Court Hearing AGlobal ltd/mbna

bert1007

hi forum, to cut a long story short, its about a claim coming to trial.

As its in court this week a rapid concise help from a legal expert would be very much appreciated, please bear with the post as I tried to get all the most relevant information in here:-

After standard track allocation forms sent and defence files posted via government gateway, plus allocation questionnaire filed earlier this year [standard defence of not having supplied copy of signed c/a to the court etc],

the upshot is, they (well their paralegal is at any case) are going to court and have made a 8 point reply to my defence, stating
amongst many things:

"The claim relates to a regulated credit card agreement which is particularised in the claimants reply to defence dated 11th April 2014. A reconstituted copy is enclosed"

"the defendant failed to respond to a letter before action, served upon him by first class post and a claim was issued through Northampton CCBC , The ccbc issued the claim form and served the defendant with the claim form"

"The Defence effectively amounts to a demand for proof of the Claim by way of request for documentation. Furthermore the defendant issued an undated request for documentation pursuant to s.78 c/a 1974, received to the claimants offices on 20 march 2014. This request was complied with by way of the Reply to defence dated 11 apr 2014, as well as by providing the additional documentation exhibited in the witness statements including the notice of assignment.

"claimant contends that there is more than sufficient evidence before the court to establish that the defendant entered into a ca with mbna, the account was duly assigned to the claimant and the sums claimed are due and owing. In the interest of costs and proportionality the claimant asks the court to enter judgement for the amount claimed as per the particulars of claim together with costs payable forthwith



I may need a bit of help,

1. I sent the c/a request pursuant s77/78 on 5th march 2014 recorded delivery, they received it on 10th march, and in reply to it (as well as returning my 1 pound postal order) they said "we ask you to note that mbna remains the creditor of the agreement. AG is merely the purchaser, accordingly we return your fee"

Did i miss something here? in jan 2012 i have the letter of assignment "we notify you that mbna has assigned all of its respective rights, title and interest w.r.t the amount due to AGG ltd

In my request letter [I forgot to date it but I have the recorded delivery receipt 4th march] i stated
___________
"This letter is a formal request pursuant to s.77/78 of the consumer credit act 1974. I require you to provide me with a true copy of the credit agreement relating to account 540x xxxx xxxx, together with any other documentation the Act requires you to provide.
I expect you to fully comply with this request within the statutory time limit. You are reminded that should you fail to comply with my request the provisions of s.77 will apply.

If it is your view that you are not the creditor, s.175 of the c/a 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor as defined by s.189 If you contend that you purchased the rights but not the duties of any agreement you are reminded that s.189 of the act is clear that an assignment is both right and duties.

your attention is drawn to ss.5(2) 3(b),6 and 7 of the Consumer protection from Unfair Trading

I enclose a postal order in the sum of £1 which is the statutory fee

If you are unable to comply fully and properly with this request you should confirm this in writing at the earliest opportunity and certainly within the statutory time limit for compliance"
_____________

in their first reply to to my cca request together with their initial reply to defence, they say they received it on the 10th march, but in the first witness statement of the paralegal, he says it was received on the 20th march.

a) there is a clear discrepancy of 10 days in the statements of when they got my request.
b) did they not comply with my s.78 request at all.
c) whats the relationship between first reply to defence and 1st witness statement?
1st reply to defence states things like storey v hsbc as case law for striking my defence out, but the first witness statement doesn't. Do one set of claims override the other?

but they are both written by same paralegal

The copied application form from 1996 as part of the reconstituted ca is not something that i recognise because it says "now that you have said yes, you are approved" - i do not recall being asked if i wanted a card, so how can I have said 'yes' as it states in the form?

how do I present this to the judge?

many thanks.
b.

rizla_king

You need to ask on a more legally focused forum.

Try http://www.legalbeagles.info/forums/

sourcrates

First of all im no expert, but, the DCA having been assigned the account should have forwarded on your CCA request to the original creditor, not returned the £1 to you, as regards the credit agreement, some application forms can be agreements, but if its from 1996, it would need to be a signed copy of the original, I don't think a reconstituted version will suffice from this period, it must also contain all prescribed terms applicable to the account within the same document, have you got any legal representation ? or is it just you ? cant help with your other questions im afraid, hope I have helped you.

eyeopener2

Bert, don't hang about with this and get onto legal beagles asap, however what sourcrates says is true but the best legal minds are on that link. Get on and get sorted.

bert1007

hi, got onto it there, . I'll check this thread again in the waiting room tomorrow in case all the eagles are out.

so they should have dealt with my s77 request correctly in a timely manner (which they didn't do)
Will the judge accept this as an argument in my favour?



thanks
b/

Lensman_2

As the purchaser of the debt the carry the rights and responsibilities for it. Including the responsibility for CCA requests.

They (and not MBNA or Joe Bloggs) are outstanding on your request.

However, the bad news is that this prevents them from enforcing the debt. Enforcement happens after the judgement is granted and you default on that judgement.

So technically (and legally) they may be able to get judgement tomorrow. But they can't do anything about it if you don't pay.

I really hope you do better than this. There is a glimmer of hope that they won't turn up if they don't have a compliant CCA. (But don't bet on it).

Lensman_2

You are a litigant in person (LIP) tomorrow. This means you are a legal layman.

You will be best served by giving the judge a high degree of respect. Listen very closely to what he is saying and the directions he gives you.

If the opposition turn up expect some low down, dirty tactics. Do not be shocked or phased even if it feels like they are cheating. You are not required to compete with this. The judge should lend his expertise to help your case (because you are a LIP). Do NOT argue with the judge or the opposition.

But most of all, do not attempt to get in to legal stuff. As above, you are a LIP and the judge should lend you his/her expertise for the legal stuff to balance the scales of justice.

Do not attempt to negotiate with the opposition before the case. They will probably seek you out. Do not trust them. I would probably respectfully decline to talk to them - tell them you are on your way to get a coffee or have a fag or something.

Unless you are in the High Court, expect the environment to be very much like being in a Headmaster's office with a teacher who is prosecuting you. In my case, the desk, books all around and my feeling of deference were all there. (But the collection of canes in the corner were not. LOL). It has to be said that my judge was a lot nicer than my old Headmaster.

Good luck and please let us know how you got on before you open the bottle of wine (etc).

thewhiteavenger

My understanding is that if the s77/78 request has not been complied with (in the judge's opinion) then the claim is stayed at this point, i.e. before judgement.


Further, as this is pre-2007 there is an argument that this should be struck out under s127(3) if there is no evidence of a signed agreement


OFT 1272 summarised this but I'm not sure what the status of that document is now that the OFT is no more.


http://webarchive.nationalarchives.gov.uk/20140402142426/http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

bert1007

well a few cans of beer at least. It felt like losing badly to penalties against germany, Judge saved all my weak shots about s77 s127.3, and let the reconstituted Beckenbauer strikes in again and again...

thanks anyway.

fatbelly

Bloody germans!

I guess that's the beauty of the British legal system. On a different day with a different judge, it could all have been ... different. Bit like all those world cup penalty shootouts that we always lose.

It sounds like the judge considered s77 had been complied with, and that, even though they did not have the original agreement, there would have been one somewhere, probably.