OP, Vic and Seq - would you take a look at this to see what you think as a possible way forward please?

 

Dear Sir,

 

I wrote to you in early December 2010 with a CCA request, enclosing the statutory payment as required. I note the letter was signed for by yourselves the following day. As I am sure you are aware under The Consumer Credit Act 1974 Section 78 (1) states:

 

78 Duty to give information to debtor under running-account credit agreement.

 

(1)The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a)the state of the account, and

 

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

The same section, subsection 6 states:

 

(6)If the creditor under an agreement fails to comply with subsection (1)—

 

(a)he is not entitled, while the default continues, to enforce the agreement;

 

To date I have received no reply whatsoever to my CCA request, and so I challenge the validity of your entitlement to place the account into default, as you did on 10 January 2011, as until such time as a copy of my agreement is received you are not lawfully entitled to take any further enforcement action on this account whatsoever.

 

I would like you also to take note therefore that this letter serves as an additional formal request under the Consumer Protection from Unfair Trading Regulations (CPUTR), 2008 for written confirmation as to whether MBNA currently hold or have ever held a properly executed Consumer Credit Agreement in their possession pertaining to myself and if not, to kindly confirm so in writing.

 

If you do hold such an agreement it should be sent to me, along with the other relevant documents mentioned, in response to this letter in order to comply with my original request made in early December.

 

In your Default Notice served under Section 87(1) of the CCA 1974 dated 10 January 2011 you state I have to pay all the arrears by 31.1.11 to remedy this breach. Bearing in mind the situation as it currently stands and outlined in detail above, I would respectfully suggest that this comment already places you in clear breach of CPUTR 2008 Part Two Regulation 5(1) and 5(2), even if the default notice had been lawfully served. I trust therefore that no further action will be taken until such time as the issues raised in this letter are resolved.

 

I look forward to your reply within 14 days of the date of this letter.

 

Yours faithfully,

Hi Tingy,

Thanks for your comprehensive letter reply.

Given that Monday is 31.1.11, does anybody have the email of someone in authority (or the best person to deal with this matter) at MBNA that I could send the letter to?

I don't want to risk sending them a registered letter on Monday as they won't get it until Tuesday at the earliest and I don't want them to use the excuse that they have not heard from me since 31.12.11.

Thanks,

DemandFairness

This is the personal e-mail of the Chief Executive Officer (CEO), so you couldn't send it to anyone higher. Bear in mind though that you are claiming their Default Notice is invalid which automatically invalidates the Jan 31st date.

[email protected]

Hi Tingy,

Thanks for the email.

DemandFairness

Morning Mr and Mrs DF,

I've outlined my input below in red purely to differentiate it from your writing. Apologies if it looks official. I actually just tried to post this one and it all vanished!

Hi Tingy,

Thanks for your reply. Sorry for not replying earlier today as the sleepless nights and high stress made me ill today. Please, please try not to get too worried and stressed by this. At the end of the day you're doing all you can, so can do nothing more.

The £2500 is the arrears but the total including arrears is about £17,000 and that is what they say we will have to pay immediately as they will terminate the agreement if we don't pay the arrears before 31.1.11.They cannot make you pay what you haven't got. If they terminate the agreement, the agreement ceases to exist, so although you have a debt to repay you then negotiate repayment terms which you can afford and sustain. Don't forget though that we are challenging the legality of their Default Notice, so the date of 31.1.11 may not be at all relevant.

1) We didn't pay anything in December, as no CCA. You suggested we continue to pay what we can reasonably afford but if we rang them to pay the amount we recently were paying, can they refuse it as it wouldn't be the £2500? Do not speak to them on the phone ever about this again. Refuse to go through security, don't answer the call, whatever, but don't talk to them. The reason I say this is they can agree to something on the phone and there is no evidence of it having been agreed. Everything must be in writing for the avoidance of doubt. As regards payments, MBNA will have an automated telephone payment system or an online payment system where you can make payments. Use these as they won't refuse your payment and you don't have to speak to anyone. There are times when stopping to pay is the right thing to do. My reasoning here is that you want to be showing goodwill (even when you have every legal right not to be apying) as we want the bank on our side as much as possible, and we certainy want you to be seen to be doing everything you reasonably can should it ever go to court.

2) Tingy, you made me aware of the benefit of the inflation devaluation of the charging order which we had not thought of before. So thank you and is there a link to the pros and cons of having a charging order? No link I know of. The cons are pretty obvious I think. The benefits I see are that they have to wait a long time for their money, by which time it may only be worth a few pounds. It also puts you in a strong position if you are ever in a position to be able to negotiate a Full and Final settlement.

3) We are particularly worried whether our other creditors would raise our interest rates because of the charging order. Is that likely and would the £17,000 still increase at their high interest rate or the 8% statutory interest rate or remain at £17,000 due to no interest, as it is now a secured debt of being a charging order? Have a read of this: http://www.insolvencyhelpline.co.uk/debt_factsheets/charging_orders_in_the_county_court.php You will see it states clearly that for agreements that were regulated under the CCA, no interest can be charged if a CO is granted.

