DCA Claimform - MBNA Card debt with No Default Notice **WON WITH COSTS***

[Valdez is Coming]

Way back in 2006, while the account was in dispute, MBNA 'assigned' my account to a DCA without informing me, without sending a default notice and without a termination notice.

DCA then immediately issued a (invalid) default notice, then termination notice, ignored CCA requests for two and half years before sending application form and a set of terms & conditions which they claimed was an enforceable CCA agreement.

No sign of original, then they served a statutory demand which l have applied to be set aside - hearing in late May.

Is this unlawful recision?

Have tried other threads but am not getting many responses to my problem. Really need advice/clarification. Have spent hours working on this but am still confused.

Seem to have them on DN, no original agreement, abuse of process (using insolvency service as a means of debt collection) and possibly unlawful recision but need other opinions pls. HELP PLS!!!

Edited May 9, 2010 by Valdez is Coming
typo

[miss muppet]

Yes Valdez, looks like they have shot themselves in the foot. They might claim in court (thats if they turn up, that they sent it,(Default Notice) in which case you will put them to strict proof of this, i.e. proof of delivery. Have a look at the copy of the Consumer Credit Act 1974 which is in the Statutes library, its best to hone up on all the various sections, have a look at the information supplied on Mollybe's thread, link following, I have posted up the relevant sections of the CCA plus quote of Francis Bennion and also quote from Susan Edwards of the OFT all of which I hope you find helpful.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/188503-being-taken-court-please.html

 

Last couple of posts.

[Valdez is Coming]

Miss Muppett...thanks so much for your reply. I feel l am not getting much help with this very important issue, so yr post is especially welcomed.

 

I am reasonably intelligent and logical and have been trawling the forums, CCA, case law, other threads and have pages of notes and printouts from which to research, prepare and rehearse my appeal for set-aside of SD and l am getting there, l think.

 

But my specific question is this: OC never sent me Default Notice. They then sold or assigned the account to DCA, whose first letter WAS a default notice - no communication, no demand for payment, just a Defaullt Notice (which is also invalid due to inaccurate timescales) - so where do l stand with this?

 

Additionally, there is no notice of assignment, just a letter (2nd class) from DCA telling me this is so. I have long paper trail and all my corres has been by recorded delivery, unlike theirs.

 

I had previously been in serious dispute for many months with OC who wrote giving me 8 WEEKS to continue/respond to the dispute, 15 days before l received DCA's Default Notice.

But if l disclose this, am l not then admitting the debt exists and may be enforceable?

 

I believe l have a strong case, but am worried none the less. Particularly as l have read so many threads about county court judges ignoring statutes and allowing DCAs to take the moral high ground (laughable l know!)

 

Advice very much welcomed - they are going for bankruptcy and l could not face this. My wife is cracking up and, though l am trying to be strong, its getting to me too.

[miss muppet]

Right here's another link where you can see that I totally messed up when defending my daughter's SD but it wasen't the end of the world.

 

I totally know where you are coming from with this but one of the things I learnt at the first awful hearing was that the default has to be in the original creditor's name.

 

If they do turn up and in both our attendances at court, they didn't, you will be able to show the Judge that your account was passed without default or notice of assignment from the OC( they the DCA's write their own copies can you believe using the headed paper from the OC) but you have to have the "goodbye" letter first and you didn't.

 

Now, the other point you are worried about is admitting the debt as you'll see we did this in daughter's case and I did it in my own against MBNA because of the tricky situation of managing to get penalty charges returned but I told the Judge I had paid up to the point I found they hadn't got an enforceable agreement because I did not know my rights under the Consumer Credit Act at that time.

 

The reason all these sections of the CCA are in place and various case laws is to protect ordinary folks such as us who get into difficulty often thro no fault of our own.

 

I do think its better to go to court with moral support, you do have to ask permission of the court clerk first, I was allowed to speak in the second hearing but even if they are just turning the pages for you or pointing something out, its a help. Don't worry Matey I just know you're going to be fine:-

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/151427-miss-muppets-daughter-1st.html

 

And also, crikey you'll think I'm your stalker next:lol: have another look at the link in post 4 as there is some excellent advice from Vint on unlawful recessions.

 

Y'see I just can't leave you alone now:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/207135-stat-demand-arrow-global-5.html

[Valdez is Coming]

Hi Miss Muppet...thanks for yr invaluable info...soumds like you were put through the mill by an outrageous judge initially, but you won in the end....and don't worry about 'stalking' me, l need all the help l can get.

 

Have been away, but am due in court next week and need to get this right.

 

Can you (or anyone else) pls point me to the CCA section which states OC must issue Default Notice before selling/assigning a debt to a DCA?

 

I have found most other relevant info for my set aside appeal but can't find this bit. Thanks again.......Valdez

[Valdez is Coming]

Bump

Can someone pls look at my previous question and advise?

