Link Claimform - MBNA card 'debt' **WON**

[stebiz]

I received a summons for an alleged 'MBNA' credit card. I issued a defence saying I disputed debt and was awaiting a copy of alleged CCA. This was about 3 months ago. I then received an Allocation Questionnaire and I did same again. They have just completed an AO themselves.

 

I obviously need to get a full defence together. I am aware I can't submit new evidence on the day. Is there a form I should fill in? Should I send more info to the court? I still haven't received a CCA. Is the onus on me to provide evidence now? Any ideas?

 

Cheers

Steve

[stebiz]

Bumpety Bump

[surprise]

Monopoly23 was in the same position with Next. There is a thread in General Debt Forum - Urgent!!!Help!. Laiste did a defence for her post #185. This might help.

[Curlyben]

Here you go this should give you a bunch of ideas: http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/90012-just-been-court-cl.html

 

The main one is House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

 

Basically this is all about the enforceabiltiy of "debts" without CCA.

[stebiz]

Can they just show up with a CCA on the day??

 

Stebiz

[Curlyben]

Yes they could, but your counter to that is why, if they had the CCA all alnong did they not supply when you requested it ?

[stebiz]

In the particular instance I did not request it by sending the required £1. However I requested this in my initial defence back in March. So they haven't actually broke any law (they caught me a bit on the hop). I had other cases I was dealing with. I have however since requested a full S.A.R - (Subject Access Request) but am only 6 days into this. In effect they could keep me waiting a further 34 days. When they completed the allocation questionnaire which was about 10 days ago they asked for a further 28 days 'so we could try and reach agreement'. I'm unsure if they are trying to use this time to try and locate any alleged agreement. Would it be unreasonable to write to both them and the court saying that I am awaiting a response to a SAR, so I can provide the judge with a full account of what has happened. This has caught me on the hop a bit??

 

Stebiz

[tomterm8]

Yes they could, but your counter to that is why, if they had the CCA all alnong did they not supply when you requested it ?

 

if evidence suddenly turns up at the trial, you are entitled to ask to inspect the evidence and/or to adjourn proceedings so that you can ammend your defence.

 

P.S. Have you written to them yet, asking for disclosure?

 

Is it possible for you to post the Particulats of Claim and your defence? Minus any persoanl details like name, address, a/c number etc.

[stebiz]

if evidence suddenly turns up at the trial, you are entitled to ask to inspect the evidence and/or to adjourn proceedings so that you can ammend your defence.

 

P.S. Have you written to them yet, asking for disclosure?

 

Is it possible for you to post the Particulats of Claim and your defence? Minus any persoanl details like name, address, a/c number etc.

 

This 'alleged' debt was with MBNA and was sold to Link Financial in 2001. Since then I have made a payment of £15 so it is not statute barred. Out of the blue I received a summons - I was under the impression they had written it off. I issued a quick defence saying that I dispute debt and await a copy of a CCA. I have had acknowledgement from Link that they are awaiting this from MBNA. The initial summons was back in March. I have still not received a copy of the 'alleged' CCA. A week ago I wrote to MBNA enclosing £10 and requesting SAR. Unfortunately I can't post anything else because I haven't got any.

 

Cheers

Stebiz

[tomterm8]

On the summons form there should be a "Particulars of claim" section, which says exactly what they are claiming. What does it say? (As in , their exact wording, minus any personal details)

 

Do you have a copy of your actual defence? I want to know what you said, exactly.

 

Sorry to be a pain, but I need these two pieces of information to be able to give you any constructive advice.

 

Sometimes with law, it's the subtle mistakes that matter.

 

Also, can you check out their Allocation Summary - where it says have you made any applications, or are you planning to make any applications soon? they often try to apply for a summary hearing, and it's worth checking that they haven't kept you in the dark on any application they have made.

[stebiz]

On the summons form there should be a "Particulars of claim" section, which says exactly what they are claiming. What does it say? (As in , their exact wording, minus any personal details)

 

Do you have a copy of your actual defence? I want to know what you said, exactly.

 

Sorry to be a pain, but I need these two pieces of information to be able to give you any constructive advice.

 

Sometimes with law, it's the subtle mistakes that matter.

 

Also, can you check out their Allocation Summary - where it says have you made any applications, or are you planning to make any applications soon? they often try to apply for a summary hearing, and it's worth checking that they haven't kept you in the dark on any application they have made.

 

I dispute this 'alleged' debt and await a copy of a Consumer Credit Agreement from the claimant.

 

I understand this is seriously lacking but I have no further information. Statements/CCA or anything. I haven't heard from them for approx 4 years.

I received a letter from the court saying that unless the Allocation Questionnaire was forthcoming by 29th June 2007 it should be struck out.

They have ticked No in anything in relation to making applications.

