**WON** Claim Received Incorrect Name

[FlamingParrot]

Re: Claim Received Incorrect Name

That looks fine and if you never received a NoA, then you're right to leave that paragraph in. One comment I have is that I'd move up the paragraph about statute barred, I'd put it as item 6 and re-number the rest. Let's not forget SBd is an absolute defence and it's not something that can be rectified by them, unlike all the other items regarding non-production of documents, I don't think it should be at the very end when it's actually the crux of your defence. :thumb:

[nemesis45]

Re: Claim Received Incorrect Name

Hello again,
Here's what I have for the defence, can someone please check it for me?

1: I received the claim B5AQXXXX from the Northampton County Court Business Centre on 04/07/2015

2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3: This claim appears to be for a Credit Card agreement regulated under the Consumer Credit Act 1974.

4: The Claimants particulars of claim fails to give adequate information to enable me to properly assess my position with regards to the claim.

5. The particulars of claim fail to state when the agreement was entered into.

6. The Claimants statement of case states that the account was assigned from MBNA Europe Bank Ltd to Lowell Portfolio on 30/09/2009. The Defendant does not recall receiving notice of this assignment. [I know I have never received this notice]

7. It is denied that MBNA Europe Bank Ltd served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

8: On the 06/07/2015 I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Bryan Carter Solicitors.
I requested the Claimant provide copies of the:
a)The Agreement
b)The notice of assignment
c)The Default notice

9. Bryan Carter declined to send any of these documents to me. (I requested a them second time on 15/07/2015 and was denied again.)

10. On the 06/07/2015 I sent a formal request for a copy of the original agreement to Lowell Portfolio pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

11. The Claimant has failed to comply with s 78 (1) Consumer Credit Act 1974 and by virtue of s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

12: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but they have declined.

13. Under Civil Procedure Rule 16.5 (4) where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

14. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

16. It is denied that the Claimant is entitled to the relief as claimed or at all.

17. I believe the alleged debt is statute barred as no payment or unequivocal written acknowledgement has been made in 6 years.

Hi, Proceed,

Leave 6 in place.

17. Needs to be at "13/14 so just renumber and you are good to go.!!

nem

[Proceed]

Re: Claim Received Incorrect Name

Hi FlamingParrot

Ah the reason I tagged "SBd" on at the end is I'm not 100% sure about the date the last payment was made. But on the premise MBNA would wait a X months before sending a default and assigning the debt to Lowells on 30/09/09 I think its reasonable to assume I'm probably beyond 6yrs as of date of claim 01/07/15
I am 100% sure that I have never acknowledged either MBNA or Lowells until I sent them the £1 postal order.

However I take your point and also feel it should be moved up.

[Edit] Nem- Just saw your post, slightly different so I suppose as long as its in there is what counts

Thanks again

[nemesis45]

Re: Claim Received Incorrect Name

Hi FlamingParrot

Ah the reason I tagged "SBd" on at the end is I'm not 100% sure about the date the last payment was made. But on the premise MBNA would wait a X months before sending a default and assigning the debt to Lowells on 30/09/09 I think its reasonable to assume I'm probably beyond 6yrs as of date of claim 01/07/15
I am 100% sure that I have never acknowledged either MBNA or Lowells until I sent them the £1 postal order.

However I take your point and also feel it should be moved up.

[Edit] Nem- Just saw your post, slightly different so I suppose as long as its in there is what counts

Thanks again

The status of a debt as Statute Barred is a complete defence on it's own.
If you can find out more on the last payment it would of course be more effective.

nem

[jon1965]

Re: Claim Received Incorrect Name

On the line about statute barred maybe you should tell them where that comes from I.e as per Limitations act .
Same as the NOA , mention the law of property act.

Also so I would agree SB should be further up and not a tag on. For me the place would be somewhere between point 5 and 7. That is either just before or after 6

[Proceed]

Re: Claim Received Incorrect Name

Nem - Thats one of the reasons I needed their documents in the first place. Unfortunately the bank account I had at the time (defaulted) is also closed to me now.

[nemesis45]

Re: Claim Received Incorrect Name

Nem - Thats one of the reasons I needed their documents in the first place. Unfortunately the bank account I had at the time (defaulted) is also closed to me now.

