Thanks Shadow. This raises more questions - but moves us forward too.... 1. I guess it depends on which MBNA agreement is in force whether the Debtor CAN terminate the agreement without repaying the outstanding liabilities? 2. If a Debtor signe dthe old MBNA agreement do its original T&C's still apply or could MBNA have enforced the new ones if the agreement was still active and the Debtor contimued to avail himself of the "benefits" of the agreement? 3. If the Creditor had issued a dodgy DN and the Debtor had then terminated without repayment then surely the dodgy DN a) would prevent the Creditor from ENFORCING? b) would meant the Creditor could NO LONGER raise a correct DN, as the Agreement was terminated before this could happen? c) would mean a Court would (could?) not force the Debtor to repay anything still outstanding under the Agreement? d) is it not the case that whilst the "debt" or "liability" would still exist, the Debtor could simply refuse to pay (and after 6 years it would be SB) and the Creditor would be powerless to do anything other than trash the Debtor's Credit File? 4. If the answers to 3a) to 3d) are YES then is that not the same outcome as was averred in the long lamented thread started by Pinky69? BD

Although I have quoted from a post by Peter I would also welcome answers from others who may also recollect the same post(s) and who may confirm my logic or point out any flaws in it. I seem to remember Peter saying the Debtor could only terminate by settling the outstanding liabilities at that time. Do I remember correctly? If so, surely that means that it is not sufficient for the Debtor just to say to the Creditor "I terminate" or even "I accept your offer to terminate". Surely unless the Debtor pays up the outstanding liabilities at the same time as exercising the Debtor's right to terminate then the agreement or contract endures? If so, then, if the agreement endures, surely the Debtor still has the right to continue to make monthly payments until and unless the Creditor correctly issues a compliant DN followed in the right time scale by a complaint TN? If the answers to these questions is YES then surely if it is accepted (by a court) in such circumstances that the agreement has been terminated, then that termination must, by definition, be a UNILATERAL termination by the CREDITOR - as the Debtor could not terminate it before paying off the liabilities? If the creditor terminates in such circumstances, (irrespective of whether the Debtor was in default or not - provided the Creditor has not properly followed the laid down procedures by issuing a correct and totally compliant DN followed by a TN in the correct timescales) then surely the Creditor loses all rights to any outstanding liabilities of the Debtor? If so, then surely there is no way that the Creditor could side step this well-documented provision and terminate and demand full and immediate payment of all outstanding liabilities? BD PS - Nice to see these issues being discussed in a somewhat more civilised manner!

Newer agreements seem to be much easier to enforce than older ones - due to (I believe) changes to the CCA in 2007. I don't know much more as mine are all from around 2002 or earlier, so I've never looked into this issue. I recollect one post saying a Bank tried to get a CAGGER on to a new card with "better" T&C's - but he smelt a rat - and it now appears the old CCA was either lost or unenforceable. Sorry to have got you worried - hopefully others with more knowledge can clarify? BD

SS If new then the more creditor-friendly post 2007 rules will apply. I have set up a thread to try to get info on how readily any DCA will go to court. I have just CCA'd Cabot and they wrote back telling me they'll contcat Barclaycard to get the CCA etc. - but they don't accept the £1 - so if you want to CCA them you don't even need to send the £1. Good luck! BD http://www.consumeractiongroup.co.uk/forum/showthread.php?227592-How-ready-are-various-DCA-s-or-Original-Creditors-to-go-to-Court&p=2520642&viewfull=1#post2520642

SS If they already had your bank and card details from previous payments then a possible argument is that they used this info without your permission or authority to deliberately stop the SB happening - but this would need used with care - i.e. you would need to do a SAR and demand copies of telephone recordings as well as all other doumentation. If they can't provide that - then SB could well be on the cards. How much is the balance? That might determine whether they'll fight or just move on to someone who gives them less hassle. BD

I agree with that. I would just stick it out and then - at the 11th hour (the later the better) play the SB card - and hope they can't PROVE where the payment came from. BD

Min You're forgetting a boy from Glasgow would NEVER pass up the opportunity for a good fight - although MBNA might not be a sufficiently worthy opponent as we NEVER go after those weaker or less capable than ourselves! Anyway as my sig in post 209 shows I've still got plenty of potential fights left to keep me amused until SB dates kick in! BD

I bet they knew nothing about the history and just paid a few pence in the pound for the debt - along with a batch of others - assuming they DID actually buy it. If they are just a DCA they'll go away and another one will crawl out in a few weeks/months' time and the merry go round will start all over again then. BD

