dpick and mbna and capital one

[dpick]

MBNA have filed a defence without serving me with a copy and judge has allowed this, yet again another instance of abuse of the court system by the banks.

 

I have to file AQ by 4th December. I will be attaching a reply to defence to my AQ when I see comments posted for the defence.

 

I am entering each paragraph as per the defence but with personal details removed. My comments are in red apart from copy of the original Bank of Scotland agreement/application form MBNA supplied.

 

DEFENCE

 

 

1, In this Defence, references are made to the details included in the claim form and to the contents of the Particulars of Claim. However, the Claimant's contentions are vague and therefore it is difficult to respond fully in this defence.

 

Funny the judge at the stay hearing commented on how my POC was concise and well laid out and ordered that each and every allegation or claim was to be answered in full.

 

2, Insofar as any allegation or matter in the Particulars of Claim is not expressly addressed below, such allegation is denied, and the Claimant is required to prove each and every element of such allegation or matter.

 

"Not expressly addressed below, such allegation is denied", this is part of the order the judge made with regard to the requirements to meet the order for the defence document...see post 195.....The Defendant shall, by 4:00pm on 9 November 2007, file and serve a fully particularised defence responding to each of the allegations and claims set out in the particulars of Claim........ I do not believe that allegation is denied is a fully particularised defence to an allegation.

 

 

3, It is denied that any Claim is disclosed in the Claimant's Particulars of claim. The remainder of this Defence is strictly without prejudice to that contention. The Defendant reserves the right to make a request for further information and to amend the Defence as appropriate on receipt of further particulars.

 

Could someone give me this in plain English please.

 

4, It is admitted that the Claimant holds a credit card account XXXX XXXX XXXX XXXX ("the Account") with the defendant.

 

5, The defendant admits that the Claimant made a request on the 12 March 2007 under Section 78 of the Consumer Credit act 1974 ("CCA"). The Defendant received this request on the 13 March 2007 and the payment of £1 was shown as received on 14 March 2007. The Defendant responded in full on 4 April 2007.

 

6, The Defendant denies that the statutory copy of the credit agreement which was sent out to the Claimant was not legible.

 

This is the copy they sent see bottom "film Please" I do not believe I need to make any more comment on the copy of agreement/application form.

 

 

7, The Defendant denies the Claimant's assertion in paragraph 3 of the Claim, that it is a statutory requirement under Section 78 to provide the original terms and conditions. The combined effect of Regulations 7 and 11 of the Consumer Credit (Cancellation Notices & Copies of Documents) Regulations 1983 is that the lender (the Defendant) can provide the most recent set of terms and conditions and need not provide a copy

of the original terms and conditions if they were kept, or to be kept, by the borrower (the Claimant) under the terms or in consequence of the original Agreement. Furthermore the Claimant admits in paragraph 3b of the Claim that he has received these documents.

 

This is paragraph 3b

 

"3 b) The Defendant produced a barely legible photocopy of a microfiche file copy of the original Bank of Scotland agreement (Exhibit 1) together with MBNA Terms and Conditions from June 2006(Exhibits 2,3 and 4). I respectfully submit that the Terms and Conditions supplied for a CCA 1974 request be specifically the Bank of Scotland terms and conditions that were in effect at the inception of the agreement on 20th April 2000. Plus all variations to them since, not MBNA Terms and Conditions from June 2006"

 

It is my contention that MBNA would have to produce a legible copy of the original Bank of Scotland agreement and the original Bank of Scotland T&C containing all prescribed Terms allowing amendments etc in court not the above clap trap.

 

8 The Defendant denies the Claimant's assertion in paragraphs 3b and 4 of the Claim that the Agreement is unenforceable. The references to Section 61 and Section 127 (3) are inappropriate and not relevant to a claim made under Section 78 of the CCA as they only apply to the original credit agreement. For the avoidance of any doubt, the Defendant denies that the original credit agreement is unenforceable.

 

61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed

terms and conforming to regulations under section 60(1) is signed in the

prescribed manner both by the debtor or hirer and by or on behalf of the creditor.

