Muffintop v mbna

[the_shadow]

Tx shadow, can the cpr route still be undertaken with you non paying? i caved in a couple of months ago and paid arrears under pressure and have since told them that it was due to heavy harassment and i will be paying no more.

i have only sent cpr 3.6 letter is there a 2nd letter i dont know about that needs to follow it up?

after nothing back from a cpr is it a letter b4 action next? and this would leave the onus to prove non enforceability on me.... this is where i would like to see if anyone else has done this and sub to their thread, im willing to go for it but want to weigh up all the pros and cons b4 doing so

 

anyone?

 

The CPR route can be done anytime.. paying/non-paying

 

Ok this is the main thread, which you've probably already read but it doesnt hurt to post it again. the first and second letters and all the information to fill in the form is contained in the first 3-8 posts of the thread....

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

This is the thread of so far the only one I know of that has gone to court with the N244 to get disclosure.. he won and barclaycard were forced to send the application to him.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

 

I think your getting confused on the non-enforceability issue, the CPR route will get you sight of the document but thats it. Whether its enforceable or not is a courts decision. But having seen the application you can make a more informed decision.

 

S.

[Muffintop]

Shadow, thanks v much I will reread these two threads like you say there is a lot of information to digest, but bottom line is the solicitors that were acting for me are not pushing forward in the way i believed they would. prob is if i take it foward and get a resolve i will have to pay them an exit fee now, fear is a terrible thing and i thought i was taking a less stressfull route by letting them deal with it............stay with me its usefull for me and the others subbed here

[the_shadow]

Shadow, thanks v much I will reread these two threads like you say there is a lot of information to digest, but bottom line is the solicitors that were acting for me are not pushing forward in the way i believed they would. prob is if i take it foward and get a resolve i will have to pay them an exit fee now, fear is a terrible thing and i thought i was taking a less stressfull route by letting them deal with it............stay with me its usefull for me and the others subbed here

 

This is a self help site Muffintop, we're all here to help each another, I need support and help just as much as the next guy, I just might be further down the line or have a different take on things

 

In my humble opinion and at the end of the day, you are paying the solicitors, if they are not acting the way you want, I would instruct them to take a more forceful line, they are there to do your bidding and advise, not to take complete control.

 

S.

[Muffintop]

tnx Shadow, take on board your comments, I will be speaking to them this week, tied myself up in a no win no fee solicitor and because of that feel a bit vulnerable as to them making the decisions, they obviously are not going to court unless their balance of probabilities is that they win...

[sunflower99]

Hi Mufintop

Sorry to hear your solicters giving you worries,I dont know much about soliciters and how they operate as until i got Restons set on me i had very few dealings with solicters but as shadow says surely in the end it is up to them to either do what you wish or if they feel in the end they cant help you or are not willing to take the risk of takeing your case to court against MBNA in case they loose money over it they will eventually bow out and just leave you to cope on your own again which i know will be distressing and frustrating for you but at least being a no win fee soliciters they will not be able to charge you anything to look into it and you will not have lost anything as you have still been learning more and more from this site and if it means the worse that can happen is you will be back to square one again at least you know you have got Cag to advise you and give you moral support.I am beggining to think that a lot of Caggers on here know a lot more about the ins and outs of consumer credit act than many soliciters .

[the_shadow]

It might be an idea to read through the agreement you signed with the solicitors to see if there are get out clauses even if you dont enforce this and continue with them... after reminding them you want more action and less talk about complaining to the FOS:( and waiting 8-12months for a response.

 

S.

[Muffintop]

got this from solicitor today so at least they are proceeding by the look of things, will know more tomorrow. Dont know what cfa or ate is though?

 

Further to our recent correspondence I have discussed that matter with

He has confirmed that we have offered the lenders the

additional opportunity to provide a copy of the agreement because if we

issued proceedings immediately the entire claim would be dismissed if

they did produce documents and this may have adverse consequences. Our

position would be different if there was more then one claim per

agreement (i.e. PPI as well) as it would not strike out the entire claim

if they then produced the agreement. We wish to protect our clients in

the litigation process and also we have to demonstrate that the claim

satisfies a high success threshold in order to obtain ATE insurance (and

therefore proceed on a no win no fee basis) - hence, we still consider

it sensible to have sent the duplicate request.

