Taken to court by MBNA

[star_scream]

My brothers mate has received a summons from MBNA for a credit card, could someone please help? The sequences of events are as follows:

 

He was approached by someone he knows in Sept 07 saying that he could show him how to get all credit cards and loans eliminated by buying his software. Apparently this has come over here from America. He has to send off a letter asking for:

 

Validation of debt (actual accounting)

Verification of your claim against me – sworn affidavit or signed invoice

A copy of the contract binding both parties.

 

He was told that, as they cannot supply these they will have to write the debt off. He was told that if they reply with anything at all, just to keep sending the above letter. He was also told to stop making payments immediately.

 

So 24/9/07 sent off 1st letter as above

27/9/07 reply asking for £1 under s78

10/10.07 Sent off 2nd letter as above

12/11/07 Reply saying still no £1.00

12/11/07 Reply with intention to commence legal proceedings

20/11/07 Sent off 3rd letter as above

22/11/07 Reply – Important default notification ( not a default notice!)

3/12/07 Reply asking to call and discuss payment plan

7/12/07 Letter asking to call as above

10/12/07 4th Letter sent as above

31/12/07 Reply enclosing Copy of original agreement Terms & Cond. & Recent statement of account

1/1/08 5th letter sent as above

14/1/08 default notice sent

14/2/08 Letter from Optima Legal Asking for arrears

Then at the start of March he told my brother, who asked me if I could help.

6/3/08 S78 letter sent asking for CCA enclosing £1.00

20/3/08 Reply from MBNA saying ‘we refer you to the contents of our previous letters’

22/3/08 Court summons dated 20/3/08 ( I have told him to acknowledge and send back)

Now, although they sent him what they refer to as a copy of the CCA, they still have to send another on request if it is longer than one month ago from the last request don't they?

 

N1CPC & agreement to follow

[star_scream]

 

Front

--------------------------------------

Back

 

It looks like the Prescribed terms are on the back

[steven4064]

He was approached by someone he knows in Sept 07 saying that he could show him how to get all credit cards and loans eliminated by buying his software.

I will refrain from saying that anyone who falls for anything as stupid as this probably deserves all they get.

 

However, what MBNA have sent him is obviously an application form which is a pre-contractual document and void under s59 of the CCA 1974. It does not comply with the requirements of s61(1) for an executed agreement, namely that it should have the borrowers name, full postal address and the terms pescribed in schedule 6 of the Consumer Credit (Agreements) Regulations 1983 all on the same sheet of paper (back to back won't do), and therefore cannot be enforced by a court by virtue of s127(3) of the Act.

 

This last paragraph could be used in a defence of the claim from Optima.

 

Obviously, CAG cannot condone the avoidance of payment of debts. What he may be able to do is to defend the claim as above and then negotiate a settlement with Optima, for example by offering to pay a third and settling at a half or something like that.

[banker_rhymes_with]

Hello Steven!

 

Sorry to jump in...

 

(back to back won't do)

 

Has that now been clarified? Just asking, as some of my own Consumer Credit Agreements (CCA), may have the prescribed Terms on the back, although not referenced to the Front/Signature Page in any way. Most/all are likely to be Application Forms in any event, but just wanted to clear the issue up if general prescribed Terms are on the back of the main Page.

 

Haven't actually seen any from the bankers, so far, just getting ready for what they might potentially produce based on the bumf I have filed here that they ought to have (that's if they had done their Job properly when filing the Documents originally)!

 

I think this question is relevant to this Thread, so I'm not trying to Hi-Jack it.

 

Cheers,

BRW

[star_scream]

I will refrain from saying that anyone who falls for anything as stupid as this probably deserves all they get

 

Maybe he isn't stupid, maybe the guy was convincing enough for him to buy. Maybe he was clutching at straws, who knows!

 

Thanks for your input

[steven4064]

Has that now been clarified?

BRW - I have been told so. There is always the danger that a particular District Judge might decide that on the back is the same as on the same page. However, in this case the front says Application Form in big letters so it cannot be an executd agreement. Therefore the problem doesn't arise.

 

Maybe he isn't stupid, maybe the guy was convincing enough for him to buy. Maybe he was clutching at straws, who knows!