 

 

The Defendant denies that the original credit agreement is unenforceable PROVE IT MBNA

 

9 The Defendant denies that it has taken any steps to enforce the Agreement. In any event the Defendant believes it is entitled, if it so wishes, to take steps to enforce the Agreement.MBNA were informed by special delivery letter 30 May 2007 that account was in dispute and I believed they did not have an enforceable agreement. I received a letter from MBNA 5 June 2007 demanding payment(enforcement in my view)I then received 19 phone calls from 12 June to 7 July (9 calls recorded) I then sent harassment e-mail to donna pomfrey she stopped the calls (SAR gave copy of internal e-mail where she orders them to be stopped while investigation is made.) At this point MBNA start adding charges and int erst again. The Defendant admits to passing data onto the credit reference agencies, it is able to do so under the terms and conditions of the Agreement, and it is obliged to report accurate information through its membership of the various credit reporting agencies and as a result of data protection legislation. Yes MBNA you may be able to pass accurate data BUT you have been adding unfair charges and applying interest to those charges so the data you passed is NOT accurate data.

 

10 It is admitted that the Claimant has been charged late payment fees and over limit balance fees under the Agreement over the period claimed (the fees). The fees have been added to the Claimant's account balance, and have a total value of £755.00. Schedule of charges = £879 they have not looked at amended schedule from LBA and then POC or no one has told them they are adding charges again. It is denied that any of the fees charged represented a penalty and/or that the relevant clauses are unfair, extravagant and/or unenforceable.

 

I wont bother here to answer the Defence claim that the fees are a penalty etc they are well covered on the site.

 

11 MBNA calculates the interest charged to the Claimant's account on those fees as £771.98. I calculate this as £1072.94

 

 

12 Without prejudice to paragraph 11 above, MBNA has credited the sum of £1364.21 on or around the 12 September 2007 to the Claimant's account. Strange that MBNA did this when they were served by the court on 2 September also they never wrote to me to make this offer which I would have refused as this did not cover the full claim or that I required payment by cheque (agreement and charges as one claim) I did not know anything about this until I received my statement on 10 November This credit is in addition to a previous goodwill payment of £315.00 applied to the account on or around 31 August 2007 They made this payment in August but it appears on my September statement with no explanation at this time all I had received from MBNA re complaint/claim has been acknowledgement letters I have not received anything from them even after starting court process.. The total amount of the credit is therefore £1679.21. This credit has been given as a gesture of goodwill, in respect of the fees, interest and the court fee. I claim this payment is an involuntary payment as at the time it was made I had made a claim through the court where part of my claim was that I be paid by cheque this is for the court to decide not MBNA.MBNA denies that the Claimant has any further claim against it in respect of the items and/or interest. The Defendant denies that the Claimant is entitled to a cheque refund of this sum as even after the credit of £1,679.21 was posted to the account, there was still a balance owed to the Defendant by the Claimant of

£3,544.33.

 

 

13 On that basis, the Defendant would request that the court strike out this Claim under the CPR, parts 3.3. and 3.4 as disclosing no reasonable grounds for bringing a claim given it has refunded to the claimant's credit card account the total value of the claim. I think already answered above.

 

Thanks in advance dpick:evil:

[dpick]

On 28 November I made a CPR PART 18 request to MBNA (copy to the court with copy mof online delivery receipt.) for further information re the original agreement from Bank of Scotland and all documents relating to the inception of the agreement.

 

Today is the deadline for MBNA to respond to my CPR PART 18 request for all documents relating to the original Bank of Scotland credit card bought by MBNA. As normal MBNA have not responded at all. Anyone know the next step re this IE do I now ask the court for an order to force MBNA to respond to the part 18 request or is it just a matter of informing the court that MBNA have not complied with a CPR request.

 

Fed up from Teesside dpick:sad:

[Hopeful1]

Dpick, i'm really sorry that A) i can't help you with this and B) that they're messing you around so much.

 

It would help if the court would not let these companies get away with so much.

[dpick]

Applied to court this morning to have an order applied to the part 18 CPR request I have sent to MBNA. The court office had me change the part 18 request to something like "Original executed credit agreement and all other related documents applicable at the time of the inception of the agreement plus all documents relating to amendments and issue of new credit tokens for this agreement for examination by the court and the Claimant by DD/MM/YYYY" I was advised that the Judge would add the date that MBNA had to comply by.