 

As the lenders have failed to deal with s77/78 and the subject access

requests to produce the signed agreement - we shall proceed with a CFA

and obtain ATE insurance after 18/5/09.

[the_shadow]

got this from solicitor today so at least they are proceeding by the look of things, will know more tomorrow. Dont know what cfa or ate is though?

 

.

 

I used my friend google ;-)

 

ATE, after the event insurance

After the Event Insurance is a type of legal expenses insurance policy that provides cover for the costs incurred in the pursuit or defence of litigation. The policy is purchased after the cause of a legal dispute has arisen, which is why it is called as "After the Event" insurance. It is also known as ATE insurance, Litigation Insurance, Conditional Fee Insurance, Post-Event Insurance, AEI or LEI Insurance.

ATE insurance can be purchased for nearly all areas of litigation and is frequently used in both civil and commercial disputes. Insurance can be purchased for cases requiring modest limits of indemnity, through to big ticket, heavyweight litigation requiring over £10m of cover for legal costs.

Payment of the ATE premium is generally deferred until the conclusion of the case and contingent upon success. In addition to which, in this jurisdiction, ATE premiums can be recovered from the other side under the “loser pays” costs principle. ATE insurance is therefore equally relevant to private individuals, impecunious or insolvent clients, SMEs or large blue chip companies.

 

and CFA's

 

Conditional Fee Agreement, commonly known as 'no win, no fee'.

S.

[Muffintop]

wow thanks Shadow for taking time to research that for me, still a little unsure if I will be asked to pay the insurance or if I end up going to court with my other creditors that iv kept would I as an individual be able to take out some insurance against costs, this is an interesting thought and if so minimises the risks of pushing forward for a result in court...

[the_shadow]

wow thanks Shadow for taking time to research that for me, still a little unsure if I will be asked to pay the insurance or if I end up going to court with my other creditors that iv kept would I as an individual be able to take out some insurance against costs, this is an interesting thought and if so minimises the risks of pushing forward for a result in court...

 

Might be worth posing the question in the legal forum, I would have thought to get insurance in litigation you must be a solicitor regulated by the SRA.

 

As far as you paying for insurance, no I dont think thats the case, the CFA should mean you pay nothing, the solicitors take the risk, hence the reluctance to get involved in litigation until they are sure there is no other way or are certain they have followed all necessary procedures before hand.

 

If you ask the same questions in the legal forum you'll get more enlightened advice

 

S.

[underdog13]

Think the insurance policy actually pays for itself.

[Muffintop]

Hya guys, had a letter from MBNA stating that they are applying for a charging order on the house (know sunflower had similar threats) as they know we are homeowners.. thought only court could grant this and once they take it to court surely no ccj can be issued or charging order unless they show me the cca? bit concerned over this one

[the_shadow]

Hya guys, had a letter from MBNA stating that they are applying for a charging order on the house (know sunflower had similar threats) as they know we are homeowners.. thought only court could grant this and once they take it to court surely no ccj can be issued or charging order unless they show me the cca? bit concerned over this one

 

Its all in the phrasing, if they say they are taking you to court and if judgement is gained they will request a forthwith charging order I think they can get away with the threat

 

If they state they are taking you to court for a charging order then that in my opinon is dodgy ground.

 

If your unsure you could post the letter up for others to comment?

 

But as you've stated, no CCA s78 response, no legal action.

 

S.

[r&b]

nope debt still exists they just cannot force u to pay.

 

As already stated they are correct that the debt doesnt go away and will stay on your credit record for 6 years after the default.

S.

 

this has been bugging me. it was in answer to muffins question: "if a CA is found unenforceable in court isnt that the end of the debt." seems the standard answer on the forum is as above. but BRW made a point on another thread about the creditor being deemed to have made a gift. so does the following mean that indeed muffin was rite and it shud not stay on cred file as its deemed a disposition or gift?

sorry muffin if this is no longer relevant its been nagging me!