If your statement records the payment - and it has come out of another of your own accounts by credit or debit card then I would say (IMHO) they have succeeded in re-starting the SB period. That is the KEY reason why they are SO KEEN to get a payment of ANY AMOUNT - even £1 - when they contact you. I would say your only hope would be if someone else made that payment on your behalf - and without your knowledge and authority - but it would then be down to you to prove this on balance of probabilities - which would be VERY difficult. Had previous payments been taken for the same debt using the same means in the past? If so, you could argue that they must have replicated that without your authority if you don't remeber making the payment by phone - but again very difficult to prove - and they may well have a recording proving you did agree to the payment by phone. You could ask them to produce the recording and see if they can do so? Sorry - I think you've now got to brazen this out for another 4 1/2 years - so you may need to go down the CCA, then account in dispute route and then CPUTR to hopefully keepm them from going to court. BD

m2ae I agree totally with your theory. I just wish I had not settled at 35% with MBNA in 2007. I would have been over £11k better off - but at least I am much better prepared/informed to fight the remaining debts still outstanding. BD

I agree with GH. Its a good idea to keep things "moving" as long as its not in the direction of court - so a multiple exchange of letters takes up their time - and costs - with no return - also shows you're still on the ball!) I would just do another letter along lines of " I refer to your letters of Xx and XX. Whilst on Xx Feb 2011 you acknowledged receipt of my earlier letter of xx Feb, you now seem to have mislaid it. I therefore enclose a furter copy for your convenience and await your response to this letter. That way - you're not ignoring them - you're actually going out of your way to HELP them get over their own incompetence - and recording the fact they have screwed up this time - so "balance of probabilities" they may well screw up again. Always either send RD or get proof of posting cert (free) - if this then say in your letter (under the date) "proof of posting obtained". Good luck! BD

Martin I am sorry you felt motivated to make such a comment. Surely if that is genuinely thought by "many" (and not just one or two who are nursing a grievance) then the Site Team or the Owners should ensure there is a more prominent "Health warning" along the lines of " CAUTION - MANY POSTERS ARE SIMPLY BLOWING HOT AIR AND BOOSTING THEIR OWN EGOS - BUT WE CAN'T (WON'T?) TELL YOU WHICH ONES" ????. Indi - you are now admitting we did tell you to seek legal advice. Perhaps it's your recent manner - lashing out at those who have tried to help - that we don't like? Unlike some recent posters I have been with this thread all along and agree with the sentiments expressed by diddydicky and others who have also been trying to help Indi all along the way. However I reluctantly suggest Indi has not helped herself as much as she could - initially stating the money came from the Employer as a Limited Company, not confirming what her P60 etc. stated as to who WAS her official Employer (sole trader or Limited Company?), failing to confirm if she had ALL HER OWN bank statements and could PROVE the exact amounts paid into it, failing to get the evidence needed from the Claimant as to the exact amounts paid and from which bank account(s), being reluctant to get her ex to testify to being approached to pervert the course of justice, not totally clarifying why, when and where the credit card statement was signed and whether the damning statement of what was owed was added before or after she signed it, failing to exploit the differences in the claims made in the original and subsequent correspondence from the claimant, stating the oral agreement was she could just pay the money back "as and when she could afford to" or alternatively she was to be allowed to "work off" the remaining debt (but she now seems reluctant to put this forward as part of her defence????). Depending on how much unpaid work she did she may well have paid off the entire loan - but we have not been given any hard info on this - and surely this must also be worth investigating as a defence strategy? Again this sort of practice by her employer is certainly not "best practice" and possibly could be seen as evasion of Income Tax and Employer's NI etc. I have also raised the fact that her employer should have declared any interest charged on her recent Tax Return and that should surely be a relatively powerful weapon as failing to do so is either tax evasion or an admission she had not intended to charge this interest (assuming she was actually entitled to do so - which seems unlikley?). It is irrelevant if it was paid or not - the Claimant is suing for it so clearly believes it was "earned" and thus it should have been declared as earnings. I really hope (as she says) her lawyer now knows the WHOLE story - and is as experienced in this type of case as she believes. I still think a strong lawyer should be able to get this settled out of court as the Claimant has a lot more to lose than Indi by going ahead - and I have advised Indi long ago to seek professional advice with the objective of getting things settled out of court. I do not recollect any CAGGERs disagreeing with such advice - so any blame for any delay in Indi seeking legal advice cannot be laid at our door. I have been at pains all along NOT to advise her on what to say regarding the court case itself as I have always managed to avoid things getting that far and advice given was based on the successful tactics I have used in this strategy. Perhaps Indi could not have achieved the same outcome due to the vindictiveness of the Claimant but it would certainly have helped had she ensured the accuracy and completeness of the briefings she gave us and pursued her arguments more promptly and confidently with the Claimant's solicitors. I have learned a valuable lesson here - focus on helping CAGGERS against the big faceless OC's and DCA's - and DO NOT get involved in cases where there is a personal element in the dispute. In summary I truly believe the CAGGERs who tried to help Indi did so with the best of motives and gave her the best advice they could based on the information made available to them. They therefore IMHO have nothing to feel sorry or guilty about, although I am sure we will all be sorry for Indi if she is not successful as I do not believe the claimant deserves to win. I shall no longer be contiributing to this thread but wish Indi well and once again implore her to ensure she has told her Lawyer EVERYTHING, letting him judge its relevance or potential effect on her case. I really hope she wins as I do believe her former employer has acted extremely badly and hope she will post the result on here in due course. BD

