CL Finance/Cohen Claimform - MBNA [ryanair] Credit Card debt **WON**

[Gazza112]

Hi CitizenB

 

Thanks for looking through my thread for me, as i thought as well the defaulted on me as well. I thought i was losing ther plot lol, till you confirmed it.

I tell you what i thought, weather it will work was to issue the same CSA 30.16 letter that i was going to send Barclay's and Halifax.

It's really to put the spanner in the work and see what they chuck back at me.

 

Gaz

[supasnooper]

Have you kept the envelopes the Default Notices arrived ?

 

If so, are they marked Royal Mail or UKMail ?

[Gazza112]

Hi Supasnooper

 

Yes, i've kept all the enverlopes and dated them when i received each letter.

They come by UKMail if thats any good, but with no markings of when they where posted.

 

Gaz

[supasnooper]

UKMail is considered a second class mail service so that may help you in regards of the time given for the Default Notice.

[car2403]

You can't prove when it was/wasn't sent though, so that's a non-starter IMHO.

[citizenB]

Hi CitizenB

 

No, sorry the Paperwork is in the wrong order, the second piece should of been the first otherwise everything is in the the right order.

I've got some updates to the MBNA account which i received today and will get posted later.

 

Gaz

 

Sorry Gazza, I didnt mean that the paperwork was in the wrong order on here.. but that that the alleged agreements they sent you were non compliant.

 

9th January was a friday, and you received it yesterday, yes ?.

 

Sadly, MBNA appear to have got it right this time. You discount the day of posting and the weekend following. Starting from the 12th in that case which is when you received it anyway, therefore you have the time required in law.

Edited January 13, 2009 by citizenB

[Docman]

Gazza

 

Sorry to put a downer on it but it looks like MBNA are learning some lessons about Default Notices. The Act requires you get 14 clear days after service not including the day that action must be taken to remedy the breach. Service under the Act when the DN is posted is deemed to be the next day. You might be able to argue 2 days under UK Mail. Two days is the assumed time for service under the Court's rules. Either way, they have given 14 days until 26 Jan.

[Guest dvdriley]

I have an enforceable credit card agreement with MBNA with a £7k debt. I offered to repay at £40.00 per month, which they have refused. I have now received a DN under sec 87.1 of the CCA.

 

However it is dated 9th Jan, I must pay the arrears by 26th Jan. By my caluculations that does not give me 14 days. It is one day short. Any advice and am I correct

[supasnooper]

Post Deleted - Duplicate of #259

Edited January 13, 2009 by supasnooper
duplicate post

[Gazza112]

Hi All

 

 

This was the letter i was going to send MBNA, before i send it can anybody if this letter is ok.

 

 

 

 

 

 

 

Date 13.1.2009

 

MBNA

Senior Manager

Chester Business Park

Chester

CH4 9FB

 

Dear Sir/Madam

 

Re: Account/Reference Number

Postage Reference:

 

I write with regards to the above account with your organisation.

 

I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

Obviously if the agreement is improperly executed i would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which i have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

I look forward to your reply and would ask for a response by 27/01/09

Regards

 

 

 

 

 

 

 

Gaz

[Viscount Stair]

post deleted - posted in error

Edited January 13, 2009 by Viscount Stair

[citizenB]

I have an enforceable credit card agreement with MBNA with a £7k debt. I offered to repay at £40.00 per month, which they have refused. I have now received a DN under sec 87.1 of the CCA.

 

However it is dated 9th Jan, I must pay the arrears by 26th Jan. By my caluculations that does not give me 14 days. It is one day short. Any advice and am I correct

 

dvd, the 9th was a friday. I think you discount the date the letter was typed. You then allow 2 days for posting 1st class or 4 days 2nd class. I think I have seen somewhere if UK Mail is used, this is deemed as 2nd class. You would have to confirm that though. So.. assuming it was posted 1st class and I understand that Saturdays, Sundays and Bank Holidays are also discounted for postal purposes. Once you have it I believe the weekends are counted. Your post implies you received it yesterday/today ?.

 

Actually, thinking about it. If you discount Friday, Saturday and Sunday. Theoretically the two days would be Monday and Tuesday. Therefore, as long as you havent acknowledged receipt before Today then.. no you dont have the full 14 days.

 

Hi All

 

 

This was the letter i was going to send MBNA, before i send it can anybody if this letter is ok.

 

 

 

 

 

 

 

Date 13.1.2009

 

MBNA

Senior Manager

Chester Business Park

Chester

CH4 9FB

 

Dear Sir/Madam

 

Re: Account/Reference Number

Postage Reference:

 

I write with regards to the above account with your organisation.

