimant states the notice was “sent” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

 

15. It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

16. To the best of the Defendants knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

17. Consequently, the Defendant does not believe that any notice of assignment was properly served upon the Defendant at the date of the claim, and therefore any assignment has not been perfected in law.

 

18. The defendant requested a copy of the alleged served notice of assignment which was further backed up by a court order dated 11/3/2009. The claimant has failed to produce a copy of the termination notice.

 

19. As the Notice of Assignment has not been provided either served originally or a copy provided after the fact the Claimant is put to strict proof that he has standing before the court to bring this claim in his own right.

 

The enforceability of the Agreement

 

20. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts. These conditions are prescribed under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to being the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Inter alia, the agreement must:

properly identify the debtor by name and full postal address (Schedule 1);

 

Inform the debtor of the Protection and Remedies Available under the Consumer Credit Act 1974 to Debtors under Regulated Consumer Credit Agreements. In the present case, this means there should be a section headed “Your right to cancel” containing the required information (Schedule 2);

be signed by the debtor in a signature box of the prescribed form (schedule 5); and

contain certain prescribed terms relating to important financial information (Schedule 6).

 

21. Commenting on the provisions of Schedule 6 in his judgment in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299, TUCKEY LJ said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1." (my emphasis)

 

22. The Defendant admits that the agreement supplied complies with the requirements of the regulations in respect of identifying him as the debtor but does not contain any of the prescribed financial terms. This is sufficient to render the agreement unenforceable.

 

23. In this last respect, the defendant refers to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul):

 

“28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

“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….”. (my emphases)

 

“30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....”

 

And furthermore:

 

“36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor”.

 

24. Finally, it should be noted that, in the same judgement, LORD NICHOLLS OF BIRKENHEAD, said:

 

“49. .............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.(my emphasis)

 

“50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.” (my emphases)

 

25. The copy of the agreement provided by the Claimant is an application form signed by the Defendant and dated XXXXXXX.

 

26. Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, gives the prescribed (financial) terms relevant to a Credit Card agreement (agreement for running-account credit) as:

 

Credit Limit

3 Agreements for running-account credit

A term stating the credit limit or the manner in

which it will be determined or that there is no

credit limit

 

 

Rate of Interest

4.Agreements for

(a) running-account credit

A term stating the rate of any interest on the credit to be provided under the agreement

 

 

Repayments

5. Consumer Credit Agreements

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.

 

27. It should be noted that none of these terms are present in the Application form provided by the Claimant.

 

28. As has already been noted, the application form was signed and approved in XXXXXX. The T&Cs supplied separately by the claimant are quite clearly separate to the main application form Thus, the documents provided have both my signature and the prescribed terms but not in the same document. The requirement that “all the terms should be in a single document”, and “within the four corners of the agreement” as demanded by TUCKEY LJ in Wilson and another v Hurstanger Ltd is not met.

 

29. From this and from the above judgement of LORD NICHOLLS OF BIRKENHEAD, it is clear that without a credit agreement, signed by the defendant and containing the information prescribed in the regulations, the Claimant’s claim cannot succeed.

 

Statement of Truth

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

 

 

Dated this xx day of xxxxxx, 2009

The formatting will probably go to pot so the PDF version is here...

Defense for MandyJane.pdf

Edited May 25, 2009 by the_shadow

[the_shadow]

Shadow your a star...

 

Thank you so much;)...

 

there is no termination notice either so should that be included??

 

Shall i wait now and see if anyone can add or change anything?..i have also PM'D "ive got no money" as he has been through the same with Arrow/mbna and mortimer clarke..his defence is a bit out of my league..he may put in some help but not had a response yet!!

 

MJ

 

I did ponder putting that in although in my opinion I thought the key is that they have terminated you whilst the default was incorrect coupled with the application not containing any prescribed terms. Add to this no notice of assignment means they should have to prove they have the right to bring the action against you (disclose the deed of assignment)

 

You've still got plenty of time to get this in so no worry yet, sure more will add to it or correct it where needed.