Indiana See PT's recent post about how costs will be allocated. If the Creditor had come clean and shown bank statements that showed £21k (and not £23k) then you would have been able to say - "yes but....... work off, offe rto pay pe rmonth etc." She didn't - she has persisted to claim it was £23k without producing evidence - and you KNOW it wasn't £23k - so I don't see what's wrong with saying "NO - strict proof please". If their lawyer is not complying with properly made and legally enforceable demands for evidence then YOUR lawyer needs to get on to this PDQ. When you now say "not sure what else to do" - EASY - ASK YOUR LAWYER! I suspect part of your (perceived) anxiety may well be fuelled by your lawyer who, as a professional, will be highly sceptical of "well meaning amateurs". Fair enough - but he should now be focussing on "what needs done now" - NOT "what might have been done wrong before" - if anything! I still think there is merit in discussing the "work off" arrangement with your lawyer - that COULD be used to "explain" (if any needed) why you didn't "come clean" about the £21k on day one - also do you have anything IN WRITING about your offer to pay so much per month? Finally if she had gone after the TRUE amount still due then it would have been within the confines of the Small Claims Court - with very low costs - so I don't see why you should be risking anything other than small claim levels of costs on the amount you actually still owe - but that's based on common sense and not knowledge of THE LAW. Again - have you discussed this issue fully with your Lawyer? BD

Indi I repeat what I said in post 556. I am glad to see you are (apparently?) taking professional legal advice now. I hope it IS someone well versed in this type of law (like PT2537) and not just any "generalist" with an LLB! Can you please ensure he has seen ABSOLUTELY EVERYTHING you have - and anything you have not put in writing to the other side that may also be relevant - so he can make a FULLY INFORMED judgement and advise you based on FULL KNOWLEDGE of the ENTIRE case? As a layman, as I see it - she has claimed you have been lent £23k (paid out of her bank account) along with £1214 in various cash payments - unspecified and unrecorded - so how does she know it's exactly £1214? AND she is charging you a commercial rate of interest! It is up to her to PROVE she is entitled to claim all of this - and to provide such evidence as the Court may require (but you need to alert the Court to what you want from her). Incidentally I wonder if she declared the amount of interest she has charged you during the Tax Year ending 5 April 2010 on her tax return - which must have been submitted by 31 January 2011? You seem to be panicking - and lashing out at those who have tried to help you all the way along. Please calm down and see if you can comply with my suggestions in post 556? Remember the burden of proof is on the Claimant - and you do not have to make her job easier for her (as her lawyer does not have to make yours easier unless compelled to do so by Law - which I don't think you've done yet? If you panic then you'll come across as not being a credible defendant and make the "balance of probabilities" move in her favour! She and he rLawyer also know this and will bait you as much as they are allowed to do in Court. Keep cool - let your lawyer take the heat - provided he's not only qualified but EXPERIENCED in this type of thing. Good luck! BD

Indi You seem to have a tendency to "cherry pick" bits and pieces and to deal with this in a piece meal manner - which is why it took so long to establish the loan wasn't from her limited company and we had to reverse down this and some other blind alleys. I suspect the same manner has led you to get the "advice" that is making you panic about not getting costs? PT2537's post indicates there may be a pro-rata allocation of costs - if you actually owe £2.5k but are being sued for (say) £10k then I would say the most you would have to pay would be 25% of the costs since you would actually only owe 25% of the amount claimed by her. I seem to recollect you did offer to pay £100 per month towards what you did actually owe - so surely that's not denying there was ANY debt - and should be interpreted as a reasonable attempt at mediation by you? If so, surely that lets you off the hook for ANY costs? As DD says you have been accused of owing £23k lent to you (when?) and £1214 - and you have simply asked her for evidence of this - which her clever lawyer is side stepping because you haven't yet done so in totally the correct (legally enforecable?) manner. You've been given the oinfo on the correct way to do this if you want to do so on your own. However I'm not sure you should continue on your own. I strongly advise (as a layman) that you print off EVERYTHING you have from the Claimant and everything you have put in writing to her lawyer and the Court so far. Then print off a list of things not yet put to the other side but which MAY help your case or paint a picture of the claimant (no witnesses present when you signed the CC statement - although she claimed there were 3 - then 2 witnesses, the words being added later, your ex being cited as a witness - then approached in street - now he's frightened, her practice to lend money and then get the debtors to "work it off" - thus avoiding employer's NI, Income Tax etc., the extra hours you HAVE worked towards paying the debt off before getting fired etc.etc.). Take ALL of this (leaving out NOTHING - no matter how irrelevant or sketchy YOU might feel it is) to a LAWYER and get him to review the ENTIRE bundle and advise you on what to do next. l would also explotre with him corresponding with the other lawyer - hopefully to get things dropped PDQ and a deal to repay the actual amount still owing (less YOUR costs?) at say £100 per month. IMHO any sensible lawyer seeing the risk of his client being charged with perjury should jump at this sort of offer. If you go down this route then it might be prudent to have "radio silence" for the interim - but if so, please just post up to tell us that is what is happening and then let us know outcome. If you decide to continue on your own - then fair enough - but please put everything you intend to do up on the thread so we can give our (inexpert but based on life experience) views. Good luck! BD

