Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

Includes energy companies, mobile phone providers, retailers, banks, insurance companies,debt collection agencies, reclaim companies, secondhand car sellers, cowboy garages, cowboy builders and all the rest who put their own profits before you.

£6.99



Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

£19.99 + £1.50 (P&P)


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  1. #121
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Yes and yes and its your choice if you wish wish to run 1 spare set.

    We could do with some help from you

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  2. #122
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Quote Originally Posted by Andyorch View Post
    Yes and yes and its your choice if you wish wish to run 1 spare set.
    That's helpful – thank you.

    Furthermore, I've done a bit of Googling but, alas, am none the wiser; that being the case, was hoping someone could tell me what format the hearing will take. For instance, will I be expected to outline my case or merely to respond to questions from the judge and / or claimant.

    If anyone can shed any further light on this or, alternatively, point me in the direction of a relevant thread – as I said, I have looked but have struggled to find one – I'd be eternally grateful.

    Thanks
    NuggyPeach


  3. #123
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    District Judge directs all proceedings..and asks the questions....you wont talk to the claimant.

    We could do with some help from you

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  4. #124
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Quote Originally Posted by Andyorch View Post
    District Judge directs all proceedings..and asks the questions....you wont talk to the claimant.
    Okay, got ya.
    Had been my intention to pen a short statement I could read in court outlining my case.
    Is there any merit in this or am I unlikely to get the opportunity to share it?

    Also, how ought I to address the judge?!


  5. #125
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    sir/madam re a DJ

    when you get there, the other side might approach you for a 'chat' about the case before. up to you whether to or not.

    IMO

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  6. #126
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Quote Originally Posted by Ford View Post
    When you get there, the other side might approach you for a 'chat' about the case before. up to you whether to or not.
    All the advice I've seen on here is that I should decline any such offer should it occur. Is there any reason for not doing so?!


  7. #127
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Imho no...

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  8. #128
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Sorry but don't think anyone has answered this:

    Had been my intention to pen a short statement I could read in court outlining my case. Is there any merit in this or am I unlikely to get the opportunity to share it?
    Any thoughts anyone might have would be much appreciated.


  9. #129
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    You can..no harm having one ready in case the Judge does invite you to open or to give a synopsis ...but its normally the claimant that would open if invited to.

    We could do with some help from you

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  10. #130
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Again, that's helpful – thank you.

    Must hit the sack soon in preparation for tomorrow, but, before I do, one final thing I'm still struggling a little to get my head around. As I've written in my witness statement:

    15. In Point 23 of their Witness Statement, the Claimant’s solicitors maintain that a Default Notice was sent on / around September 24, 2008, and seek to evidence this by reference to the Activities and Memos Report contained at Page 33 of their bundle.

    

I have no recollection of ever having received a Default Notice be it from Link Financial Limited or the original creditor. Moreover, the Claimant solicitor’s assertion that a Default Notice was sent on / around September 24, 2008, is at odds with their Particulars of Claim which state: ‘The Defendant failed to make payment as required and by 30.06.08 a default was recorded.’ Indeed, I have in my possession an Equifax credit report dated 28.12.11 which confirms the date of the default as 30.06.08. [EXHIBIT H]

    

Furthermore, I am also in possession of a letter from MBNAicon, dated May 20, 2008, in which they confirm they are willing to accept minimum payments of £13 per month on my account and there is no suggestion that the account is about to be defaulted. [EXHIBIT I]

    

In these circumstances, there must be considerable doubt whether I was ever served with a Default Notice. This being the case, the Claimant is put to strict proof that a valid Default Notice was served pursuant to s.87[1] of the consumer crediticon Act 1974. Service of a notice on the debtor or hirer in accordance with s.88 is necessary before the assignee can become entitled, by reason of any breach by the Defendant of a regulated agreement.

    However, the Claimant is maintaining that, in any case, a default notice was not explicitly mentioned in their Particulars of Claim and is, therefore, not required. Rather, they argue that 'as reflected within the varied terms and conditions at pages 22-28 0f the attached bundle, the Defendant was required to make, as a minimum, monthly payments of £25 or 1% of the balance, whichever was greater.

    'The Defendant was thus required to have repaid the outstanding balance of £X,XXX.XX as the point of assignment in July 2008 within 50 months, no later than September 2012 and accordingly the outstanding balance claimed is fully in arrears. Accordingly there is no accelerated recovery by which s.87[1] of the Consumer Credit Act 1974 might present any bar to enforcement.'

    Try as I might, I can't find a definitive answer to the question of whether in instances such as this one a default notice is required and would, therefore, very much appreciate the thoughts of my fellow CAGers.


  11. #131
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    from my andy notes folder.........