 

S.

[the_shadow]

Ok i have amended copied and pasted this Defence as best i can...just need to print out...will just now wait and see if i get a reply from anyone with their opinion on it.

 

Questions: Do i send any other documents with this Defence?

Do i post it or hand deliver it, and how late should i leave getting it

to the Court, and who do i address it to?

 

thanks MJ

 

Hi MJ,

 

No, just the defense although a covering letter to the court never goes amiss.

 

If you post send by SD to guarantee they get it.

I would say 2-3 days before deadline as SD is next day

The envelope just needs to go to the court... the defense should have the court claim reference on it so they'll know where to file it.

 

Have to say statute barred would be a complete defence, so I would spend some time trying to prove this looking through old statements etc if you can.

 

If the statements they have provided show a cheque payment, may be worth ringing the bank and asking if they have a copy of the cheque still on record. If you think its statute barred it really is in your interests to prove this.

 

S.

[the_shadow]

Hi Shadow..

 

No defo not statute barred as first thought.

 

The "application form" they sent to me as the "credit card agreement" is defo not part of the t's &c's they sent.

 

the thing i signed says:

 

IMPORTANT - DATA PROTECTION

 

Before you sign this agreement you should read condition 11 in the T'S & C'S

 

You agree that we may process use, record and disclose personal information as described in condition 11.

 

Well on the sheets of T's & C's they have sent me, condition 11 is all about altering this agreement/standard interest rates/handling fees..clearly not the ones from the application form or from 2000! also the £12.00 fee is in condition 3 - not from 2000 either i believe....any comments??

 

If you are happy that the t&c are not connected to the agreement then the defense as posted stands in my opinion.

 

S.

[the_shadow]

Im happy with that:D

 

sorry one more question: Will i need to attend another court hearing with this?

 

MJ

 

Depends on the judge or clerk? normal route is for defence to be filed, a response from the claimant, allocation questionnaires and then the judge looks to see which track and assigns it.

 

Just had a thought, that covering letter you send with the amended defence, in my opinion needs to state... "please find enclosed my amended defence as ordered by judge xxxxx on xx/xx/xxxx. I would like to bring to the courts attention that the claimant has failed to provide the documentation ordered by the judge in his order of xx/xx/xxxx, namely the Default Notice has not been supplied to myself"

 

Doesnt hurt to let the court know the other side are not playing fair, this disclosure would normally take place at AQ stage where you would ask in directions for the judge to strike out if they cant provide the documentation.

 

as always just my opinion

 

S.

[the_shadow]

Hi MJ...still busy I see!!

 

As a layperson, para 1 is a little ambiguous for me. Does it mean simply that they have to provide you with the documents or you and the court?

 

In my opinion I read para 1 to mean they should have provided the documents requested and already mentioned in the order dated 11th March to you by 22nd May otherwise the claim will be struck out.

 

If the court havent received anything next week either it might be worth a letter advising the judge/court that you have not received these documents.

 

S.

[the_shadow]

I'm a bit confused -

 

Glad I wasnt the only one who read that and thought... what defence? MJ, you are the defendant and not counter claiming as far as I understand, you also had until 5th June to get your defence in.

 

S.

Edited June 1, 2009 by the_shadow
Went back for the date defence had to be filed

[the_shadow]

Hi sorry for confusion,

 

What i meant to put was the court have received the claimants "reply to Defence" which had to be there as stated on the court order, by 4pm 22nd may, but not received until 28th may.

 

The details of the order you posted up didnt state this as far as I'm aware.. did you omit this?

 

as far as I can remember the order was for them to give the complete disclosure documents listed to you by 22nd may

 

and that you have until 5th June to file full defence in reply?

 

S.

[the_shadow]

shadow im getting really confused..