 

I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

Obviously if the agreement is improperly executed i would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document. Alternatively, if you have this document and are not prepared to send me a copy could it be arranged for me to view the original at a local branch.

 

I do not view this as an unreasonable request given that by supplying the document which i have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

I look forward to your reply and would ask for a response by 27/01/09

 

Regards

 

 

 

 

 

 

 

Gaz

 

Gazza, I have added a little bit to the letter, I think Godmother has also made a similar amendment to another copy you have posted up on another thread ?.

 

BTW, have a look at the reply I have given to dvd riley

[Guest dvdriley]

thank you Citizen , how could I prove that to a court. Do i need to acknowledge receipt, would that not give them the opportuinty of correcting the error. Perhaps I should wait for a terminatiion notice

[citizenB]

thank you Citizen , how could I prove that to a court. Do i need to acknowledge receipt, would that not give them the opportuinty of correcting the error. Perhaps I should wait for a terminatiion notice

 

Unfortunately I think this is one of those grey areas. Without the letter having been sent by a "signed for" service then there is no proof of the date you received most letters. Equally, there is no proof that they have sent them in the first place for the same reason:D

 

I am not sure whether it would be advisable to acknowledge receipt or not. This again is down to what the individual wants to achieve. BRW for instance on his thread re Nastybank has advised the bank of the "errors" in the Default Notices. However, I think in his case there were many other issues relating to the DN and Termination notices. I would suggest you try and track down a few posts from someone like 42man, creditcardmug, viscount stair and supasnooper, to name a few posters who seem to know what's what about DNs.

[Viscount Stair]

If the DN is definitely wrong, then the best advice is to keep quiet until after termination. Amex and First Direct fall into that category by stipulating a flat 14 days without allowing for the post at all. I think Egg have fallen into that category by missing out required information (Message to all Egg Loan defaulters - check your DNs!).

 

(I had the advantage here that I hadn't even started to know what to look for when I started getting mine, so I couldn't blurt anything out. )

 

If it is only arguably wrong (like here because it took longer in the post than they allowed for), then it's more of a grey area because you don't want to tip them off but, since it might be your word against theirs, you want to get it on record as early as possible that it arrived late.

 

All the CCA and the Interpretation Act talk about is the ordinary course of post (whatever that is). The timescales are based on analogies from practice directions and the CPRs.

 

I am not sure about the status of UK Mail S.

 

If UK Mail S is equivalent to first class post, then the CPR timetable means the notice is deemed to have been served on the Monday: 2 days after posting is a Sunday, which is not a business day, so deemed service is on the Monday.

 

Section 88 requires the date specified in the notice to be not less than 14 days after the date of service, so provided the notice arrived on the Monday, then it is valid because the date specified is exactly 14 days after the date of deemed service using the CPR analogy (assuming that UK Mail S is equivalent to first class post).

 

If UK Mail S is not the equivalent of first class post, the latest version of the CPR timetable does not apply and the DN is almost certainly invalid.

 

Deemed service only applies, unless the contrary is shown, so if you can "show" that the DN arrived on a day other than the Monday, then the date of actual arrival is what counts. If the DN did not arrive until after Monday (and you can "show" that), then it is invalid.

 

My call (though others might do things differently) would be to get it on the record but subtly that the DN arrived on whatever date it did arrive. One way might be to include a line in your CCA request if you have not already sent it.

 

"I refer to a Default Notice received from your organisation on [insert date] in relation to the above account."

I am sorry this is longwinded and heavier on theory than practice but I hope it helps.

[car2403]

If it is only arguably wrong (like here because it took longer in the post than they allowed for), then it's more of a grey area because you don't want to tip them off but, since it might be your word against theirs, you want to get it on record as early as possible that it arrived late.

 

Section 88 requires the date specified in the notice to be not less than 14 days after the date of service, so provided the notice arrived on the Monday, then it is valid because the date specified is exactly 14 days after the date of deemed service using the CPR analogy (assuming that UK Mail S is equivalent to first class post).

 

If UK Mail S is not the equivalent of first class post, the latest version of the CPR timetable does not apply and the DN is almost certainly invalid.

 

Deemed service only applies, unless the contrary is shown, so if you can "show" that the DN arrived on a day other than the Monday, then the date of actual arrival is what counts. If the DN did not arrive until after Monday (and you can "show" that), then it is invalid.

 

My call (though others might do things differently) would be to get it on the record but subtly that the DN arrived on whatever date it did arrive. One way might be to include a line in your CCA request if you have not already sent it.

