Link MBNA Claim Urgent Help needed please!

**pt2537** · 10th March 2011, 17:06:PM

Re: Link MBNA Claim Urgent Help needed please!

Have a read of this

http://www.bailii.org/ew/cases/EWHC/...e/2011/B3.html

**gforce2k** · 11th March 2011, 10:34:AM

Re: Link MBNA Claim Urgent Help needed please!

Thanks pt2537,
I've looked over the judgment.
lot to take in and a little heavy going but i think the DN/assignment dates may have merit, and also i can mention the telephone harassment.
unfortunately with the lack of SAR i don't have all their calls listed.

I do everything ever sent to me including marketing bumf with all pages notated with the date of receipt so hopefully the DN receipt date will be seen as credible by the judge making it arguably invalid?

what other things should be in a DN to make it valid?

Again, if i can somehow get an extension allowing me to cpr & sar that would be my preference.
if i put an n244 in today by fax that may work but only if the right wording/valid reasons for extension - if anyone can advise that i can do that straight away.
thanks.
gf2k

**pt2537** · 11th March 2011, 11:06:AM

Re: Link MBNA Claim Urgent Help needed please!

Originally posted by gforce2k View Post

Thanks pt2537,
I've looked over the judgment.
lot to take in and a little heavy going but i think the DN/assignment dates may have merit, and also i can mention the telephone harassment.
unfortunately with the lack of SAR i don't have all their calls listed.

I do everything ever sent to me including marketing bumf with all pages notated with the date of receipt so hopefully the DN receipt date will be seen as credible by the judge making it arguably invalid?

what other things should be in a DN to make it valid?

Again, if i can somehow get an extension allowing me to cpr & sar that would be my preference.
if i put an n244 in today by fax that may work but only if the right wording/valid reasons for extension - if anyone can advise that i can do that straight away.
thanks.
gf2k

I think the Harrison case gives you the credible argument on the Default notice

It is rife within MBNA it seems for them to use second class post for their default notices and thus it leaves them invalid

Dont forget in Harrison ( i have the MBNA witness statement) they said "MBNA never used second class post" and that our client was wrong, well they had to swallow them words PDQ

In respect of your application, i am sorry i do not have the spare time to go through it now with you, i am sitting on a heavy case load at present.

**gforce2k** · 11th March 2011, 12:08:PM

Re: Link MBNA Claim Urgent Help needed please!

thanks again pt2537,
so do i just refer to the harrison case siting the invalid DN as my entire defence or should I 'tag' it somehow to a standard template 'embarrassed defence' along with mention of harassment?

either way do you believe this will be enough to win or should i try the extension route and request cpr/sar?

if the latter I realise you're very busy so I'll do my best to put together an application an post it online in the next 2-3 hours.
all i'd ask is if you could advise any last minute pointers before faxing, it would be much appreciated.

thanks,
gf2k

**gforce2k** · 17th March 2011, 18:19:PM

Re: Link MBNA Claim Urgent Help needed please!

Aaaargh!
Just opened the pdf file I submitted for my OH to copy and paste the defence text in this post and was shocked to find a MASSIVE MISTAKE!!!
The defence says NEXT RETAIL
I had originally changed it to LINK and MBNA!, all i can think of is that it happened when shorten the text again for the umpteenth time I re-copied from the source document (an old Next defence) and repasted it without changing the names. :mad2:

HELP! what do i do? send in a letter begging the court's forgiveness, pressed the wrong button etc?

This is what was submitted (can't believe i didn't notice it until now!)
------------------------------------------------------------------------------------------------
1. I XXXX XXXX make the following statement as my defence to the claim made by NEXT RETAIL LIMITED

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

4. The claimants' particulars of claims are embarrassing to the defendant as the claimant's statement of case is insufficiently
particularised and does not comply with CPR part 16. In addition the following documents that the claimant cites in the Particulars of Claim have not been served attached to the claim form:
a) A copy of the purported written agreement.
b) A copy of the purported Default Notice.
c) A copy of the purported Notice of Assignment.

5. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet

Credit account
6. The account referred to relates originally to a NEXT catalogue account and furthermore is classed as running-account credit as defined within section 10 (1)(a) Consumer Credit act 1974 which states inter alia
(a) running-account credit is a facility under a personal credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded, and

7. Therefore, based upon the claimant's particulars of claim, the claimant would appear to be trying to circumvent the regulation of the Consumer Credit Act 1974 under which this account type is governed.

