MBNA raise court action over invalid CCA

[volvo62]

MBNA have decided to take me to court over my claim their CCA is invalid.

 

The reason this started was because they increased interest from 12% to 34.9% as per the regulated CCA (their words not mine), I got a copy of the CCA and found it was not executed and did not contain most of the required data,there are plenty posts with the same agreements on here.

 

The case calls in Scotland,I have offered settlements of upto 60% of the debt all refused,

 

I dont know how to proceed with this but now Im on the legal track,any help or advice will be appreciated.

Edited March 7, 2009 by volvo62

[42man]

I'll move this to the 'Scotland' forums Volvo....and get a friend to look in on this, i'd suggest a CPR request in the first instance if this was England, but i'm not familiar with the Scottish Civil Laws.....be patient...

Edited February 27, 2009 by 42man
typo

[rory32]

Roughly how much is the claim against you for? Don't give an exact figure.

 

What are the details of claim against you?

[volvo62]

Hi, Its a fair bit its an ordinary action.I lodged form 07 notice to defend £75.00 cost today,they have not mentioned the consumer act in their claim.just the usual customer opened an account and failed to keep to terms.

 

I stopped paying about 3 months ago when they refused offers and request to lower interest rate.they stated repeatedly they have a valid agreement and then went on to the harras me with letters/threats every 3 days.

 

Its also being investigated by ombudsman and the information commisioner but they are ignoring that as well

Edited March 7, 2009 by volvo62

[rory32]

And what are the details of claim against you (this would be stated in the initial writ)?

[volvo62]

removed because mbna are monitoring

Edited April 25, 2009 by volvo62

[rory32]

So having stated your intention to defend, when do you need to get your initial defence in by?

 

Also are you in a position whereby you would qualify for any sort of legal aid? I ask this because ordinary cause actions are difficult to defend as a party litigant and if you are going to do so you will require to do a lot of reading.

[volvo62]

Rory,

 

Thanks for looking at this

 

If I understood the sherrif clerk I have to lodge defence within roughly 2-3 weeks,the time table has not been set yet.

 

I doubt I would get legal aid but will investigate this,I dont have savings,was getting a loan off my pensioner father to offer settlement,which was offered as a good will payment.

 

I had an email tonight from MBNA stating they are prepared to accept my offer of just over 50% but would still leave default ect on file,this sticks as default is based on the invalid cca.

 

MBNA already told me in their lovely manner that I was a mug to defend it because legal costs would cost up to 10k ,MBNA have been particularly nasty through all this,which makes it even harder to work through.

[rory32]

I doubt I would get legal aid but will investigate this,

Legal aid falls into two categories. The first of these is advice, the second is representation. The criteria for qualifying for free advice is lower than that of being represented, so even if you don't entirely meet the criteria for legal aid you may be able to get some free advice from a solicitor.

 

I had an email tonight from MBNA stating they are prepared to accept my offer of just over 50% but would still leave default ect on file,this sticks as default is based on the invalid cca.

 

MBNA already told me in their lovely manner that I was a mug to defend it because legal costs would cost up to 10k ,MBNA have been particularly nasty through all this,which makes it even harder to work through.

This is typical of MBNA. They are very aggressive in their approach. This after all is the company who believe that UK law does not apply to them as they are American owned

[Monty2007]

Hi Volvo

I am defending an ordinary cause action in Scotland against Amex who are being represented by BTO.

Following submission of Form O7 you will receive a timetable from the clerk that will give you dates for the submission of your defence. The process is very different than in English jurisdiction and in some ways more in favour of the defender in that it is difficult to get a strike-out before evidence is presented (proof) or at a legal debate.

I have my options hearing in a few weeks. There is a Civil Litigation book by Hennesey that I would recommend to you if you defend. The writ from MBNA looks very odd to me, I have now seen a few and it would be wise to defend, note however that they can make substantive adjustments to the initial writ during the adjustments phase (4 weeks).

The writ you have should contain numbered paragraphs (condescendence) that you will have to respond to, failing to do so will mean that you admit them. You then have to draft a plea-in-law which is very standard.

The process is:

Defences

9.6. (1) Where a notice of intention to defend has been lodged, the defender shall (subject to paragraph (3)) lodge defences within 14 days after the expiry of the period of notice.

(2) Subject to rule 19.1(3) (form of defences where counterclaim included), defences shall be in the form of answers in numbered paragraphs corresponding to the articles of the condescendence and shall have appended a note of the pleas-in-law of the defender.

Implied admissions

9.7. Every statement of fact made by a party shall be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party shall be deemed to have admitted that statement of fact.

Adjustment of pleadings

9.8. (1) Parties may adjust their pleadings until 14 days before the date of the Options Hearing or any continuation of it.

(2) Any adjustments shall be exchanged between parties and not lodged in process.

(3) Parties shall be responsible for maintaining a record of adjustments made during the period for adjustment.

(4) No adjustments shall be permitted after the period mentioned in paragraph (1) except with leave of the sheriff.

[rory32]

I would also suggest that you have a read of Monty's thread volvo. It should hopefully help you quite a bit in understanding the process and the style of defence you should be lodging.

 

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/138263-threat-legal-action-brechin.html

[Monty2007]

I would also suggest that you have a read of Monty's thread volvo. It should hopefully help you quite a bit in understanding the process and the style of defence you should be lodging.

 

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/138263-threat-legal-action-brechin.html

 

Thanks Rory. Do you have any understanding with respect to a note lodged under rule 22.1 (note of basis of preliminary plea) in an ordinary cause action? Given the response I have from the other side I am considering this option since a rule 22.1 note causes the initial pleas to be maintained, while not lodging one means the opposite? In any eent it seems to do no harm, I will need to ask the Clerk the format in which these are presented.

[volvo62]

Thanks guys, I was feeling like all is lost,but now will get the book from the library,thanks monty.

 

Rory your right about MBNA and their attitude.

Edited March 7, 2009 by volvo62