A job for the Government Consumer Advocate, perhaps? I wonder if we will ever get one :-|

5th April 2006

This is all I can find, any good? http://www.consumeractiongroup.co.uk/forum/legal-issues/198059-unenforceability-cases-hold-until-12.html Post 665 on, I think

Anyone seen this from the MoJ? Government seeks views on personal debt management schemes - Ministry of Justice

You submit your defence in the same way. As r&b says, leave it a while and see what you get back from the sols as this will influence what you put.

Did you submit your AOS on line?

Everything? What did you send? You need to submit the AOS, then enter a defence within the 23 days before the final date. Did you submit a defence already? It just needs to be a summary of your arguements at this stage, then you will need to prepare a more detailed defence for the hearing, if it gets that far. Personally, I would go for having the action struck if they cannot produce an agreement but that is further along. At this point you should have sent the AOS, A SAR request, a CPR 31.14 or CPR 18 request (probably the latter) and entered a defence into MCOL. Then you can sit and wait as the court will confirm that a defence has been entered and allocate the case to the court system. MCOL is somewhat limited in its application so once you defend, MCOL cannot handle this so it goes into the court system. Northampton will contact you to tell you which court etc and a hearing date. If you have not received all of the information you have requested, then you will need to have proceedings stayed awaiting information from the claimant or their representative. I think this is complete, wiser minds will put you straight if I have missed anything. Good luck

I'm pretty sure that there is no "legal basis" for set off. No matter how they do it. Each account is the subject of independent negotiation. Set off falls under "custom and practice" rules - i.e. none.

I think the T&Cs can be referenced from the agreement, and only form part of it if the reference is present but the omission of the T&Cs is not fatal to the agreement, only the omission of the PTs. If the T&Cs are missing then this is of no consequence from an enforcibility perspective. That's my understanding. The Agreement regs (SI 1553 1983) detail the PTs. Only these have any bearing on the enforcibility as they relate back to s61 of the CCA 1974

To be fair, your circumstances, at least until recently, were very similar to mine so I am serving self interest by staying up with your situation. At the same time, the more we help each other the better prepared we both will be and the interjections from more knowledgeable Caggers are a great help. Hopefully, we will both get through all this and be able to sleep at night whilst the trauma continues. If I can help in any way, shout up and I/we will be here to support.

I'm pretty sure that the OC has to notify you if the debt has been sold. and to whom. The recipient must then contact ou to advise that they have been assigned the debt etc etc

This all seems rather odd to me. I applied for s78 disclosure on the same day as Nancy D. They did eventually send an agreement (although a pretty poor microfiche copy) in June. They have now written to me saying they will close the account and sell the debt. Why would MBNA take Nancy to court with no agreement and sell my debt when they have an agreement, albeit, not an enforcible one. The only difference I can see is that I have already sent off a SAR whereas Nancy hasn't. Really strange, anyone know how they arrive at the decision to chase/ dump an account. I know this doesn't really advance Nancy's cause but I'm curious.

I got a copy of a microfiche tear off strip - fairly standard, I think. I did get a default, I didn't run it by the regs to see if its complian or not, perhaps I should now.

Hi, any one who reads this, I know I haven't done much here recently but as you can see from the above it was a bit one-sided. I have just had a letter from MBNA telling me I must pay £43 ish or I will no longer be a customer of MBNA - I'm devastated, naturally, but they say they will sell the debt. Anyone know which bunch of wasters I am due to lock horns with next? Thanks

Yep, pretty much. I get the impression that if some kiddie can sit at a PC with a printer and churn it off then you can have it. If they have to get off their butt and go look for it then you're out of luck Nice work if you can get it :-| I think most of the agreements got filed in the recycle bin......and the people who authorised this are now part of a government statistic much in vogue at the moment. Spot on. I applied for 6. I got one signed agreement by return and 5 lots of flannel, ducking and weaving - now with sundry DCAs who aren't fareing much better than the OC. And guess who's getting paid!! Oh, and MBNA had a microfiche tear off which might as well have gone to CCA heaven for all the use it is.