 

Court office said that I would receive a copy of the order and when MBNA complied I would be invited to attend court to examine these documents.

 

dpick:)

[dpick]

Well finally got responce to my application for enforcement of part 18 cpr request with MBNA, judge has ordered them to comply by 4pm 22 Feb 2008 that gives them another 4 weeks I issued the original part 18 to MBNA on 29 November 2007

 

dpick

[humbleman]

dpick

 

An news on this.

[dpick]

Hi MBNA are being right pirate's with this they wrote to the court saying they had refunded claim in full to account and case should be closed NO WAY they have not declared the agreement unenforceable and it is my be fief that as they just paid refund into account after commencement of the court case they have not tried to make me an offer at all and in my POC one of the items was that I be paid by cheque. I have a hearing coming up to argue this and to get part 18 order made again as judge stayed the whole case.

 

dpick:mad:

[redsue]

Well finally got responce to my application for enforcement of part 18 cpr request with MBNA, judge has ordered them to comply by 4pm 22 Feb 2008 that gives them another 4 weeks I issued the original part 18 to MBNA on 29 November 2007

 

dpick this is absolutely disgraceful with you being a L.I.P. against a mighty corporation - good luck mate keep at it

[steven4064]

dpick

 

As MBNA don't seem to have complied with your Part 18 request by the date specified in the order, you could ask for a strike out of their defence under CPR Rule 3.4

3.4(2) The court may strike out a statement of case if it appears to the court – ...

 

© that there has been a failure to comply with a rule, practice direction or court order

[dpick]

Hi all put application for a hearing to lift or amend the order, just checked today and all the court office could tell me was that file had been taken from court office to go before district judge. I hope that this is not another of these district judge bloggs has on the courts own etc etc.

 

dpick

[dpick]

I think maybe MBNA have heard from court.

 

I have not heard anything from court BUT today got a phone call from MBNA they are offering to clear the debt.

 

I had asked for declare agreement unenforceable

Remove all data from CRA files

refund charges and interest applied to charges now = £2000

 

 

I told them this was not enough to stop the court case, I also require them to remove all data from CRA files and refund to be paid to me. I could hear the lady on phone talking to someone in background and was offered clear all data and £250 as compensation (they said they could not reverse the refund on the computer system). I reminded them that I was a computer programmer and not to try feeding me bullsh*T, A bit more talk off the phone then final offer of £500 compensation.

 

I then told them to put it in writing and I will not stop court case until the money is in my bank account.

 

I just cannot believe it I will have to see this in writing before I can convince myself this happened.

 

This has taken 13 months from sending CCA and SAR, I cannot thank you all enough for all the help and encouragement given to me.

 

I will make a donation as soon as the money is in my account.

 

 

dpick

[banker_rhymes_with]

Excellent news, hope they do come up with the Confirmation Letter and Payment.

 

My own fun is just starting, first CCA now with them plus Call Harassment Notice to keep them on their toes...guess who Called Today despite this!

 

The ignored Call is now Logged for my future Harassment Claim.

 

Looking forward to seeing you post that it has all come good!

 

Cheers,

BRW

[steven4064]

Well done for sticking in there - result!

[humbleman]

I think maybe MBNA have heard from court.

 

I reminded them that I was a computer programmer and not to try feeding me bullsh*T, A bit more talk off the phone then final offer of £500 compensation.

 

dpick

 

Excellent

 

Any chance of a summary of events, I am just lost. Would help others.

 

Thanks

[Hopeful1]

Fantastic Dpick - you so deserve a result after all the time and effort you have put it. Very well done

[dpick]

Hi all interesting development checked my credit ref file with Experian and MBNA is now saying balance "0" and status history is all "0".

 

Rang the 24 hour customer enquiry line entered account number and just advised that my balance is "0" and my credit Limit is "0". I normally get passed automatically to collections dept.

 

Will wait and see I have not yet received any letter confirming phone call details though this would appear that something is on the way, I have not informed court that case is settled yet I want it all in black and white first.

 

 

dpick:)

[banker_rhymes_with]

Hello dpick!

 

I want it all in black and white first.

 

Absolutely. Something they can't go back on.