4) Now that you know the debt is about £17,000, does that mean we would be forced to sell our house if they wanted that? I'm not 100% sure. My understanding is it means they could ask a judge to make you sell your house, but I think this is highly unlikely and judges rarely take this action.

5) We don't have a scanner but the DN seems to have the points you mentioned through a link you posted. However, we don't know if the arrears are correct as we didn't get all our monthly statements from them. Make a note of any statements you did not receive. Again I would imagine this goes against their terms and conditions.

Thanks

DemandFairness

Back to black - it's friendlier! I hope this has answered your questions. I know it's a stressful time. Believe me, I really do know - I've been there and actually lost my house! I'm still alive and kicking and happier than I was before. I suspect you're a bit like me in that even at this very early stage, in your mind the CO has been awarded, the debts gone up and up, you've been made bankrupt and your living out on the streets. It won't happen! You are doing all you can, so try to put this to a side and get on with your lives. Yes, it's easier said than done, but there's nothing more you can do at the moment, so please try not to worry so much.

Vic and Seq - do you think we should be thinking of sending MBNA a SAR yet, or do we just wait for the moment and see their response?

Forced sales are quite rare. http://news.bbc.co.uk/1/hi/business/8500379.stm

Hi Caro,

Thanks for the news link from the BBC.

DemandFairness

Hi Tingy,

Thanks for answering all my questions in your post #29 and your supportive messages throughout. We really do appreciate it!

Also, I think the red was very useful as you can see the answers immediately and still see the original questions there and then. (I have been using bold for urgent or important questions but perhaps colour would stand out more, if others here don't mind?)

BTW, your link above in point 3 doesn't work. So I did a search for charging orders at the site you mention and found the article.

Lots to read and decide now.

DemandFairness

This might be helpful too if you haven't seen it already.http://www.consumeractiongroup.co.uk/forum/showthread.php?203298

Caro,

Thanks for sending me the Charging Order thread which I did not know about.

DF

Subbing

Hi Caro,

 

I tried to find the MBNA documents library but I could not find it. Do you have the link to the MBNA sample documents/library?

 

Thanks,

DemandJustice

Sorry, the MBNA document library is in cyber limbo at the moment. As soon as it is restored, I will let you know.

Hi

Welcome to The Consumer Action Group.

I am just letting you know that as you haven't had any replies to your post yet, it might be better if you post your message again in an appropriate sub-forum. You will get lots of help there.

Also take some time to read around the forum and get used to the layout. It is a big forum and takes a lot of getting used to.

Once you start to find your way, you will soon realise that it is fairly easy to get round and to get the help you need.

It can be bit confusing at first.

Hi everyone,

Apologies for not writing earlier as I thought we might be given an extension to today's date for submitting our amended Setting Aside Application with all our documents as we only received the order late on 28.1.15 and we also had to get the medical letter in support of form N235. Some background:-

We wrote requesting Section 78 of the Consumer Credit Act 1974information from one of my husband's credit card company MBNA in early Dec’10 (and also made a complaint about one of their staff’s conduct and not allowing my husband to close the account and freeze the interest whenever they increased the interest rate). Also, over time they had substantially increased his credit limit without checking on his ability to pay and the fact he had other credit cards with large balances too.

MBNA sent a Default Notice saying if he paid the outstanding arrears by 31.1.11, no default would go on his credit files. So with some juggling of not paying some other credit card companies etc. that month, he paid MBNA the full arrears sum stated by bank debit card on 31.1.11 with the person reassuring him no default record would now go on his file.

When we eventually got their late reply around February’11 for the above S78 request and complaint, they revealed that they had in fact defaulted the account at the end of Dec’10, after our complaint and S78 letters had been received by them! Thus after reading many bad reviews about MBNA online doing similar things and you can’t trust them, we stopped paying them altogether as the damage had presumably been done to the credit file already.

Last year, my husband received a letter from Land Registry saying an Interim Charging Order is on the house but we didn’t know the alleged creditoror their solicitors at all. We thought it must be some kind of phishing letter to steal his identity or bank account details, especially as the County Court for the ICO was listed in Norfolk and we never received any notice of the hearing. We live in London.

When I contacted Kings Lynn to find out how this was possible, I was told that my husband had agreed to pay them by instalment but then didn’t and so there was a CCJ in July 2012! I said we didn’t know this company Arrow Global Guernsey Ltd. (let’s call them Z) nor did we have an opportunity to fin dout about the claim so we could defend it. I was told we didn’t need to be there as the CCJ was done without a hearing at County Court Business Centre in Northampton. But we could transfer the Final Charging Order hearing from KingsLynn to our local court and then apply to set aside the original CCJ when it was listed there.

Unfortunately, due to the stress of Christmas, I was ill and we both were unable to deal with things when we received the listing date just before Xmas.

Anyway, I recovered enough to start deal with things when my child went back to school. I was told by our Law Centre to make an appointment to deliver the Setting Aside Application (SAA). But I just could not get through to the Court until 8.1.15 and the Final Charging Order hearing was 9.1.15.