Min - OK - can't disagree with that strategy! Good luck - and keep us posted! BD

DB - I agree. If you can't see both sides of the fence then how would you know what was the "right" side? GH - I'm sorry to have to agree with you when you're "over there" - but thanks anyway for proving it IS possible to argue from the other side in a civilised manner! BD

GH You raise a very valid point. With Credit Card (rolling credit) agreements then any interest owed is interest actually only accumulated month by month on the balance to date - whereas with a Term Loan the interest is typically bundled in upfront and equal monthly repayments repay it along with the amount lent over the full term. What if someone defualted on a 7 year loan after only 3 months and the creditor (unusually) jumped through all the right DN and TN hoops and legally claimed the full liabilities due right now? If this is allowed then they would therefore have been paid interest meant to be paid for a loan borrowed over 7 years in only 3 months - i.e. making the actual apr 28 times as much. I was about to ask - surely a creditor cannot gain so much at the expense of a debtor in trouble - then I rememebered the £39 charges for bouncing cheques or Direct Debits! However I still ask - does the CCA actually allow the 28 times hike in the apr my scenario illustrates? The relevance of this to PH is that surely even if the agreement was somehow resurrected and the Creditor issued a new valid DN which she couldn't satisfy, surely there should still be (in interest of fairness if nothing else) some rebate allowed if the debt is repaid in full any earlier than originally envisiaged? BD

Min That all sounds VERY promising. How about telling them you have been going through old records and have this letter thanking you for accepting PPI - which you didn't want ad clearly you didn't apply for or accept as you have BOTH copies of the PPI acceptance form - and therefore you want a full refund of ALL PPI payments plus ALL associated contractual interest at THEIR rates refunded PDQ. Not sure if it's worth saying you have kept everything ever sent - and no copy of any agreement or specific T&C's received - might get them to drop everything base don the recent Harrison case? BD

Is it too late to make this offer based on what you DO OWE - and can you afford to pay it now?

Indiana From memory I thought you had "neither admitted nor denied" any debt. Surely what you were denying was the specific charge of owing £23k plus £1214 - not denying you owed ANYTHING at all? Also you said much earlier that you were to be given the opportunity to "work off" much of the remaining debt - and had in fact done so to a large extent before getting sacked? Arguably getting sacked took away from you the opportunity to work it off - and you never clarified any regular payments (I believe you said you could just "pay when you can"?) before the claimant got stroppy and went legal after a much inflated amount? For the record I think all of us who are not lawyers made clear you should seek qualified legal advice - especially in appearing in court. I don't like the accustation that the risk of at least partial costs is any fault of me or any fellow CAGGER. I think you should engage a lawyer - and have thought so for a long time which reference to earlier threads will show. I havealso said this in pm's to you as I think if you go to Court on your own then you will panic and screw things up -even although IMHO you have a very strong case if properly and coolly presented. Good luck! BD

See answers A: above and below in bold. A: Peter - Who started getting it wrong? The CCA allows for the OP missing payments - but the Claimant screwed things up after that - and surely it was the OP who did the "reacting" to wrong or invalid or unlawful claims from the Claimant - not the creditor reacting to the OP's "error"?

Indiana Where/when did you admit still owing anything? Who told you this about costs? Why do you think she can "part win"? Is someone getting to you? BD

Minmoo Don't worry. If they do sell you on then DCA's are actually easier (if more unpleasant) to deal with - and the more often your account is moved on, the greater the chance of these low lives mucking (back on this track again!) it up and making the debt unenforceable. BD

I seem to have mentioned both "flush" and "sh*tless" recently on this thread. Doesn't the latter rule out the need for the former? I recollect a water saving rhyme I heard somewhere : "If it's yellow, let it mellow.... If it's brown, flush it down". That's my bit for saving the Planet done for today! BD