    Default notices, litigation and section 127(3) of the consumer crediticon Act July 2010
    .
    For a creditor to enforce a credit agreement against the debtor,
    he must serve the latter with a default notice,
    this notice must be served in accordance with section 88 of the Consumer Credit Act 1974 (CCA).
    .
    Generally, the prescribed form of a default notice according section 88 is as follows:
    .
    "The default notice must be in the prescribed form and specify
    .
    (a) the nature of the alleged breach;
    (b) if the breach is capable of remedy, what action is required to remedy it
    and the date before which that action is to be taken;
    (c) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach,
    and the date before which it is to be paid."
    .
    Section 127(3) of the Consumer Credit Act 1974
    .
    Should the debtor be sued for the outstanding amount,
    it may be open to the debtor to raise an argument that the agreement is unenforceable
    because it does not comply with the requirements of the Consumer Credit (Agreements) Regulations.
    .
    Agreements executed before 6 April 2007 are subject to sections 127 (3) & (4) of the Consumer Credit Act 1974 ('CCA').
    Agreements entered into after that date are not by operation of the repeal under the Consumer Credit Act 2006.
    .
    The effect of sections 127 (3) & (4) truly displays the paternalistic nature of the CCA, in that where a breach of a prescribed term under regulation 6 and schedule 6 to the Consumer Credit (Agreements) Regulations 1983 is found, the agreement as a whole will be irredeemably unenforceable.
    .
    In other words, the lender cannot enforce the agreement or realise any surety under that agreement; the debt in effect is written off.
    Regards
    Andy


    ............


    the claimant would have to produce the extract from the original creditors comms/account log printout that one was sent.
    it needs to also be born-in-mind that MBNAicon used UK Mail not royal mail and often the delivery method did not meet the requirements of 1st class mail.
    so the DN was not delivered in time [2 days]


    Harrison re link rings a bell
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  12. #132
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    1. On 3 October 2008 MBNAicon sent a default notice (TB4/1502). Paragraph 12 of Mrs Worden's statement dated 26 July 2010 reads as follows:
        1. Exhibited to this Witness Statement at "NW3" is a copy of the default notice which was served by MBNA on the Claimant ("the Default Notice"). The Default Notice was dated 3 October 2008 and, in accordance with MBNA's standard procedure was despatched to the Claimant on 3 October 2008 by way of UK Mail's Business Class service which guarantees delivery within two days of despatch, including Saturdays. It is not, and was not in October 2008, the standard practice of MBNA to send default notices to customers by second class post. There is no reason why the Default Notice sent to the Claimant in this case would have been sent by second class post contrary to MBNA's standard procedures.
    2. Investigation by the Claimant who knows about such things revealed that the notice was sent by second class post. Mrs Worden's own investigations revealed that it was "possible" that this was so. Her manner indicated that this was an elegant way of conceding the point as in my view she had to. Thus subsequent investigation contradicted a hitherto firmly held position of the Defendant that the notice had gone by a suitable post and was served in time. It was not. It was issued and sent by second class post on 3 October 2008 arriving (as was to be expected) on 9 October 2008 and was stated to expire on 21 October 2008. Given the date of delivery, the expiry date should have been 23 October 2008. The notice was bad.


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  13. #133
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    I have no recollection of ever having received a Default Notice be it from Link Financial Limited or the original creditor.

    Link cant issue a Default Notice as an assignee...only the OC

    We could do with some help from you

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  14. #134
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    Well, what a travesty today was!

    Arrived at the court in good time and reasonably confident of the case I was going to make. After a wait of more than an hour all parties were called into the hearing room.

    The district judge was friendly and convivial and soon put myself and my partner, who was accompanying me, at ease. Unfortunately, from thereon in it was all a bit of a joke.

    Firstly, the judge asked for details of the stay that had been lifted, but neither myself, nor the third-party solicitor representing Kearns, had them to hand. He didn't seem too concerned about this and on we went... momentarily at least!

    It subsequently transpired the judge hadn't had sight of Kearns' witness statement; their representative maintained it had been filed – they would say that wouldn't they – while the judge conceded it could, conceivably, have been lost within the court building. To further compound the situation, the solicitor acting for Kearns hadn't been furnished with my witness statement, despite my having an email to confirm it had been received at their end.

    On top of all this, Kearns' representative explained to the judge that she wasn't in possession of paper copies of any of the documentation on which she was intending to rely because her printer had 'blown up' earlier this morning.

    In short, I, as a litigant in person, had done everything asked of me – and endured significant anxiety and stress as a result – while Kearns had, apparently, cocked up at every juncture. I hoped this might go in my favour, but the judge took the view that, given the circumstances, the case would have to be adjourned and the only question was whether as and when it was rescheduled both parties wanted to be present. This being the case, he called for a short adjournment while Kearns' representative sought directions.

    During this break, she approached me and said her client would be willing to accept a 'reduced settlement' of £1,500 – not especially generous when you consider it's almost 50 per cent more than the alleged debt and includes a sum for interest pursuant to s.69 of the county courticon Act 1984. Unsurprisingly, I declined.

    The net result of all this was that we reconvened to agree the case would be rescheduled and, again, both parties would be in attendance.

    As you might imagine, this has been dragging on since the turn of the year and, win or lose, I was very much looking forward to having it settled today. On the plus side, I now feel far less apprehensive about attending court, I've seen for myself what an absolute shower of 5hite Kearns and their representatives are, and I have a little more time to fine tune my arguments!


  15. #135
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    .....because her printer had 'blown up' earlier this morning.
    i didn't think that old excuse washed anymore..
    it seems they simply were not prepared. as you say, 'a joke'.

    IMO

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  16. #136
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    Default Re: Link/Kearns claimform - old MBNA debt - poss SB'd

    So it went like a normal DCAicon claim hearing

    We could do with some help from you

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