 

Im looking at the court order and it says

 

Before district judge ***** sitting at ****county court

 

IT IS ORDERED THAT

 

1. Unless by 4PM on 22nd May 2009 the claimant provides the documents requested by the defendant pursuant to paragraph 3 of the order dated 11th March 2009, the claim be struck out.

 

2. The time for filing of the defence be extended until 4pm on 5th June 2009.

 

Dated 28th April 2009.

 

The claimants sols have sent to me and the court a reply to defence as stated above with no docs apart from the set of statements, the application form etc etc...no default notice etc.

 

I have no idea if this is right or wrong...sorry but this is all i have

 

Do you need me to type in their reply to Defence?

 

thanks MJ

 

Ok, this basically says they had to provide the documents to you, why theyve done a reply to defence instead of complying with the order I dont know but its an unless order and they havent met the required instruction so the claim will be struck out.

 

S.

[the_shadow]

If the order says "unless by 4pm on 22nd May...the claim will be struck out" and they didn't, that would seem to me to be GAME OVER.

 

Youre just too quick

 

S.

[the_shadow]

No - at this point you don't but it might be an idea if you do type it up so we can see what their response is

 

the bit that is confusing me is if this is as MandyJayne has stated their reply to the set aside application from Nov 08, the judge has ruled on this, surely they should have requested a set aside of the judgement/order he made not send it in reply to the order of disclosure that the judge requested complied with.

 

Or am I just even more confused than I thought?

 

S.

[the_shadow]

No - I think that they've filed a formal "Reply to Defence"

 

Ahh yes makes sense now.

 

S.

[the_shadow]

If I am right that the Claim has been struck out then no you don't...

 

I'd quite like another Cagger - somebody like PT - to tell me if they agree with me. I have asked the site team but no one has come back to me.

 

I think what we may need to do is, in order, to protect your position is to file a defence

 

Now in laymans view I liken court to a game of chess, each party has a turn so to speak:-

 

So in my eyes, the claimant has replied to the order but late and not fully quantifying what documents have been sent.

 

The defendant has then asked for a strike out on the basis that the order hasnt fully been responded to and now it sits before a judge.

 

I would have thought no need for the defense unless the judge dismisses the strikeout application? and if he does dismiss he should give more time for the defense to be filed otherwise it prejudices the case when the defendant has claimed they have not fully had the information required.

 

Am I being too simple about this?

 

S.

 

[the_shadow]

I agree with you my only concern is as I pointed out in my earlier posting

 

Ok I've just gone back and re-read this entire thread!

 

Key points of SAR information as I see it:-

 

17th Nov SAR sent (template hopefully form the debt forum?)

30th Dec LBA for non-compliance with SAR

xx Jan Response from claimant not compliant - No default notice

21st JAN CPR 31.14 letter

10th Mar Response from Claimant Still no Default notice

23rd May Further docs but still no default notice

Reply to defense states defendant needs to go to OC for further information.

 

Now as I see it without a default notice they can show no legal exit from the CCA1974 agreement and hence no case, its up to them to provide this.... not the defendant to request it. Without this document they have no cause for action at all as far as I can see it.

 

Thus as the default notice was listed in the 17th Nov letter and subsequent order by the judge they have not complied despite their assertion that they have.

 

what perhaps we should have done is a strike out application on the fact no default notice has been served or presented to the defendant and as such no case to answer as the agreement was not legally terminated, Steven4052 did one on an amex case not long ago.

 

I wonder if the judge will ask for a prelim hearing to ascertain which documents have been delivered and which havent?

 

S.

 

Edited June 4, 2009 by the_shadow
missed words tsk. tsk.

[the_shadow]

Thanks guys...

shadow i was just going to ask the same thing refering to a section from the CCA request template below (does this paragraph mean) they have to suppy under this request:

 

1 CCA

2 NOA

3 TN

4 DN

 

And yes the SAR and CCA sent, was from CAG

 

And please bear in mind i have NEVER received a DN, the NOA posted on here is not a valid one the CCA they sent is an application form with no t's and c's attached and no Termination Notice.