 

In other information they say that

'The defendant has provided no details of the defence'

'The defendent has not previously disputed the account....'

'The claimant is awaiting a copy of the original agreement from MBNA'

They have backdated the Allocation Questionnaire to the 20th April. Even the letter they sent on the 28th June is dated 20th April 2007.

Cheers

Stebiz

[tomterm8]

i would phone up the court and ask them what the status of the case is.

 

You will need to ammend your defence.Have you recieved a notice of assignment etc for the debt?

 

I would suggest contacting Laiste.

 

p.s., still need the Particulars of Claim... I know it feels like pulling teeth, but I need to know if they even particularised the claim correctly. I.e. did they state the debt was assigned and a notice of assignment sent to you? did they say a default notice has been issued? Did they state the account number? what are thr grounds of the claim? etc.

 

They need to have disclosed grounds for action. It's not enough to say "The defendant owes me £343.53 on a credit agreement, and I want him to pay up".

 

It needs to be something like " The defendant opened an account number XXX with CREDITOR on DATE, an express term of which requires regular monthly payments. The defendant defaulted on these payments starting on XXTh , and CREDITOR/DCA sent the claimant a default notice under the consumer credit act 1974 on Xth. The defendant failed to rectify the breach within the required timeframe. CREDITOR assigned the debt to DCA on XXXth, this assignment being notified to the defendant in writing. The claimant claims outstanding monies due under the agreement in the amount of XXX, with costs of XXX and contractual interest to the day of judgement."

 

If they didn't write something with a level of detail similar to this, their claim is not adequatly particularised.

[stebiz]

1) The Claimant is a limited company which purchases and collects (on its own behalf) consumer receivables, including credit card debt................................etc

 

2) On or (left blank because they don't know) entered into an agreement (ehich is refered in these particulars as 'the Credit Agreement) with MBNA Europe Bank Ltd etc

 

3) By the 16th October 2001 the Defendant owed MBNA Europe Bank Limited the Sum of £3,493.97 under the credit agreement.

 

4) By an agreement in writing (hereafter referred to as the assignment) dated 16th October 2001 the Claimant purchased from MBNA Europe Bank Ltd the benefits of the right to recover all monies due under the Credit Agreement (what credit agreement).

 

5) Pursuant to Section 136 (1) of the Law of Property Act 1925, the claimant notified the Defendant of the Assignment by letter etc etc

 

6) Despite the Notice of assignment and further reminders by telephone/or in writing, the Defendant has failed to pay the balance etc etc

 

7) The sum of £3,463.71

 

8 )The claimant is entitled to claim interest on all the sums due at a rate of 8% per annum pursuant to Section 69 of the County Courts Act 1984 from the date of the Assignment to the date hereof.

 

AND THE CLAIMANT CLAIMS

 

1) The sum of £3,463.71

 

2) £1,494.16 interest, calculated as 1966 days at a rte of blah blah

 

3) Further interest accruing blah blah

 

4) Fixed Costs

 

On my credit file it has a default with MBNA, and the alleged account dated to 1994. The argument is based that they do not have a copy or an enforceable copy of a CCA. If they do I am happy to concede. All I want is a copy of something they allege I signed 13 years ago.

 

 

Stebiz

[stebiz]

i would phone up the court and ask them what the status of the case is.

 

You will need to ammend your defence.Have you recieved a notice of assignment etc for the debt?

 

I would suggest contacting Laiste.

 

p.s., still need the Particulars of Claim... I know it feels like pulling teeth, but I need to know if they even particularised the claim correctly. I.e. did they state the debt was assigned and a notice of assignment sent to you? did they say a default notice has been issued? Did they state the account number? what are thr grounds of the claim? etc.

 

They need to have disclosed grounds for action. It's not enough to say "The defendant owes me £343.53 on a credit agreement, and I want him to pay up".

 

It needs to be something like " The defendant opened an account number XXX with CREDITOR on DATE, an express term of which requires regular monthly payments. The defendant defaulted on these payments starting on XXTh , and CREDITOR/DCA sent the claimant a default notice under the consumer credit act 1974 on Xth. The defendant failed to rectify the breach within the required timeframe. CREDITOR assigned the debt to DCA on XXXth, this assignment being notified to the defendant in writing. The claimant claims outstanding monies due under the agreement in the amount of XXX, with costs of XXX and contractual interest to the day of judgement."

 

If they didn't write something with a level of detail similar to this, their claim is not adequatly particularised.

 

They have requested a one month settlement on their allocation questionnaire. This is dated 4th May 2007 but was lodged with the court on/around 28th June 2007. Is it too late to send a more detailed defence to both court and claimant.

 

Cheers

Stebiz

[bed32]

Could you apply to the court for the claim to be struck out on the grounds of there being no chance of it succeeding without a CCA?

