Eversheds County Court Paperwork / **SUCCESS**

[goonerhenry]

so what should be my next course of action, also do i need to send a copy of my disclosure list to eversheds or is it just to the courts?

[the_shadow]

NoA = Notice of Assignment

 

Regarding the DN - holidays will only count if they are part of the postal period - there is no stipulation for 14 working days.

 

[bummer] He'll just have to cope with being -2 days shorted rather than -5 then

[goonerhenry]

also i definalty never rec'd any paperwork telling me that arrow had taken over the account

[Docman]

gooner

 

did you send in the defence as drafted by surfaceagent x20?

[goonerhenry]

yes quite a while ago now, why was the defence wrong??

[car2403]

If the agreement is enforceable, there's nothing stopping them applying to the Court for a stay to allow them to issue another (compliant) default notice.

 

The Court would probably allow that, IMHO.

[caro]

Would be best to send a copy of your list to both to be on the safe side.

[atwozee]

If the agreement is enforceable, there's nothing stopping them applying to the Court for a stay to allow them to issue another (compliant) default notice.

 

The Court would probably allow that, IMHO.

 

A default notice can only be issued under a live agreement – once terminated it isn’t live anymore so that option isn’t open to them – the court can reopen agreements but only if it thinks the agreement was extortionate under s139.

If a valid DN can be issued at any time then Woodchester v Swayne & Co would have no relevance.

[goonerhenry]

thanks for your replies, i will get eversheds a copy of the disclosure list out, so basicly im still sticking to fact that the default notice wasnt served correctly and as it stands eversheds either dont have a clue that the default notice hasnt been served corectly or they hope that i havn't, is there anything else i can do in the mean time? do i need to push for the notice of assignment and the original copy of the credit agreement or is what they have enough to let the case continue? also they mention in their disclosure list that they have some documents that they dont want me to see, am i able to demand to see those docs or is it not worth it?

[car2403]

A default notice can only be issued under a live agreement – once terminated it isn’t live anymore so that option isn’t open to them – the court can reopen agreements but only if it thinks the agreement was extortionate under s139.

 

If a valid DN can be issued at any time then Woodchester v Swayne & Co would have no relevance.

 

Was this agreement terminated, though?

[goonerhenry]

yes i do have a copy of the termination notice, i can post it up if you want?

[the_shadow]

Was this agreement terminated, though?

 

If not formally a request for the full balance is indicative of a termination according to the CCA regs I believe... Sure someone will be able to quote chapter and verse

[atwozee]

Can I ask a really stupid question? If the debtor had complied with the DN issued by Arrow Global and therefore remedied the breach, surely the credit card agreement would have continued. If so, how would Arrow be able to offer a credit agreement without a credit licence? Does this mean that the DN is defective because the remedy required was not of itself capable of returning the parties to the position they were at prior to the breach?

 

Just going back to this post – I would say that Arrow don’t actually have the right to issue a DN anyway – Arrow buy debts – they don’t administer credit card accounts.

The reality of the situation is that the account should have been defaulted by MBNA (whilst the agreement was live) and then terminated by them before being sold on as a debt – otherwise (if the account was assigned absolutely as a live credit agreement) you would have the situation whereby Arrow are operating as a creditor without a licence – this is definitely a point that needs raising.

If the assignment wasn’t absolute then Arrow has no right to make the claim without MBNA.

Maybe a letter to Eversheds pointing all this out is in order – anyone agree?

[banker_rhymes_with]

Hello Atwozee!

 

Maybe a letter to Eversheds pointing all this out is in order – anyone agree?

I agree.

 

The DCA has puffed its rounded chest out and has convinced itself it's a bank. It is acting as if it has both charge of a live Agreement and the means to keep it running.

 

It isn't and it can't.

 

IMHO, if the sale was absolute, then the Agreement ended at that point, because the DCA was never in any position to honour the terms of the original Agreement. There can be no Agreement in that case, it's just a lump sum Debt, and only a Debt if there was an original properly executed Regulated Credit Agreement, and the Agreement was Terminated lawfully.

 

If it was also Terminated anyway by MBNA, then there is little doubt the Agreement had ended even before sale to the pond life, er, I mean DCA. It would've ended upon sale then in any event.

 

Arrow had absolutely no right to issue a Default Notice, as they were never in any position to allow anything to continue had the alleged default been remedied. The fact that there was no live Agreement to Default is another slight weakness in their cunning plan.

 

Arrow issuing a Default Notice must've seemed like a good idea to them at the time, but it was a completely otiose exercise. In effect, they thought an official looking letter quoting s87(1) of the Act would look impressive enough to tease out a Payment.

 

However, it just makes them look impressively incompetent. It may be worth a complaint to the OFT, especially if Arrow do not have a Consumer Credit Licence. The Act was not created for idiot DCAs to play with it.

 

Cheers,

BRW

[Docman]

I entirly agree BRW. Is this a case where sight of the actual deed of assignment could be demanded in order to establish what rights Arrow had to issue the DN?

[goonerhenry]

thanks for the points raised guys, so i dont mess this up completly could someone help draft me a letter to both arrow and OFT quoting the relelvant laws so we can see what they actually have and if they intend to fight it all the way or if they are just full of it

[goonerhenry]

bump

[goonerhenry]

is anyone able to help??