I was told it was too late to postpone the hearing despite us having problems getting through and being given the wrong advice about an appointment being necessary to hand in the SSA form. But she said if I wrote a full email explaining why we did not hand the SSA form earlier, the grounds to set it aside, if my husband could not attend due to ill health, to ask for permission for me to attend instead in case the FCO still went ahead. Also I had to hand in the SSA form by 4pm that day in order for a judge to consider whether to postpone the FCO hearing.

So after hearing that the FCO may still go ahead, my husband had a panic and anxiety attack and started blaming me. Hence my poor emails and distressed handwriting on the SSA form and I didn’t have time to check it but miraculously, I was able to hand in the form at 4pm.

I signed the Application form N244 as a litigation friend and did my husband’s statement on his behalf as a litigation friend because my husband had started to act and think irrationally and illogically again and he refused to go to the court hearing even though I told him it might mean he automatically loses the case. The idea of attending court also brought on a panic attack.

I also did the Witness Statement as it said a Litigation friend could do that: briefly, the ICO should not have been given, as our address was not used for the CCJ hearing but another address in the North of England! Plus of course we don’t know Z and whether they have a legitimate claim to the debt as we have received no paperwork evidence and Statutory documents from Z, especially as the credit card debt should not have been defaulted without the proper notice. Plus we never had agreed a payment by instalment plan either with MBNAdue to their early defaulting of the account or with Z.

I also put on the form that the judge orders the other side to provide all the documents they used to get a CCJ, if indeed it was them as the Applicant, and all the documents they supplied to get the ICO and then we will provide our evidence later on too.

1) The alleged creditors or their solicitors did not arrive for the 10 mins hearing. So it was about 30 mins later, that the judge saw me only. The Court Usher had told me if it had been us that did not appear, she would have ruled against us after 10-15 mins of delay.

2) The judge would not agree to make an order for an exchange of documents even though I had said that we had received nothing since the alleged creditor (or CCJ Applicant) had the wrong address for the CCJ, as we later found out in a credit report, but used our address for the charging order. (We never received any application form, hearing notice or documents from Kings Lynn either.) The credit report does not state who the Applicant was. Plus we want proof that they are legally entitled to this debt.

3) Nevertheless, the judge did say we had to submit our documents at the same time as when my husband makes an amended SSA, along with either form N235 or adoctor's letter, as I can't be a litigation friend without these apparently. It does seem unfair that we are giving documents before we know what claims the other side has made or will make and what documents they hold, so we can investigate further. That is why I asked for an exchange of documents to be done at the same time.

4) I would like to know if all the above points are against Court Procedures and what we should therefore do? She even asked for the SSA hearing and FCOhearing to be held at the same time and reserved for her if possible, as she seems to want my husband to be there or else she might make him a Ward of the Court of Protection if he does not turn up and he hasn't submitted the N235 or Dr's letter.

5) As the order was long, she told me I didn't have to write it down except for the N235 (Certificate of Suitability) as it would be sent to us.

6) Despite not receiving the written order detailing the above until 28.1.15, I was told that no-one asked the judge to extend the 30.1.15 deadline, despite my previous calls requesting this!

7) Plus I have had problems getting any documents of the actual application form from Northampton Business Centre Court as it was apparently an online application and my court has only recently given me the judgement orders as the only things they have.

8) We recently did a S77-s79 to Arrow’s solicitors Restons but they returned it saying that there is already a CCJ. So they may not know we are having a hour SSA hearing with possibly a FCO hearing too. So does that mean they should provide us with all the requested documents or is this a ground to win an SSA hearing anyway because if they had a legitimate claim, they would provide us with the documents? They must know that the FCO hearing did not go in their favour.

9) The defence we used is a wrongful termination of account when the arrears were paid by the date requested on the DN. Am I correct that if MBNA assigned the debt to Z, irrespective of whether or not we knew it, then Z cannot ask for the outstanding balance due to this wrongful termination?

I would appreciate your input on my above concerns and how we should proceed, especially if we have grounds to win the case.

Thank you in advance.

Hi

You cannot sign court documents for your husband. You are actually a McKenzie friend; a litigation friend is someone who is appointed by the court to assist a child. Not something to worry about for now but going forward he needs to sign things if he is the applicant/witness.

Also, the rules say you aren't allowed to represent your husband outside small claims track. He needs to be there in court with you.

The main criteria for a set aside is that you must convince the judge that your husband has a real prospect of successfully defending the claim. To achieve this you need to explain what your Defence would be. Presumably you are relying on s78 and s89 of the Consumer Credit Act 1974. You should try to have a copy of that with you in court and point the judge towards the relevant provisions.

Its a bit late to say much more than that to be honest. Good luck with today's hearing.

Hi SteamPowered,

Thanks for you reply. Yeah, I did think we were going to get an extension and then when I look at the actual order again, the judge doesn't mention about us actually submitting the documentary evidence with this amended SSA form even though she said that at the last hearing to me. Anyway to be on the safe side, I am enclosing it all even though we still have nothing from the other side.

Thanks again & wish me luck all caggers.

Good luck DF.

Hi, do you know where the Claimant got this address in the north of England from?

Have you or your husband ever lived or owned a property up here?