 

"I refer to a Default Notice received from your organisation on [insert date] in relation to the above account."

 

The date of delivery of the DN is irrelevant - what is relevant is the date of postage, plus allowance for the 14 days stipulated and any extra days for any service of the DN.

[Docman]

If you can prove that delivery was on Monday or later (eg you do not have a Saturday morning delivery) then great. The time clock of 14 days will run from delivery and you have not been provided with 14 CLEAR days. Note the Act does not take account of business days, weekends or bank holidays. If you can prove the DN arrived on Monday or later, then you could argue it is defective.

 

If you cannot show late delivery, then the Court will look at the Interpreation Act since the period of 14 days is specified in the Consumer Credit Act itself. The court's rules which would deem service after 2 days will not apply. In that case, your 14 days are up before 26 Jan and therefore the DN would not be invalid on those grounds.

 

If you feel the DN is defective, then notification to MBNA is a tactical question for you to consider. Personally, I would be tempted to write and post on Saturday AFTER the last collection. That way it would be Tuesday at the earliest before MBNA receive anything. And the dears are so disorganised with so many 'Head of Customer Service' positions, that it will take them longer than a week to respond, by which time they will have issued their automatic termination notice.

[Guest dvdriley]

are weekends knocked off the 14 days.

 

Where can I find the exact regulations in the CCa. I have looked through but it only refers to 14 days. Does not say anything about clear days or allowing for postage

[Viscount Stair]

The date of delivery of the DN is irrelevant - what is relevant is the date of postage, plus allowance for the 14 days stipulated and any extra days for any service of the DN.

 

I was wrong to precisely the extent of one; the word used in the Interpretation Act is "proved" not "shown". I am sorry that my recall is not always total.

 

Interpretation Act - section 7 (References to service by post)

 

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

 

Deemed service IS trumped by proof of the contrary - ie the actual date of delivery.

 

However, there are burden of proof issues, so I hope the envelope was kept and I think it is important that the version of events is on the record as soon as possible.

 

Trying to establish the status of UK Mail S would be useful too.

[Guest dvdriley]

Thank, so in my case the DN was dated 13/11, pay by 27/11. Now I cant remebr when I received it but 14 days assumes I received it the next day

[citizenB]

Thank, so in my case the DN was dated 13/11, pay by 27/11. Now I cant remebr when I received it but 14 days assumes I received it the next day

 

 

13th was a Thursday

 

If the DN was dated 13/11 and remedy was by 27/11, then they most certainly havent allowed for any delivery so I would say you have a genuinely invalid DN

 

The weekend is only knocked off in respect of the postal service. ie if it was posted on a Friday they would reasonably have to assume it couldnt be delivered on a sunday IYKWIM.

[Docman]

Thank, so in my case the DN was dated 13/11, pay by 27/11. Now I cant remebr when I received it but 14 days assumes I received it the next day

 

I agree with CB. The DN in this case is invalid.

 

The Dn issued to gazza in the earlier post is valid unless the contary is proved as viscount has shown from the Act. So, as I said, if Gazza can prove there was no Saturday deliveries to the address, (because UKMail admit that they do not delivery on Saturday prehaps) then you can show the is invalid. Otherwise, gazza has a valid Dn from MBNA.

[Gazza112]

Hi Docman

 

Thanks for the info, on the note that may be a valid Default Notice.

What if after issueing them with the 31.16 complience letter they can't come up with the original document. Would the Default Notice they served be invalied.

 

Gaz

[sunflower99]

Does requesting a cpr 31.16 from a DCA mean that if they do not respond or fail to send you it or come to an arrangement for viewing the correct original document mean that you need to follow it through by takeing them to court?I can see that this is a excellant tactic of forcing them to prove whether they have an original agreement or not:D and if it goes to court the fact that you can say to judge you made every attempt to try and settle this dispute outside court to try and avoid wasting courts time:D !but would this request mean that that Gazza or anyone else requesting this CPR 31.16 force them in a position where they would be forced to take it further and issue a summons to bank for court action or can it just be used as a tactic to make it clear to banks that you know that they probably have not got an enforceable CCA and that if they take you to court you will be making them produce original!and you can still wait to see what DCA does next?and can still play the waiting game?

[Gazza112]

Hi Sunflower

 

Its really forcing the banks hand at the end of the day.

As in the first place the Banks don't know weather you would take them to Court. On the other hand if they haven't got an enforceable agreement there not going to take you to Court in the first place. They know they would not stand a chance in Court without the right paperwork.

 

Gaz