8. The Consumer Credit Act 1974 requires that where credit is provided by a creditor to a debtor, there must be an agreement between parties containing the prescribed terms as set out in section 60(1) of the consumer credit act 1974 and signed in the prescribed manner as laid out in section 61(1) (a) Consumer credit act 1974

9. Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court

10. The Claimant is therefore put to strict proof that such agreement exists
Consequences of Non Disclosure of the agreement

11. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil
Procedure Rules I have not yet had the opportunity to assess if the documentation the claimant would need to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point
11 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

13. With regards to the Authority cited in point 12, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

The default notice
14. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist, there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1)conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

15. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

16. Notwithstanding point 15, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the
Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

17. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management
Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

Conclusion
18. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's
statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

19. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

20. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information
required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to
investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I
believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act.
The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided.
------------------------------------------------------------------------------------------------

What a muppet! please tell me I haven't completely screwed this up irreparably!

**pt2537** · 17th March 2011, 18:32:PM

Re: Link MBNA Claim Urgent Help needed please!

That is an old old old defence from before the Carey Judgment was handed down.

To say it is out of date is an understatement

You really need to amend urgently IMHO

If you have not had disclosure of the agreement and have asked for it under CPR 31.14 then id consider an application and including the leave to amend

**gforce2k** · 17th March 2011, 20:32:PM

Re: Link MBNA Claim Urgent Help needed please!

Thanks again PT,
Disclosure
No I've not had a disclosure from Link and have not asked for it under CPR 31.14 because I thought I was too late and the defence would cover it.

I'm obviously very out of date, the last time i went through this was 2 years ago at least with the Next defence, which ended up with their claim being struck out so I thought this would work at least as a holding defence & to request docs.

Amend
Is there a template defence you could advise when no CPR or SAR requests have been made which helps me request disclosure of the relevant documents mentioned in the POC or perhaps requests an extension so that CPR/SAR can be made?

OR

Even though I don't 'officially' have these docs (not disclosed) do I dive in and copy the court on the docs I have posted on this thread mentioning what I believe is dodgy/uncompliant (plain english/with legal references?)?

The only points I've been able to come up with seem to be:
- Agreement (bad copy of application form, some parts illegible)
- DN from MBNA (date arrived written on top by me leaves less than 14 days to remedy date)
- NOA (issued by Link before MBNA DN remedy date) - not sure how important this is
- excessive calls/harassment
- ?

Application
So if I understand you correctly I should on make the application if I have already sent a CPR31.14 request?

Stupid question
It seems either way tomorrow morning I should:
- CPR 31.14 to Link (or is it CPR 31.18)?
- SAR to MBNA? (I know this 40 days...)
- too late to ask Link for an extension?

Thanks GF2k

**gforce2k** · 17th March 2011, 20:56:PM

Re: Link MBNA Claim Urgent Help needed please!

btw...
Just re-read the POC, actually says "a default was registered.", doesn't actually say 'Default Notice' or even 'Notice of Default'.
Is this important?
- good (i.e. POC non-compliant?)
- bad (i.e. DN not specifically listed/mentioned in the POC so can't request it?)

**Angry Cat** · 17th March 2011, 23:52:PM

Re: Link MBNA Claim Urgent Help needed please!

subbing

**gforce2k** · 17th March 2011, 23:59:PM

Re: Link MBNA Claim Urgent Help needed please!

thanks angry cat
any thoughts re the cpr and sar are there particular letters you can point me to for posting tomorrow morning?

the harrison judgment it seems very similar to my situation which makes me feel more positive - faulty dn, early NOA, no contract with application, harassment - but none of these individually seemed to wow the judge though they cumulatively worked.
I need to somehow amend including all of this and also requesting the documents or at least time for the cpr and sar to be answered/defaulted - unsure of best way though and I can't afford to get it wrong again.

These are the areas that seem arguable though again any addition welcome:
- Agreement (bad copy of application form, some parts illegible)
- lack of agreement with application form (not sure what cpr this contravenes)
- DN from MBNA (date arrived written on top by me leaves less than 14 days to remedy date)
- NOA issued by Link before MBNA DN remedy date (not sure how important this is or what rule applies)
- excessive calls/harassment from mbna (have a partial log but would obviously be better with the SAR response)

I'd like to incorporate everything into a defence with legal references like harrison v link and making proper reference to each relevant procedural rule.

or is it best to keep it simple? just as i've written here in plain english as defendant in person? (actually on behalf of my OH)?

need to fire of an n244 amended defence urgently so court has it first thing so any last minute guidance welcome.

also best templates for cpr 31.14 (or 18?) and SAR?

thanks gf2k

**gforce2k** · 18th March 2011, 02:03:AM

Re: Link MBNA Claim Urgent Help needed please!

