1st credit claimform - old MBNA Card debt *** SETTLED OUT OF COURT ***

[B3rty]

Thank you..

[pt2537]

ok so what does the claim form say?

 

if you need advice on preparing the defence you will need to post up what they are claiming

 

you can type it or scan the info in

 

defences are not my best area of expertise but i am willing to help and there are a lot of people on here who write excellent defences to this type of claim

 

 

regards

paul

[B3rty]

Just wondering ....When the debt was sold I wrote to them in June 2006 acknowledging the debt and trying to set up a payment scheme, they never responded other than threatening calls and I paid £1 each month first by cheque and recently by SO....could this work against me if they produce this letter to the court?

[pt2537]

NO IMHO,

 

the court would need to see a Credit Agreement containing all the prescribed terms and signed by you and the creditor before they can enforce the debt.

 

S127 prevents the court from taking any action without the agreement or a true copy of it

 

 

Regards

paul

[pt2537]

sorry i meant to say S127 Consumer Credit Act 1974

[Edz11]

pt2537 was spot on. No executed agreement = not enforceable.

 

What I would also do is still send off my £1 and ask for a copy of the executed credit agreement. Reason is (and I'm trying to think like they would) you then prevent them from saying "we did not receive a request under ss77/78 so how can we be in breach of it?".

 

A Part 18 request for further information is a "request". It may or may not be supported by a Judge who when asked by the defendant may (or may not) issue an order that says the claimant must provide some/all/none of the information that was previously requested under Part 18.

 

A ss77/78 demand (and that is what it is) means that you don't have to rely on the Judge's discretion. The time limit will expire before your defence goes in as they are mega unlikely to get it to you before then. They have to provide it or they're buggered (a legal phrase). I'm looking at a case right now and that is exactly how it panned out. So send off your quid tomorrow!

[B3rty]

So shall I send the letter above to the Solicitor and the standard letter to the company with £1?

 

Also I have to complete the defence section on the form and wondered what I should put in that part, I am doing this online for ease...?

[pt2537]

I concur on most points that edz11 raises

 

i see where this is going with the CCA request and agree that to add strength to your case you would be prudent to send the section 77/78 request for info along with the one pound postal order.

 

http://www.consumeractiongroup.co.uk/forum/general-debt/20758-creditors-dcas-letter-templates.html you need letter N

 

do not sign it, instead print as per the above letter

 

send both letters to the solicitors, they have a duty to obtain the information from the creditor

 

with regards the defence, cant help until we know what we are defending?

 

 

regards

 

paul

[B3rty]

Hi paul

 

The Particulars of the claim state:

 

The defendant was indebted to MBNA Europe bank Ltd for credit advanced. The debt was assigned to the Claimant. Notice of assignment was given to the Defendant.

The Claimant claims the debt due from the Defendant of £3,704.94

together with interest as the rate of 8% per annum pursuant to Section 69 of the County Courts Act 1984 amounting to 405.81 and also claims

further interest until judgement or sooner payment at the daily rate of 0.81

 

Thanks...Bert

[B3rty]

Just bumped up the thread as it got out of order and I have some more questions that I would appreciate someone looking at...

 

Thanks for the help

 

I have today sent the two letters by special delivery and established my date my date at the court as 28th November so I feel I am on a roll and will feedback when I receive the usual replies etc…..I have to say I feel pretty good about this and upon reading the forum feel I may have another claim….

 

I had a business account, business loan and a personal account with HSBC which has been serviced by Metropolitan credit services I paid them a token 3x £1 a month for the last 2 years somewhere along the line the loan has rolled into the business account .

 

Yesterday I had letters from HSBC saying these had been assigned to Pheonix Recoveries acting on behalf of Tessera Recoveries on the 12th October and that Phenonix are now the effective owners

 

They have appointed Marlin Financial Services as their servicing agent and provided me with their address

 

OK I realise I can send a S.A.R - (Subject Access Request) letter to the bank regarding the accounts which I will do as the two totals they quoted were £ 12,770.97 and £8381.88 so a total of £21152.85 and on my reckoning that’s about £4-5k too much so I will be interested to see what they have charged me on that, I have completed the letters and will send these with the 2x£10 to-morrow.