I suspect that the claimant will have the same problem on the payments part.
So what goes in the defence is:

The defendant avers that the alleged debt is statute barred under the provisions of The Limitation Act 1980 .

The Claimant is put to providing unequivocal proof that the alleged debt is not statute barred.

you can also add:

Unless the claimant provides proof that the alleged debt is not statute barred the claim should be struck out.


nem

[Proceed]

Re: Claim Received Incorrect Name

Roger that Nem thanks again

[nemesis45]

Re: Claim Received Incorrect Name

Roger that Nem thanks again

Happy to help.

nem

[FlamingParrot]

Re: Claim Received Incorrect Name

Hi FlamingParrot

Ah the reason I tagged "SBd" on at the end is I'm not 100% sure about the date the last payment was made. But on the premise MBNA would wait a X months before sending a default and assigning the debt to Lowells on 30/09/09 I think its reasonable to assume I'm probably beyond 6yrs as of date of claim 01/07/15
I am 100% sure that I have never acknowledged either MBNA or Lowells until I sent them the £1 postal order.

However I take your point and also feel it should be moved up.

[Edit] Nem- Just saw your post, slightly different so I suppose as long as its in there is what counts

Thanks again

Remember the burden of proof is on the claimant to establish that it is not SBd, it's not up to you to prove it is. The CCA request with £1 was a request for info under s78 of the CCA not an acknowledgment of the debt, just for reference as once a claim has been issued, the limitation clock stops anyway.

The exact location of the item within the defence doesn't make any difference from a legal perspective, the idea is that SBd is a much better argument than not having received documents that they can still send at any time, that's intended as a back-up plan in case they manage to find the last payment date was less than six years before they issued the claim. If you're not able to find out, I wonder how they could do so.

[Proceed]

Re: Claim Received Incorrect Name

Thats useful to know FlamingParrot, thanks again.

Heres what I ended up with..

All the seme except :-

6. The defendant avers that the alleged debt is statute barred
under the provisions of The Limitation Act 1980. The Claimant is
put to providing unequivocal proof that the alleged debt is not
statute barred. Unless the claimant provides proof that the
alleged debt is not statute barred the claim should be struck out.

7. The Claimants statement of case states that the account was
assigned from MBNA Europe Bank Ltd to Lowell Portfolio on
30/09/2009. The Defendant has not received notice of this
assignment.

All other numbers adjusted

Just filling online and I can't think of any reason to counterclaim so on to submit defence

[FlamingParrot]

Re: Claim Received Incorrect Name

The principle is the same as with websites, CVs, newspapers, etc. In newspapers, the more important news are placed "above the line" or "above the fold", on the top part of the paper you see without having to unfold it or turn it over. If you are a recent graduate doing a CV to apply for a job as a designer, you're hardly going to leave the fact that you've got a degree in visual arts, at the bottom of your CV.

People in the legal profession including judges have to read line after line of text every day, if after reading all those points about not receiving documents, etc. they come across a statement saying the debt is SBd, they're bound to think: "why did they mention this before!"

[nemesis45]

Re: Claim Received Incorrect Name

Thats useful to know FlamingParrot, thanks again.

Heres what I ended up with..

All the seme except :-

6. The defendant avers that the alleged debt is statute barred
under the provisions of The Limitation Act 1980. The Claimant is
put to providing unequivocal proof that the alleged debt is not
statute barred. Unless the claimant provides proof that the
alleged debt is not statute barred the claim should be struck out.

7. The Claimants statement of case states that the account was
assigned from MBNA Europe Bank Ltd to Lowell Portfolio on
30/09/2009. The Defendant has not received notice of this
assignment.

All other numbers adjusted

Just filling online and I can't think of any reason to counterclaim so on to submit defence

Good to go!!

nem

[Proceed]

Re: Claim Received Incorrect Name

So here we are again, Received a letter from Carter...

"We are writing to confirm our client's intention to proceed with this matter.

We will shortly send notification to the court but before we do so our client is prepared to enter into negotiations whereby both parties avoid further costs etc. etc.

Please contact our helpful team on 0345....."

Surely, if I enter into any negotiation of this nature I am admitting liability contrary to my defence.

Any advice welcome

[MIKE770]

Re: Claim Received Incorrect Name

usual missive template response , ignore for now! they are begging at this stage!