Thanks again everyone,
I'll post a defence as soon as I can.

In the meantime will this SAR do for MBNA tomorrow?

Data Controller
MBNA Europe Bank Limited
Chester Business Park
Chester
CH4 9FB

17th March 2010 (should I put an earlier date?)

Section 7 - Data Protection Act 1998
Subject Access Request

NAME: XXXX XXXXX
ADDRESS: XX XXXXXXXXX XXXX....
ACCOUNT: (is this necessary?)

Dear Sir/Madam,

I formally request that you forward me a true record of any Data held by your organisation relating to myself for any and all accounts held currently or in the past with your company.

Please supply me with all data that you hold on me.
This includes in particular, but is not limited to, the following:-

1. The original signed, executed credit agreement/s and any terms and conditions that applied to the account/s at the time of default and at the time the account/s was/were opened.

2. Where there has been any 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 in relation to my account or any former account held with your organisation.

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

4. Documents relating to any insurance added to the account/s, including the insurance contract and terms and conditions, date/s they were/ it was added and deleted. (if applicable).

5. Details of any collection charges added to the account/s; specifically, the date they were/it was levied, the amount of the charge, a detailed financial breakdown of how the charge was/charges were calculated, and what the charge covers/charges cover.

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

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

8. A list of third party agencies to which you have disclosed my personal data and a summary of the nature of the information you have disclosed.

9. Copies of statements for the entire duration of the credit agreement/s.

10. Termination notices

11. Any details of internal and external telephone conversations relating to the account/s.

12. For the avoidance of doubt this should include, but not be limited to:
• All computer screen notes relating to the account/s
• All computer screen notes relating to transactions that have gone through the account/s
• All computer screen notes relating to transactions that have been refused or dishonoured relating to the account/s
• All Internal messages or notes relating to the account/s
• All Internal messages or notes relating to transactions that have gone through the account/s
• All Internal messages or notes relating to transactions that have been refused or dishonoured, relating to the account/s
• Full details of managerial decisions whether to pay an item or not, who took the decision and why, relating to the account/s
• All recordings/transcripts of any telephone conversations, whether internal or external, relating to the account/s
• Copies of any e-mail's, or other electronic communication's, whether internal or external, relating to the account/s
• Copies of all letters/correspondence relating to the account/s
• All information relating to litigation that has taken place on the account/s

13. This request should include any Data held for more than 6 years as under the Data Protection Act there is no time limit for information requested.

14. If you do not hold Data for a period longer than 6 years I also request confirmation of this in writing along with your methods used for disposal of such information to comply with the Data Protection Act stating the name and contact information of your registered Data Controller and Code Compliance Officer.

PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec)

You are reminded that you are obliged to supply all the above documents in line with the Information Commissioners Technical Guidance update (Dated August 2007)

I enclose the statutory maximum fee of £10. Please note these funds should not be used for any other purpose.

You have 40 days from receipt of this request in which to return to me the information requested, securely and in legible condition.

Please note that the above address is the one registered with your organisation and which you have previously found to be acceptable. However if there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return.

Yours faithfully,

(Signed with signature crossed through OR Signed using a script font as usual?)

thanks gf2k

**pt2537** · 18th March 2011, 08:11:AM

Re: Link MBNA Claim Urgent Help needed please!

if the above is a data subject access request then you are not entitled to some of the stuff you are asking for under s7 DPA 1998

**pt2537** · 18th March 2011, 08:31:AM

Re: Link MBNA Claim Urgent Help needed please!

Ok just a pointer, but get "template" defences out of your head.

Everyone has different methods, different firms will work different ways etc, but my approach to a claim is not to use a template but to plead each defence on its own merits.

you need to answer their claim against you, you need to highlight any failings, such as a breach of s78(1) and the reasons why and also things like Default notices and why they are not compliant etc

**Angry Cat** · 18th March 2011, 10:01:AM

Re: Link MBNA Claim Urgent Help needed please!

You need to amend your defence and;
make a Part 31.14 request to Link:
http://www.justice.gov.uk/civil/proc...rts/part31.htm

Link MBNA Claim Urgent Help needed please!

Link MBNA Claim Urgent Help needed please!

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