 

thanks MJ

 

Good..... the CAG debt templates have in them requests for the default notice. As to s78 request it means t&c that applied or have been varied not the extra bits you list. The app form you have recieved has the t&c on the back so they will claim....... although it looks a microfiche so if ever it did get to court it would have to be acknowledged as hearsay evidence and could be questioned accordingly.

 

However I think youre missing the point MJ, without a DN they cant claim anything as the agreement has not been proven to have been terminated correctly.

 

S.

 

IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinions. These opinions are based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal or debt related training.

[the_shadow]

As an aside, I have just had my SAR back from MBNA. There are no copies of any default notices in there although I know they've been issued as I'm currently papering the downstairs loo with them!!

 

It's pretty commonplace for these to be computer generated and no copies kept. My understanding of reading these threads is that Judges appear to be prepared to accept these records as proof of a DN together with a print out of what would have been issued.

 

Do you have any such print outs that you can check MJ??

 

Absolutely correct, most are templates letters that merge with your personal data and get printed straight away....

 

The point I'm making and probably not very well is that in the letter of 17th Nov the defendant requested a copy of this document. The claimant hasnt provided it or details of whether one was created and therefore they have no cause of action UNTIL they get a copy of that document or details of when it was sent and are as such in breach of the order by the Judge.

 

MJ will need to complain about the SAR MBNA response tho to get the printouts and details of when a DN was supposedly sent and where to possibly.

 

S.

Edited June 4, 2009 by the_shadow
added bits originally missed due to speed reading/writing

[the_shadow]

As far as MJ is concerned then - there is an order that they comply and we say that they haven't.

 

The case should therefore be struck out - they will then have to apply to reinstate and at that point there should be the argument about if they have or have not complied

 

thats how I understand it... and if and when they do re-instate and do comply with getting a copy of a/the default notice the defence should be amended to note the unenforceable agreement/application, possibly dodgy due to service days default notice and possibly dodgy NoA or an attempt should be made to strike out due to faulty DN possibly

 

S.

[the_shadow]

Yep, don't disagree Shadow...just suggesting MJ check for any evidence of one having been issued.

 

If she has a log and there is nothing recorded against the alleged date of issue then that should also strengthen her case;)

 

Sorry WelshMam, had to run off to a meeting and just quickly replied.. totally missed the first three words of your post

 

S.

[the_shadow]

I have until 4pm today to file a defence, which according to most of you and PT (judging by the first non-compliance) i cannot do as it becomes immaterial. The CPR3.4(2) © dismisses the claim, is this something i should look at doing, sorry im just covering myself here on what to do next and looking for what you guys think!!

 

Thanks MJ

 

IMHO PT2537's comments are still valid... they still havent complied with the order of the court. Your strike out application is being put before a DJ and you'll need to await the outcome of that in my opinion.

 

The letter you sent to the court clearly stated WHY you would not be entering a defence as the other side hadnt complied with an order.

 

S.

[the_shadow]

Thanks citizen B

 

so am i going in to the DJ to put forward these main points:

 

twice the claimant has failed to respond in the given time to two court orders to produce all docs requested by me, (CCA and SAR).

 

I have no vaild CCA (just application form) T&c's not attached, seperate and with the new £12 charge, so clearly not from 2000!

No default notice

No NOA

No TN

 

thanks

 

MJ:)

 

Hi M&J as per previous advice...

 

imo you need to be sure what you have asked of the claimant and what has been given... also what has not! you may need to describe to the judge why the information you seek is required but hopefully he'll be experienced in CCA1974 and will know the importance of the agreement/default notice/termination notice.

 

S.

[the_shadow]

why have i gone back down to a basic account holder, it was on classic last time i looked!!!

 

We've all been relegated one place

 

S.