[miss muppet]

Hang on Valdes, been out for the day, the CCA 1974 is in the statutes library, if I don't nod off I'll try and find it!!

 

Hopefully this is what you need but will have more detailed look 2morrow:-

 

6. Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.pdf

 

You might need to look at the 2004 amendment as well Valdez, and also its section 88 of the CCA that refers to default notices, got the latter from VJ's brilliant thread on his battle with HFO - going to have lie down in darkened room now:D

[Valdez is Coming]

OK thanks Miss M.....will have a look at that over a nice glass of red!

I am confident l have a case but still worried about the judge!

Enjoy your lie down!

[colin21958]

Hi Miss Muppet...thanks for yr invaluable info...soumds like you were put through the mill by an outrageous judge initially, but you won in the end....and don't worry about 'stalking' me, l need all the help l can get.

 

Have been away, but am due in court next week and need to get this right.

 

Can you (or anyone else) pls point me to the CCA section which states OC must issue Default Notice before selling/assigning a debt to a DCA?

 

I have found most other relevant info for my set aside appeal but can't find this bit. Thanks again.......Valdez

 

Vi Valdez,

 

I have done some considerable research into this question for my own situation and think I have determined that a Default Notice only needs to be issued before the account is terminated; in theory they could sell the debt on without defaulting/terminating the account (although I would imagine that would be unlikely! They usually only sell them when they have tried to get the money and failed, and that usually entails issuing a default and then terminating the account and demanding the full balance!). However, if you check your credit file with the CRAs for a Default entry by the original creditor then this would confirm that they issued one (of course that doesn't mean you were served correctly with it! They need to prove that they sent it - i.e., at the very least they need a certificate of posting.).

 

If the account has been terminated (i.e., they are demanding the full balance) then they need to prove that someone issued a default notice before the account was terminated, whether that was the OC or the DCA. Of course the DN must also be correct with timescales, etc. If the account was terminated without a default notice then this is unlawful rescission and you have a remedy for damages for at least £1000 plus damages of up to about £10,000 for damage to your creditworthiness!

 

Hope this helps!

 

Colin

P.S. Once the first default notice has been issued and then the account terminated, no further default notices can be issued as there is no longer an agreement to default on! i.e., they only get "one bite of the cherry" to get this right, and it seems most fail this atempt!

Edited May 15, 2010 by colin21958

[Guest]

Vi Valdez,

 

I have done some considerable research into this question for my own situation and think I have determined that a Default Notice only needs to be issued before the account is terminated; a dn must be issued for any breach where they seek s87 in theory they could sell the debt on without defaulting/terminating the account imo, no.(although I would imagine that would be unlikely! They usually only sell them when they have tried to get the money and failed, and that usually entails issuing a default and then terminating the account and demanding the full balance!). However, if you check your credit file with the CRAs for a Default entry by the original creditor then this would confirm that they issued one (of course that doesn't mean you were served correctly with it! They need to prove that they sent it - i.e., at the very least they need a certificate of posting.). imo, they need to show on a 'balance of probabilities' that it was issued/posted. a cert of posting may not be needed. depends on the J.

 

If the account has been terminated (i.e., they are demanding the full balance) then they need to prove that someone issued a default notice before the account was terminated, whether that was the OC or the DCA. it would have to be the oc imo, as above. Of course the DN must also be correct with timescales, etc. If the account was terminated without a default notice then this is unlawful rescission and you have a remedy for damages for at least £1000 plus damages of up to about £10,000 for damage to your creditworthiness!

 

Hope this helps!

 

Colin

P.S. Once the first default notice has been issued and then the account terminated, no further default notices can be issued as there is no longer an agreement to default on! i.e., they only get "one bite of the cherry" to get this right, and it seems most fail this atempt! imo, a dn can only be issued once for any particular breach. if the dn/breach is remedied, then a second dn can be issued later on if there is another breach (provided of course that it is a valid dn).

 

..

Edited May 16, 2010 by Ford
addition/typo

[Valdez is Coming]

Thanks for that Colin & Ford

Re your last comment, Ford - it was my understand that a further DN could only be issued if the debtor consented to this (i.e terminated agreement = no agreement to issue a DN against)?

 

Can you or anyone clarify pls - l have to get this right first time

Thanks........Valdez

[Guest]

Thanks for that Colin & Ford

Re your last comment, Ford - it was my understand that a further DN could only be issued if the debtor consented to this (i.e terminated agreement = no agreement to issue a DN against)? not quite sure what you mean. but, imo if there was termination following a wholly defective dn, then the consensus is that the agreement did not 'continue' as it has been rescinded. therefore a further dn in those circumstances is 'void' ie not applicable as there is no 'live' agreement to issue a dn on.

