Thread: MBNA Court Action

Long story and am shaking as I write this, head been buried in sand for such a long time and still is. Owe MBNA approx 12,000 and not been able to pay since around early 2007. Ignored them at first then found this site and sent them cca request got a repsonse (which I am trying to figure out how to post). Been served with court papers which need to be submitted by 24th December (merry christmas) and need help. Would like to be able to defed but not sure what to do next. Can anyone help please

Sorry just looked at my post and realised in had typed the wrong date its been since 2006...................

Am usually a very calm and in control person but not coping very well at the moment and I just realised I have not given any real background to this story. CC was with MBNA taken out in 2002 stopped paying late 2006 due to unemployment and various other reasons. Was passed to Link who are the ones issued the court papers on behalf of MBNA. I have no idea if DN was issued but think it probably was. I have spent all day trying to get images on to photobucket and will post copy of what they sent after request for cca. I have read and re read loads of this site but mind just feels as though it is going to explode sometimes and would really appreciate some advice on what to do next.
Thanks

I have got all the images loaded on to photobucket but cant seem to attach them here?

Its hard for anyone to give an opinion without being able to see what is in the relevant documents. If you have got the scans on photobucket, then copy the web address for photobucket on to a post here. People can then access the documents there. Dont forget to take off/ conceal anything that might make them as identifiable as you (most obviously name and address).
Couple of instant thoughts, wilthout having sight of the documents,

1. do you know if Link own the debt, or are they acting on behalf of MBNA? Sometimes they fudge this
2. if you have just being "playing dead" all this time and not replying to their threatograms, this will encourage them to move to court action. It really doesnt matter if they have the necessary documents to make their claim enforceable. All a court can do is act on the evidence put before them (though they dont always do that very well imo ), but, to take a worst case example, if a lender puts an action into court saying that they are owed £x by a debtor, and the debtor puts in no defence, then the court really can only issue the order requested. So, if we can help you to mount a decent defence - and what can be done, depends on what is in them documents - we might yet surprise them! If we do, dont be surprised if it never gets to court.

Please try to get the documents up as soon as you can - the url in the browser address copied into a post here will be fine. ;-)

Hi Morag

Can you post up the Summons and the application - remove any personal details.

I assume that this is an ordinary cause summons, given the sum you state?

mos stuff :: MBNA App form picture by moraghh - Photobucket

Image hosting, free photo sharing & video sharing at Photobucket

Hi all and many thanks for the replies, unfortunately i have had no internet access all weekend. I hope I have attached what they sent in response to a cca request.

The second link only leads to some corporate stuff about Photobucket. The first to what looks to me like no more than an application form which is totally lacking any prescribed terms. Was this ALL they sent? Was there no more came with what you have posted that contained your signature? If not, then I think your defence should focus on any agreement being improperly executed.
Section 61 of the Consumer Credit Act says
"61.—(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 or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible."
OK so what does that mean? A wee while ago a much more informed CAGer than me, Vint, posted this, which is from Consumer Law by John Keith Mcleod , barrister, professor of law, 2002 Edition,
"To clarify concerning 61(a) of the CCA 1974: This section clearly requires that a regulated agreement including a credit token agreement must comply with the following requirements;
1. it must be in the prescribed form as to the Agreement Regulations.
2. On the SAME side as the signatures, the document itself must contain the terms prescribed in the agreement regulations (reg 6(1)): the credit limit, the rate of interest and a term stating how the financial obligations of the debtor is discharged and these must be stated together as a whole that will ensure that the larger list is included in the actual agreement rather than any document referred to in it. The regulation makes it clear that the absence of these terms takes an agreement outside the dispensing power of the court.
Now to explain what S61(b) means: The document embodies all the terms of the agreement, other than the implied terms. This section requires that the regulated agreement contains or refers to all the express terms of the agreement ( NOT THE PRESCRIBED TERMS!!) the T&C's." ENDS
Now to go further: This is called the required terms and it is these terms (and NOT the PRESCRIBED TERMS) that are what is referred to on the NON-SIGNATURE side (the reverse) this is to COMPLY with S.189(4) 'embodies' the terms required by the Agreement regulations so that they must either be in the agreement OR in adocument referred to in it.
So the PRESCRIBED TERMS MUST BE ON THE SAME SIDE AS THE SIGNATURES. If the agreement refers to anything 'overleaf' then it is referring to basically T&C's." ENDS
So what does that mean? Well if the learned Prof is right the document containing your signature should include the prescribed terms - these are the rate(s) of interest; credit limit (or how it will be worked out/ notified to you) and the repayment arrangements. There is clearly none of this on the document that you have posted.
The other sections of the Consumer Credit Act you will need are