Or they are "looking" for so many that they haven't got round to your's yet Not necessarily, there is a get out by way of the "Relevant Filing System" limitation within the act. They can send you what they think is "suitable" and hide behind this restriction. In the past Caggers and ICO have challenged this but they still do it. Join the club, persevere and you will get it but the Act does not seem well written in this respect so there is a fair amount of interpretation space so the clarity of advice is poor, as a result. Occasionally they will slip up and admit they don't have it or can't find it. Such admissions, if made in writing, are pure gold but they are rare. To keep you guessing is to keep you in a state of confusion as to whether it exists. If you are not sure then you may be retiscent about litigating in case they do produce it and collect the court costs. Its a game of chess but with fewer rules and you can't see all the pieces - perhaps more like battleships.

I would say "good Luck" but, by the sounds of it you won't be needing it. These are very foolish creditors, IMHO.

Great Minds Worth bearing in mind Civil Procedure 32, Para 13.1 Other documents 13.1 Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing. If they can't show you the original prior to trial date, they can't admit in evidence, according to CPR.

This is a notice of allocation - it is the document which allows the DCA the authority to collect the debt I would apply for one now, it will take a while to get back so the sooner you apply, the better. Once you submit a defence, the case will be issued to a local court, which will take time and you can apply for a further stay on proceedings to allow this (and any other) information to be provided. If there is an agreement of any sort, then this may flush it out - not guaranteed. It will also show the court (if you actually get there at all) that you have tried to get a copy of the agreement and weaken the claimants case accordingly. This is all standard fare with a MCOL claim I would suggest that you have a very good chance of success. If there is no agreement, or an unenforcible one, then the claimant's case is fundamentally flawed - this is just another bullying tactic. If they go to court, they will need to produce the original document. Failure to do so leaves them open to s127 (3) declaration. Once ou defence is submitted, you will need to apply for standard disclosure under CPR. This will show you the details of their case and any evidence they propose to present to the court. Then we will see if they have a case or not

The first thing to do is to tug out the document called "acknowledgement of service, fill it in and send it off. This will give you an extra 14 days to post a defence. Then get to work on a defence. If they haven't got an executed agreement then this is not going to test your imagination very much but I agree, this is now better placed in the legal section. We will follow you across, of course

Is it a real threat or full of "may" and "might consider" to make it sound threatening without having any substance. Did they tell you to reply to the sols or to MBNA? I got a similar letter from Optima Legal but when you read between the lines it was a worthless letter full of the above terms and ducking and weaving. I ignored it and they never followed up. Post some more details and we will see what you have really got.

Hi Docman, I don't know the details of the cases, sorry. I posted a query about the commercial court cases on another thread and a helpful cagger supplied this info. I can't remember who supplied it or which thread although it is mentioned in the TD post I linked to earlier in this thread. Sorry, can't be any more help

http://www.consumeractiongroup.co.uk/forum/legal-issues/200110-case-management-conference-mbna.html#post2179083 Here, post 6

As I understand it, the only cases referred to the commercial court related to removal of adverse credit references where an agreement was ruled unenforcible. The arguement centres on whether applying defaults where the agreement is unenforcible constitutes enforcement. There are no other cases that I know of. HHJ Halbart stated that relevant case law existed for the majority of unenforcibility cases to proceed. The commercial court cases are due to be heard in October, as far as I recollect. A cagger was there at the Chester court hearing and posted a detailed summary of proceedings, I will try to locate it.

As I understand it, the only cases referred to the commercial court related to removal of adverse credit references where an agreement was ruled unenforcible. The arguement centres on whether applying defaults where the agreement is unenforcible constitutes enforcement. There are no other cases that I know of. HHJ Halbart stated that relevant case law existed for the majority of unenforcibility cases to proceed. The commercial court cases are due to be heard in October, as far as I recollect.