 

Can you or anyone clarify pls - l have to get this right first time

Thanks........Valdez

 

..

Edited May 16, 2010 by Ford

[Valdez is Coming]

Ford - thanks - yr answer is exactly what l wanted for confirmation.

DCA stated 'will terminate' agreement on a date which was within 14+2 days of dates shown on DN.

Therefore, l understand recision has occured, there is no agreement in place anymore and, therefore, they cannot now issue a new DN to rectify this (unless l agree to this - which of course l won't).

Can you pls confirm this? Many thanks...................Valdez

 

Am in court next week so would appreciate some concise help with this pls.

Since swearing my affidavit at court, some new information has come into my hands which l believe is essential to my appeal.

I need to know just what l have to do to have an additional statement/affidavit containing this info added to my original so that l can use it in court.

Do l have to go to the court again and swear on oath again?

Is there a particular form l need to complete?

Or can l just write to the court/judge advising l wish to add info to or amend my original affidavit.

This is vital....PLEASE....any help much appreciated. Many thanks.

[Guest]

you should have had a notice of 'assignment' ie sale of the matter. if not, then this another matter in your favour.

if the dn is invalid as you say, then the consensus is that there is no 'live' agreement in place anymore once they have 'terminated' (therefore unlawfully). it has been rescinded for breach. a valid dn is required re s87 cca before termination. imo, a dn cannot be issued in re of an agreement that is no longer 'live'.

have you done a sar? this may provide some useful info. at what stage are you at with this?

some dn info

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

wait for more opinions/advice just to be sure

[Valdez is Coming]

Ford...thanks again...l sent SAR to OC as soon as SD was received, but they have 40 days to reply and court case is this week - so l'm not going to get this info in time for my appeal.

I applied to the court for an adjournment, and paid £30 for the privilege of the judge refusing it, unless claimant agreed, They refused.

No notice of assigment received only DCA telling me they owned the debt. Then in a later letter they stated they were not the creditor under CCA.

So l don't know and won't know in time if DCA has equitable or legal assignment. I really needed more time to make my case - but now have to work with what l have available. Any thoughts on this?

[Guest]

i think you may need some more help on this. hit the red triangle asap and ask for help!

[Guest]

valdez, if the dca has bought, then they 'step into the shoes' of the oc.

as you're already in court with this re SD etc, then i think you'll need further help.

[Valdez is Coming]

Thanks Ford. I have clicked the red triangle on your last message as advised - but it states 'only to be used to report spam, etc'.

Am l clicking the right place?

Its late so l guess no response til Sunday anyway. Thanks for yr advice and pls keep looking and add anything you think might be useful.

[Guest]

did you leave a message after hitting the triangle? you should get a response soon. if not, bump your thread requesting help asap.

do you have any further info re your case?

[Valdez is Coming]

Yes left message and yes asked for help.

Have lots more info but don't want to reveal too much as 'they' may be watching.

Have been at this all day - with brief break to watch Cup Final - and can't absorb anymore so am going to bed now and will resume tomorrow. Many thanks.

 

Bump....need some advice urgently tomorrow on this please. Many thanks.

[caro]

There are a couple of links here that may help.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/112326-dcas-statutory-demands-few.html#post1102399

 

National Debtline England & Wales | Debt Advice | Factsheet 36 Dealing With A Statutory Demand

[Valdez is Coming]

Caro, thanks for yr post late last night.

Have looked at those links and they are helpful

My defence is almost complete - but l need to add some info that has only come into my hands in the last few days to my affidavit. Any advice pls on how l go about this? (see my other thread which l have bumped)

Is it even permitted or am l stuck with what is already in the affidavit?

This is really important as the info l now have should mean DCA cannot proceed.

HELP PLS!

 

BUMP....can anyone advise on this pls? Its very important that l know what l can do about this. Thanks.

[postggj]

In What Context Is This New Info Valid And Important

 

Pm Me If Needed

[Valdez is Coming]

Postggj......l have located a document which l could not find when l completed my set-aside affidavit. Don't want to say what it is, but it should blow the DCA's SD out of court.

Clearly, in my affidavit l said l had not received this document (although it was referred to). When l looked through my paperwork it genuinely was not there (had been missfiled) and was only found this weekend when looking for something else.

I don't want to sound like l'm being untruthful in court cos l haven't been. But l do need to be able to introduce this document.

Do you know anything about how set aside appeals work?

Should the judge allow me to present my case (skeleton argument will be presented) or must he/she make me stick to what's in my affidavit?

Haven't been to one previously, so l don't know.

Can anyone through some light on this. Thanks.

[postggj]

I Need To Know What This Info Is And

 

 

Was It The Dca Who Sent You This Document Or The Original Creditor

 

Please Pm If Needed

 

Done Loads Of These Set Asside Applications