 

the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in sec. 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

[angel_1]

hiya muffintop

 

im back, after helping a friend win her case after facing eviction and so just wanted to say hiya and will catch up with your thread later

 

if nothing else ive learnt this past year, is that research and asking out questions is the fastest way to gain knowledge and confidence

 

will catch up with you laters though

 

keep positive laters angel x

[Muffintop]

thankyou R&B this is relevant as it means that there is some inconsistencies on opinion, I have heard banker say it could be classed as a gift before also. would like other opinions onthis point also.

[Muffintop]

The letter states that they know we are homeowners and they MAY PURSUE LITIGATION AND A CCJ WHICH may result in charging order.

 

my opinion is its a threat and i should just write back and say show me the cca... am I correct.

[Stubie]

I'm late!

 

So sorry, just came on this today.

 

Subbing with interest and trying to catch up

 

All the best:)

 

Stubie

[the_shadow]

The letter states that they know we are homeowners and they MAY PURSUE LITIGATION AND A CCJ WHICH may result in charging order.

 

my opinion is its a threat and i should just write back and say show me the cca... am I correct.

 

Sorry Muffintop, didnt see this until it got replied again.

 

I think your correct, may... if.... but...all lovely words to negate the actual threat that follows..

 

Could be time for a put up or shut up letter? Depends on how brave you feel, everyone's situation is different tho.

 

S.

[Muffintop]

Yep Im Brave Enough I Just Want Closure One Way Or Other. Poc Being Drafted By Solicitor Now So Will Know Soon As Get A Spot Allocated At Court... I Will Update With Copy Of The Draft As I Know This Is Something I Want For Future Use On My 2nd Mbna Cca Request Which Is Now In Full Flow.

[Stubie]

Yep Im Brave Enough I Just Want Closure One Way Or Other. Poc Being Drafted By Solicitor Now So Will Know Soon As Get A Spot Allocated At Court... I Will Update With Copy Of The Draft As I Know This Is Something I Want For Future Use On My 2nd Mbna Cca Request Which Is Now In Full Flow.

 

A thought for all.

 

The CPR 31.16 request, and subsequent litigation, if required, will produce the documents that purports to be the executed agreement.

 

If the document is considered unenforcible, then proceed to court to have a declaration of unenforcibility.

 

Assuming this is successful then, include in the POC that any and all default notices be withdrawn, where issued against the aformentioned agreement.

 

The rationale is that, upon declaration of unenforcibility, the terms of the agreement are immdiately and similarly declared unenforcible. As the processing of data is conditional within the agreement and becomes unenforcible at the order of the court, then the data subject denies such authority under schedule 2 of the Data Protection Act, and, moreover, s10 of the same act.

 

As the right to charge costs to the account is also a term, and, duly, unenforcible, then the creditor can evidence no right to apply charges to the account.

 

The agreement so declared unenforcible, being the executed agreement, must have been unenforcible at the time of inception so there has never been any right to apply charges, therefore these should be refunded under the unjust enrichment determination ( Wilson Vs First trust). The capital expended by the debtor, would be discharged against the interest and charges accrued with the net balance refunded.

 

As the debt has been discharged then the creditor claim to "legitimate interest" has no foundation (the true debt is discharged).

 

Once the court declares unenforcibility then they have no option to comply or they would risk ruling at odds to the primary ruling of unenforcibility.

 

OK, rip it to shreads Guys n Gals

 

Stubie;)

Edited May 28, 2009 by Stubie
spelling (again)

[Stubie]

You might want to have a look at this thread too.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

[underdog13]

Best of luck with that, MT:)

[Muffintop]

One word, I swing back and forth with this cpr request.. I understand it to be risky as your are liable for any charges should you loose and the onus is on you to prove the debt unenforceable.. i really cant get my head around whether its a good thing or bad...

[the_shadow]

One word, I swing back and forth with this cpr request.. I understand it to be risky as your are liable for any charges should you loose and the onus is on you to prove the debt unenforceable.. i really cant get my head around whether its a good thing or bad...

 

No not quite correct, the CPR is to get sight of the document, at the hearing you will need to show you have exhausted all the methods of getting the document prior and that the other side have failed to adher to CPR pre-court protocols, namely they have ignored your letters or not responded properly.

 

Nothing to do with unenforceability, this is JUST getting sight of the document that barclaycard/crapital1/mbna are so keen not too show you

 

S.