[caro]

Have a go yourself at drafting something and I'm sure peeps will be only too pleased to refine it if necessary. You need to be able to understand all this yourself, because when you get to court you'll need to be able to present your own case.

 

Have a read in the default forum and you may find information that will help you. http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/

[Out4Revenge]

Hi all, I've just read this thread and from my understanding the OC issued the default in 2006?, and terminated the agreement in 2007? The DCA hasn't issued a default

The crux seems to be,,, insufient time on default notice, only given 14 days from date of letter, no time allowed for service, then terminated unlawfully.

Sorry if I've misunderstood whats been said over the last few pages but it seem to have got bogged down with inaccureses (ok my spellings cr4p but it is 5am) I'd defo SAR them ( the OC) for the original agreement and anything else they might have, at least then they have to provide a true copy of the SIGNED original! And get working out how much, if any, unlawful charges have been made, don't forget that the original default notice is void if the arrears include any charges or interest, so thats 1 more way the destroy the default notice,

 

please feel free to flame me if i'm wrong

[Out4Revenge]

Oh yes and don't forget that there was an agreement in place with the OC for payments at a reduced sum and that nopayments where missed, I don't know how relevent this is but I feel there must be a case that this claim should never of been brought?

[citizenB]

Hi all, I've just read this thread and from my understanding the OC issued the default in 2006?, and terminated the agreement in 2007? The DCA hasn't issued a default

The crux seems to be,,, insufient time on default notice, only given 14 days from date of letter, no time allowed for service, then terminated unlawfully.

Sorry if I've misunderstood whats been said over the last few pages but it seem to have got bogged down with inaccureses (ok my spellings cr4p but it is 5am) I'd defo SAR them ( the OC) for the original agreement and anything else they might have, at least then they have to provide a true copy of the SIGNED original! And get working out how much, if any, unlawful charges have been made, don't forget that the original default notice is void if the arrears include any charges or interest, so thats 1 more way the destroy the default notice,

 

please feel free to flame me if i'm wrong

 

It might be a bit late to use the SAR to request documents now, the claimant should provide the documents under one of the CPR rules.

[atwozee]

Hi all, I've just read this thread and from my understanding the OC issued the default in 2006?, and terminated the agreement in 2007? The DCA hasn't issued a default

The crux seems to be,,, insufient time on default notice, only given 14 days from date of letter, no time allowed for service, then terminated unlawfully.

Sorry if I've misunderstood whats been said over the last few pages but it seem to have got bogged down with inaccureses (ok my spellings cr4p but it is 5am) I'd defo SAR them ( the OC) for the original agreement and anything else they might have, at least then they have to provide a true copy of the SIGNED original! And get working out how much, if any, unlawful charges have been made, don't forget that the original default notice is void if the arrears include any charges or interest, so thats 1 more way the destroy the default notice,

 

please feel free to flame me if i'm wrong

 

No this isn’t correct – MBNA should have issued a DN – the OP hasn’t confirmed if this is the case. MBNA sold on the terminated account to Arrow – If they did that without issuing a DN then they lose any rights they would otherwise of had at termination – those loss of rights pass on to Arrow - Arrow are not a licensed creditor so they cannot administer credit card accounts in the same way MBNA can – Arrow cannot issue default notices on an account that has already been terminated.

The OP should have had a NoA – preferably from MBNA – unless arrow can prove one was sent then the assignment isn’t lawful.

The more you scratch the surface the more layers you unravel – there are potential data processing issues as well as breaches of the CCA 1974.

It was suggested that the OP write a letter to Eversheds pointing out all of the issues that will arise as a result of the claim – once they are aware of the issues they may consider discontinuing is the best course of action.

In the meantime the OP has to continue with the disclosure stage in order to keep to schedule.

As for the letter – the suggestion made by Caro seems to me to be a good idea and a good place to start.

[citizenB]

just a quick question atowzee. If MBNA hadnt terminated, would Arrow have beein able to issue a default notice ?. Or can they not issue them period ?.

[atwozee]

just a quick question atowzee. If MBNA hadnt terminated, would Arrow have beein able to issue a default notice ?. Or can they not issue them period ?.

 

That’s one for the OFT to clarify – but Arrow wouldn’t be able to buy a live account because that account would be a consumer credit account – a company can’t administer a credit account without a credit license – which they don’t have (at least I don’t think they have) – it would be different if the purchaser were someone like MBNA (for example) who can buy complete portfolios of live accounts and then re-brand them under the MBNA umbrella.

Issuing a default notice is something that IMO can only be done by a creditor because it has to contain the creditors address – how can Arrow overcome that hurdle – they are not and never have been a creditor under the CCA 1974.

My guess is MBNA just sold on a load of agreements at a time when they had even less of a clue regarding the CCA 1974 as they have now – hard to believe I know! – I would hazard a guess the OP’s agreement would not have been the only one to have been sold on under such circumstances – circumstances where the purchaser is now left with a terminated account (a debt and no longer deemed to be a credit agreement) of which the balance cannot be claimed.

The balance cannot be claimed because the original creditor were the only company (prior to termination) in a position to issue a DN – and as has already been argued – only when a valid DN has been issued can the creditor (or the assignee) take the next step in the process and terminate the agreement and claim the balance.