[stebiz]

Could you apply to the court for the claim to be struck out on the grounds of there being no chance of it succeeding without a CCA?

 

That sounds like a good idea. Do others agree?? The court were on the verge og striking it out until the last minute when they submitted an Allocation Questionnaire, dated 4th May on or around the 28th June (according to the court)

 

Stebiz

[stebiz]

I'm looking at their Reply to defence which is dated 20th April, which they sent along with a copy of the AO dated 4th May, but received last week .

 

Could I perhaps issue a reply to their 'reply to the defence' which they sent me and the court??

 

Stebiz

[tomterm8]

In the Matter of XXX vs Stebiz

 

Case No XXX

 

In the (COURT NAME)

 

 

 

 

 

 

 

The Court Manager

Court Address

 

Date

 

Your Address

 

Dear Sir / madam,

 

I refer to the matter of a recent allocation questionnaire served upon me on the (DATE YOU RECEIVED IT), dated (DATE THEY SAY ON LETTER), but postmarked (DATE POSTMARKED).

 

I note in that allocation questionnaire they state ‘'The defendant has provided no details of the defence' and that 'The defendant has not previously disputed the account....'

 

I regret that I am embarrassed in pleeding my defence, since the claimant has failed to particularise information vital to the case in its claim, in that:

 

1. It has not disclosed the date of the agreement, the account number, the nature or time of any breach, the date and nature of any default notice issued or stated that any opportunity to rectify any alleged breech was given before the alleged account was terminated

2. It has not explained the way it reached the principal, whether this principal includes interest or charges, and on what basis such interest or charges are due.

3. it has not provided any other information in relation to the account.

 

It seems that for some reason the claimant failed to post their allocation questionnaire at the proper time, and that this issue has dragged on unnecessarily as a result.

 

I have given the claimant more than ample opportunity to furnish a true copy of the executed credit agreement, and yet after three months it has still not disclosed this information.

 

I also note that the claimant never sent me proper notice before action, or gave me the opportunity to settle this matter amicably before issuing the court claim, and that I still need further information to investigate this matter, this including:

 

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records the claimant holds on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account for the life of the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

c. Where there has beenany event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that the claimant has a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom the claimant have disclosed my personal data and a summary of the nature of the information the claimant has disclosed.

 

3. Any other documents the claimant seeks to rely on in court.

4. Clarification of the date the claimant acquired the debt, what organisation it acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

 

In order to particularise my defence in full.

 

I hope that this letter clarifies my position, and explains why I have issued such a brief defence.

 

Yours Sincerely,

 

XXX.

[tomterm8]

Don't sign it.. type your name. Change setails as appropriate, Fax a copy to the claimants soliciter, and send it special delivery to the court on the allocation questionaire.

 

Should make life a little more interesting on their side:)

[stebiz]

WOW.......that is some bl**dy reply. Fantastic. I did PM Laiste as suggested but I think even somebody as respected as him/her would have difficulty putting a better letter together, in the circumstances.

 

I'm off work Monday so I will get the letter dne then and sent recorded. Do you think it would be wise to send a copy toLink Financial too.

 

I really really appreciate your help on this.

 

Stebiz

[stebiz]

Don't sign it.. type your name. Change setails as appropriate, Fax a copy to the claimants soliciter, and send it special delivery to the court on the allocation questionaire.

 

Should make life a little more interesting on their side:)

 

I was writing my reply whilst you were doing yours, so ignore what I said about sending to Link. I'll do as you suggest.

 

Stebiz

[stebiz]

I was writing my reply whilst you were doing yours, so ignore what I said about sending to Link. I'll do as you suggest.

 

Stebiz

 

Oh I've just checked. They are representing themselves.

 

Stebiz

[tomterm8]

WOW.......that is some bl**dy reply. Fantastic. I did PM Laiste as suggested but I think even somebody as respected as him/her would have difficulty putting a better letter together, in the circumstances.

 

I'm off work Monday so I will get the letter dne then and sent recorded. Do you think it would be wise to send a copy toLink Financial too.

 

I really really appreciate your help on this.

 

Stebiz

 

Send it SPECIAL DELIVERY. Recorded isn't guaranteed delivery, and it can take up to 15 days to get there.

 

I would fax or e-mail whoever it says in the contact information:)

[stebiz]

Send it SPECIAL DELIVERY. Recorded isn't guaranteed delivery, and it can take up to 15 days to get there.

 

I would fax or e-mail whoever it says in the contact information:)

 

Okay I will do.

 

I feel a lot better now.

 

Stebiz

[stebiz]

Well the letter was sent today by Special Delivery along with a copy to Link. It will be 4 months on the 22nd since Link Financial issued a summons on an account they bought off MBNA and I am still awaiting the CCA.

 

It is also 8 days into asking for a SAR.

 

Stebiz