SS - sorry, wasn't meaning to be judgemental. I think he has leverage to pay this off at a reduced level as I opinted out above. So maybe not so daft after all

[star_scream]

Steven,

I too am sorry. I didn't mean to sound as though you were being judgmental, I was merely trying to imply reasons why he would have bought this.

 

After doing some research, I find out that thousands of people are actually buying this software in the UK.

 

BTW, if a copy of a CCA is sent in reply to a s78 request,and it says application form, does this mean in every case the agreement is unenforceable?

[star_scream]

How's this for a defence?

 

The defendant states that the credit agreement issued by the claimant is unenforceable under s59 of the Consumer credit Act 1974 as it is an application form which is a pre-contractual document and so void under the above legislation.

 

Furthermore, the defendant states that it is not a properly executed agreement under s61(1) of the Consumer credit Act 1974, and, therefore cannot be enforced by virtue of s127(3) of the same Act.

The defendant, therefore, respectfully asks the court to strike out the claim.

 

And attach the copy of CCA to the form?

[steven4064]

What they have sent you is unenforceable. They may still have an enforceable agreement stashed away somewhere. If they can find it. You have to ask, though, if they have got one, why don't they send it to you instead of a copy of the application form?

[steven4064]

How's this for a defence?

 

The defendant states that the credit agreement issued by the claimant is unenforceable under s59 of the Consumer credit Act 1974 as it is an application form which is a pre-contractual document and so void under the above legislation.

 

Furthermore, the defendant states that it is not a properly executed agreement under s61(1) of the Consumer credit Act 1974, and, therefore cannot be enforced by virtue of s127(3) of the same Act.

The defendant, therefore, respectfully asks the court to strike out the claim.

 

And attach the copy of CCA to the form?

A bit pedantic but the application form is void under s59 and unenforceable under s127 because of s61. So I would write it as

The defendant states that the document puporting to be a copy of the executed credit agreement issued by the claimant in response to a request by the defendant under s78(1) of the Consumer Credit Act 1974 is an application form, which is a pre-contractual document and therefore void under s59 of the Act.

 

Furthermore, the defendant states that it is not a properly executed agreement as defined by s61(1) of the Consumer credit Act 1974 and therefore cannot be enforced by virtue of s127(3) of the Act.

The defendant, therefore, respectfully asks the court to strike out the claim.

[star_scream]

Thanks Steven, much appreciated.

[steven4064]

Coming back to post #2 - the application form - did they send it as a double-sided photocopy or as 2 sheets labelled 'front' and 'back'?

[star_scream]

Steven,

it was a double sided copy.

 

Aould there also not be defence to the fact they have refused to send out a copy of the CCA after receiving a s78 letter on the 7/3/08?

[steven4064]

Hi SS

 

Have a look at this post http://www.consumeractiongroup.co.uk/forum/mbna/132103-safecracka-mbna-law-2.html#post1455581

[star_scream]

Hi steve,

 

Thanks, I have been following that thread. There seems to be one or two of a similar ilk with MBNA.

Do you think that he could get the case stayed pending a reply to his s78 letter?

They sent his app. form when he sent in letters , not due to a s78 letter.

Howeverm they are now refusing to send him one because they sent him one previously

[steven4064]

Howeverm they are now refusing to send him one because they sent him one previously

They can do that. Section 78(3) says

(3) Subsection (1) does not apply to--

...

(b) a request made less than one month after a previous request under that

subsection relating to the same agreement was complied with.

[star_scream]

They sent a copy in Dec 07. The s78 request was in March 08.

[steven4064]

You should point that out to them

[star_scream]

To the court or MBNA?

[steven4064]

Both, but not necessarily in that order

[star_scream]

Hi

I started a thread here http://www.consumeractiongroup.co.uk/forum/mbna/137081-court-summons-mbna-please.html

 

I noe realise it should have been in this section. Could a mod please move it here for me?

Thanks SS

[star_scream]

Please

[star_scream]

OK Pretty please

[paulwlton]

OK Pretty please

 

PM a mod

[pt2537]

Threads merged at OPs request