 

However as these were a business account and a current account can I use the CCA letter to send to Marlin? Plus does this put me in dispute with the bank at some point and can this reflect on DCA and their capacity to act….etc etc

 

Your thoughts are gratefully appreciated

 

Bert

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[Curlyben]

You MUST acknowledge the claim, this will give you a further 14 days to file a defence, so 28 days in total after service.

By this time they should of replied to the CPR request and a proper defence/counter claim can be entered.

 

IF they don't respond in time then file a "place holder defence" and bring the fact they have failed to supply nformation to the courts attention.

[Edz11]

The CCA request has to go to the creditor. As pt 2537 says - nothing wrong with copying to the solicitors - they may be acting for them in legal proceedings but not in connection with anything else but all bases covered then.

 

You get 14 days from the date of the claim. Best thing to do is wait until the 13th day and file an acknowledgement. That gives you a further 14 days. (That annoys them). What is the date of the claim?

[Curlyben]

Edz11, under CPR 8.5 the defendant is entitled to all documentation that the claimant will rely on in court, so a normal CCA wouldn't be needed. The CPR request supersedes this and doesn't require the statutory fee.

[B3rty]

Just bumped up the thread as it got out of order and I have some more questions that I would appreciate someone looking at...

 

Thanks for the help

 

I have today sent the two letters by special delivery and established my date my date at the court as 28th November so I feel I am on a roll and will feedback when I receive the usual replies etc…..I have to say I feel pretty good about this and upon reading the forum feel I may have another claim….

 

I had a business account, business loan and a personal account with HSBC which has been serviced by Metropolitan credit services I paid them a token 3x £1 a month for the last 2 years somewhere along the line the loan has rolled into the business account .

 

Yesterday I had letters from HSBC saying these had been assigned to Pheonix Recoveries acting on behalf of Tessera Recoveries on the 12th October and that Phenonix are now the effective owners

 

They have appointed Marlin Financial Services as their servicing agent and provided me with their address

 

OK I realise I can send a S.A.R - (Subject Access Request) letter to the bank regarding the accounts which I will do as the two totals they quoted were £ 12,770.97 and £8381.88 so a total of £21152.85 and on my reckoning that’s about £4-5k too much so I will be interested to see what they have charged me on that, I have completed the letters and will send these with the 2x£10 to-morrow.

 

However as these were a business account and a current account can I use the CCA letter to send to Marlin? Plus does this put me in dispute with the bank at some point and can this reflect on DCA and their capacity to act….etc etc

 

Your thoughts are gratefully appreciated

 

Bert

[pt2537]

bert

 

with regards to the business account, this would not come under the same cover as the personal loan insofar that if no credit agreement is produced it will still be enforcable

 

the business loan, i will have to read through the CCA 1974 to see if it covers business, the title rather suggests that it may not as its the Consumer Credit Act and i know under the consumer protection act it does not extend to persons acting ina business capacity, im not sure if this extends to the Consumerr Credit Act 1974 in the same way

 

i will have a dig around and see what i can find out

 

Regards

paul

[tomterm8]

bert

 

with regards to the business account, this would not come under the same cover as the personal loan insofar that if no credit agreement is produced it will still be enforcable

 

the business loan, i will have to read through the CCA 1974 to see if it covers business, the title rather suggests that it may not as its the Consumer Credit Act and i know under the consumer protection act it does not extend to persons acting ina business capacity, im not sure if this extends to the Consumerr Credit Act 1974 in the same way

 

i will have a dig around and see what i can find out

 

Regards

paul

 

The old style Consumer Credit Act ( i.e. 1974) did not cover loans taken out for the purpose of a trade. The new style (2006) does cover some businesses, i.e. partnerships, sole trader etc.