 

Now is not the time to relax, as the MBNA snake is not dead by any means. Keep your guard well up and your wits about you. The viper is still hissing in the corner.

 

I'm sure you are still prepared to go to Court. So, just keep on plannng to do just that...all the way until there is no doubt you have the written evidence you need.

 

Cheers,

BRW

[dpick]

Finally got the letter usual guff they do not admit they are wrong, will not admit agreement unenforceable. But they have cleared account balance, deleted all reference to MBNA account on CRA files and included cheque for £1660 as a gesture of good will and the "Now consider the matter closed" thats it in black and white.

 

Have checked Experian and no record of MBNA present.

 

I will not close the court case untill cash in my account from cheque.

 

My Credit card was a Halifax bank of Scotland Sonycard sold to MBNA late 2003 early 2004 all that MBNA were able to produce with regard to original agreement was a photocopy of a microfiche copy of the front of the agreement no prescribed terms on that. I believe that the terms were on the back, when they aquired the card they only copied the front of the agreement onto microfiche so the were unable to produce an enforceable agreement. I WONDER HOW MANY OTHER PEOPLES AGREEMENTS ARE THE SAME.

 

all the best dpick:)

[steven4064]

If clearing the account balance, deleting the references to MBNA on CRA files and sending a cheque are not an admission that they are wrong, I don't know what is

[citizenB]

This is looking good

[gill5blue]

Hi

GOOD NEWS--WELL DONE

I have been following your thread and I have my own fight going on with MBNA as to no enforceable CCA (and other credit cards). This gives me hope, it is slow going but I can see they do not have an enforceable CCA otherwise I would have thought after 10 months I would have answerable to somebody by now , but the letters I send keep them at bay, so I think I am winning.

Gill

[FANTASY CHARGES]

Finally got the letter usual guff they do not admit they are wrong, will not admit agreement unenforceable. But they have cleared account balance, deleted all reference to MBNA account on CRA files and included cheque for £1660 as a gesture of good will and the "Now consider the matter closed" thats it in black and white.

 

Have checked Experian and no record of MBNA present.

 

I will not close the court case untill cash in my account from cheque.

 

My Credit card was a Halifax bank of Scotland Sonycard sold to MBNA late 2003 early 2004 all that MBNA were able to produce with regard to original agreement was a photocopy of a microfiche copy of the front of the agreement no prescribed terms on that. I believe that the terms were on the back, when they aquired the card they only copied the front of the agreement onto microfiche so the were unable to produce an enforceable agreement. I WONDER HOW MANY OTHER PEOPLES AGREEMENTS ARE THE SAME.

 

all the best dpick:)

 

DPICK well done have just read all the thread

 

since you started the thread in feb 2007 the general knowlege relating to absolute assignment ( eg halifax sale of the debt to mbna) now freely available on this site was only in its infancy at the very best.

 

one basic question to ask to mbna would have been

 

please prove you have the authority to chase this debt up , the words mbna presumably not being in residence on the front of the application form as opposed to the words sony/halifax/bos etc

 

out of interest did you mention anything like this

[dpick]

Hi as you say when I started did not know a thing and did not think about this also I had letters from both HBOS and MBNA when they passed these cards to MBNA though I did check with HBOS later when I started trying to reclaim charges and while they did have records on computer up-to the sale of the cards they had sent all the hard copy documents for the customer credit agreements to MBNA and as we now know MBNA just made microfiche copies of the front of the agreements nothing else and then destroyed all the documents.

 

dpick:)

[FANTASY CHARGES]

Hi as you say when I started did not know a thing and did not think about this also I had letters from both HBOS and MBNA when they passed these cards to MBNA though I did check with HBOS later when I started trying to reclaim charges and while they did have records on computer up-to the sale of the cards they had sent all the hard copy documents for the customer credit agreements to MBNA and as we now know MBNA just made microfiche copies of the front of the agreements nothing else and then destroyed all the documents.

 

dpick:)

 

YES and if you have received notification you still ask them for strict proof of "service" of the documents

have just found this little bit in civil procedure rules part 32

under the heading evidence

 

 

 

Notice to admit or produce documents

32.19 (1)A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

 

it is important to be aware of the above