1. Section 65.—(1) which says that "An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.". So since there the prescribed terms are missing from the document they have sent you, your defence could be that the agreement is improperly executed. Therefore you are at the mercy of the Court. Or are you, because we then move on to
   
2. Section 127 paragraph (3) which says "The court shall not make an enforcement order under ction 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)." In other words because they couldnt get section 61 right, MBNA cannot expect the court to enforce the agreement because the court doesn't have the authority in law to do this. I dont know if you would want to throw this in as well, but the original author of the 1974 Act, Francis Bennion is quoted as saying re section 127 that "As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed." It might be important to quote this to demonstrate the intention of Parliament in legislating on this.
   

Put very briefly, your defence could be that the agreement supplied to you by MBNA as a TRUE copy fails to include any prescribed terms and is thus improperly executed (s65) in a way that the court is unable to enforce (s127).
What MBNA will claim in response is that you were informed of the prescribed terms in the "attached terms and conditions", or some other form of words. As you will see from the quote, this isn't enough - "PRESCRIBED TERMS MUST BE ON THE SAME SIDE AS THE SIGNATURES".
As for form of defence, I note from the thread that you have been fortunate in that Monty has happened by. He is the man for the form of legal defences (he was a big help to me when I was in the same position as you with another lender. If its any help you can find this at http://www.consumeractiongroup.co.uk...-papers-m.html. Its not a fantastically long thread - only about three pages - but we start to discuss defences on page 2. It may give you some insights into what you have to do. But Monty is much stronger on this than I).
To finish, some questions for you

1. as above - is this one document ALL they sent you? There was nothing else? Btw, there may well not be - just checking on what they might rely on in court.
   
2. I noticed that the document includes a reference to Link. Who owns the debt? Is it still MBNA and Link are acting on their behalf? Or have MBNA sold the debt to them?

Thanks for your reply, they sent t &c.s which were photocopied onto the back of this form but they could be just that. I will try and post it up again.

Image hosting, free photo sharing & video sharing at Photobucket

Try again!

It appears that Link are acting on behalf of MBNA and yes that was all they sent one page application form on one side and t &c on the other as above.

Thanks

Well done to you and the other experts on this site. As I said before I am normally the one taking charge and sorting things out for everybody else but since health and family problems a couple of years ago, confidence seems to have taken a knock and "ostrich" behaviour seemed easier........I am really trying not to panic and reading stories likes yours makes me feel just a little bit braver.

Many thanks Ida, its a 2002 one and like it says in the library there is a reference to point 11 but no point 11 on the back although there is my signature on the front.

I would follow up Ida's links. Some of what is there will be of no relevance at all to your case, but some of it will.
On the other hand, as you have to put in your defence by no later than 24th December (Thursday) you dont have a lot of time (and I wouldnt rely on "closing time" being the same that day as normally). I would actually be inclined to get the defence in by no later than Wednesday just to be on the safe side (or if you just miss Wednesday, you will be a in a good position to get it in first thing Thursday. Remember too you will need to get a copy of the defence to whoever is representing Link/ MBNA as well and not just the court. I think you will have to hand deliver this (which is probably always best).
Re the T&Cs (best to use the original link and work through the photobucket album) they look a bit odd to me as the signature document is portrait, while the T&Cs are landscape. Is it just me, or is that a strange thing to do? The defence I sketched out before is basically saying that the prescribed terms arent on the signature document. If I am right and the T&Cs and sig document dont belong together then this would strengthen the argument.
The court summons looks like the one that I got from M&S, so the process would be similar - though the argument very different.

Just another thought on the application form, I was self employed in 2002 and the form was completed by a "promotion person" at glasgow airport. the boxes for PPI have both been ticked as self employed and employed. Dont know if it makes any difference.
Thanks again

Excuse me for being a bit thick but I have to put the full defence in by Thursday not just form 07 together with £80?

Sorry Seriously Fed Up, to answer your question yes the front page is a full application form and the back where the t & c are is about a third of the page.