[pt2537]

thanks tom, i havent had the chance to look at that so youve saved me a job

[B3rty]

Thanks for these replies....I await the CCA agreement copy from 1st credit along with all the other documention from their solicitors and will let you know when this arrives......I'm hoping that some kind person can help with my defence that needs to go in on the 28th depending on what their replies are I assume it will go to a 2nd court date and I will get nasty letters leading up to that..

[B3rty]

I just had a thought.....

 

The bank accounts have had charges added to them that I dont understand so can I S.A.R these accounts to find out what they are and maybe claim this back even though they have sold these on ?

 

also....this would put me in dispute with the bank so what effect would this have on the collection agencies and their rights to adminster the debts?

 

thanks again

[pt2537]

Hi Bert,

 

i think it would be best to wait for the documents that have been requested to arrive, then you can tailor your defence on them

 

until you know if the agreement is enforcable or not you cant develop your arguement based upon the agreement if that makes sense

 

with regards the charges on the bank account, if they are penalty charges then i do feel you could reclaim them so a sar would be an idea

 

Regards

paul

[B3rty]

With regards to the business account I was a sole trader and the loan was added to this when I defaulted

 

The other account was at first direct where I had a £10k overdraft, I had a First Direct credit card and when I defaulted they added the card balance to the account as overdraft so in fact about 80% of the real debt was loan/credit cards that got added along with a lot of charges..

 

I suppose if I S.A.R the account this will show up but it does add a twist and I wonder if the card and maybe loan are covered by the CCA as I was a sole trader trading in my own name...anyway the FD account was a personal account

 

In addition if I S.A.R and the new DCA try to use litigation as verablly thay have said they will go for a CCJ can I get this stayed as I am in dispute with the bank until the S.A.R - (Subject Access Request) is produced...

 

Hey I'm starting to get good at this.....

[tifo]

I'm in the same boat.

 

Got a letter from Fredrickson that they have bought a debt from Phoenix acting in the name of it's compartment (whatever that is) Tessera and that they have bought the debt and are administrating it (can't be both?)

 

got a letter from bank saying they have sold it to Phoenix.

 

not had anything from Phoenix yet so can i refuse to talk to Fredrickson, as i have no proof that Phoenix had any right to sell it to them and until i get that i don't have to talk with them? Then i need proof that they themselves have bought the debt.

 

am i right?

[B3rty]

I have CCA letter'd Marlin who are the servicing agent and the letter says all contact regarding this account should be directed to them at the address given in West Sussex, The bottom paragraph quotes the date of sale as 12th October so the debt has been sold and they are responsible for providing the CCA....I have also SAR lettered HSBC as I am sure there are charges to reclaim and I will go down that route as well...

[B3rty]

I had a letter today from LCS solicitors acting for 1st credit in reply to the CCA letter I sent to 1st Credit and the request for information letter I sent to LCS, enclosed with the letter was the notification they sent on 12/6/2006 advising me that the debt had been assigned to them from MBNA

 

Your thoughts would be appreciated

 

The letter reads

 

 

We refer to your recent communication. The contents of your letter have been noted

 

We write to inform you that this account was originally a credit card debt owed to MBNA, account reference number xxxxxxxxxx. The account was opened 29th January 2003. The interest rate was 24.9%. The last payment received into the account was in the amount of £5 on 26th April 2006. The balance of the account on default was £3719.94. The account was closed by MBNA 30th May 2006. The debt was assigned to our client 12th June 2006.

 

Notice of assignment of the debt was sent to you under s.136 Law of Property Act 1925. A copy of the letter notifying you of the assignment is enclosed. We have requested further information and documentation from MBNA and will forward it to you when we receive it.

 

You do not deny the debt and our records show that there have been some repayments made into the account. It would appear that there is no defence to our clients claim.

 

We note that you are due to file a defence by 28th November 2007. Filing a defence will incur further legal costs for yourself and our client. Even at this late stage, our clients preferred solution is to resolve the matter by agreement with yourself without the need for further legal proceedings. Please telephone this office as a matter of urgency in order that this matter can be discussed. Thank you for your co-operation.

[B3rty]

Any thoughts on this?