Being taken to court...please help I'm scared Re: MBNA.

[someone_else]

I take it the stage you are at is just after the AQ's have been completed and the case has been stayed for one month to allow you to settle, I take it the letter the court send you said something like if you have agreed to settle you must contact the court if you haven't agreed to settle you must complete the AQ, that you have already submitted. You can scan up the order to stay if you want (minus personal details) so we can see if you need to do anything or not.

 

You shouldn't need to do anything for the moment - after the stay is listed a judge will read your AQ's and hopefully order them to produce the documents you requested.

 

If the court orders them to produce documents, you should then have 14 days after that to submit an amended defence. (The full details will be on the order when the judge has made it).

 

I'm not sure why the court won't talk to you, my local court are happy to discuss my mums case with me?

 

You may be able to write a letter to the court stating that your husband is ill and unable to deal with the case and that he has authorized you to deal with the case, and get him to sign the letter (so it's from him).

 

It sounds like the case is waiting to go before a judge who should issue an order telling you what you need to do next.

 

For them to get any further they should need to produce:

- The Agreement (full copy that is readable)

- Default Notice

- Termination Notice?

- Notice of Assignment

- Statements

 

Whilst you are waiting for the judge to review the case, your best off gathering up what documents you have yourself and the dates of amounts of payments you have made, so when they do provide documents you can compare them to your records.

 

You may also want to read through several threads to get an idea of what's going to happen and to glance through the Consumer Credit Act and the revelant case laws to familize yourself with them.

[mollybe]

Thanks again for your reply someone else. Can anyone tell me if the above agreement is adequate response to a CPR31.14 request and also if the agreement is in order.

 

I am drafting a letter to the court today and would like to know if I should have further paperwork from the Claimant before I do so.

[someone_else]

I would say no - in the PoC they mention assignment, default notice and termination they haven't provided any of these have they.

 

If the agreement isn't readable and incomplete then I'd say it's not adequate try and ask for a true copy (or original) of the complete agreement including the terms and any other document referenced within it.

 

In your AQ did you include a draft order asking for them to produce the documents? If you did then when the judge reads the AQ's he should order them to produce documents.

[mollybe]

Hi again,

 

I did receive a default notice on 3rd July 2008 which also included an assignment notice and a termination notice on 21st July 2008. So yes I do have those.

 

I am trying in particular to get copies of all statements to ascertain if there are any unfair charges on them and also any PPI payments as we would never have taken insurance with my husband being retired.

 

I put in the directions to the court that I would like the judge to direct them to comply with CPR 31.14.

[someone_else]

Can you scan up the assignment, default and termination notices (minus personal details) and we can see if they are valid or not.

 

If they cannot produce complete statements then they cannot prove the amount owed, the amount in arrears, or claim that you have been making payments (or in fact ever used the account)

 

There's nothing much you can do until the judge makes an order or they supply the documents.

[mollybe]

Of course I will. Is there an easier way to do them other than using photobucket. I do have a scanner.

[someone_else]

Photobucket is the easiest way, jpg (pictures) can be read in your browser, if you make them pdf's or word documents people have to download them to read them (if they can read them). If you attach them to the forum they'll be to small to read.

 

If you use the direct link when posting them it makes them easier to read.

[mollybe]

Hi Again...Sorry for the delay in posting but I had a bit of a crisis over the weekend.

 

I have uploaded the documents I have received and would be really grateful if someone could take a look at them and advise me. They do look in order to me but I'm not sure.

 

http://i390.photobucket.com/albums/oo343/Mollybe59/MBNAtermination.jpg

 

http://i390.photobucket.com/albums/oo343/Mollybe59/MBNAAssignment.jpg

 

http://i390.photobucket.com/albums/oo343/Mollybe59/MBNADefaultNotice.jpg

 

http://i390.photobucket.com/albums/oo343/Mollybe59/MBNADefaultNotice2.jpg

Edited June 8, 2009 by mollybe
Wrong links

[GamekeeperToPoacher]

Hi Mollybe,

 

The DN is non compliant as, as far as I can see, they have NOT allowed for service and hence you have not had the 14 days you are entitled to (unless that it is one of the 7 day ones) Also being paranoid I would have removed the figures as Arrow could identify you through them.

 

 

GK

[supasnooper]

Brilliant.

 

Arrow Global have made a big mistake with the Default Notice in only giving you 14 days on the Default Notice. Read B_R_W's post on defective Default Notices

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

Further, they have also confirmed they have terminated the account.

[MadScouser]

At a quick glance at the default notice the notice is invalid on date, they only allow 14 days from the date of the default, not allowing for service. On checking the calendar, 3rd July was Thursday, meaning service would have been Monday(assuming 1st class post) 7th July, meaning only 10 days to resolve the default.

[mollybe]

Wow, thanks for all that. I would never have known. So what do I do now?

[mollybe]

Gamekeeper...how do I delete the amounts now please?

[GamekeeperToPoacher]

Hi Mollybe,

 

You need to go to photobucket and edit the pics in therre then save replacing original

 

 

HTH

 

GK

[mollybe]

Thanks gamekeeper I think I have edited out all the amounts now. That was quick thinking there.

 

My daughter-in-law has just been round and we have gone through all the documents together and this is what we have come up with.

 

The Agreement in the opinion of both of us is unreadable in parts because the writing is so small and also there are parts of words missing.

 

The data protection box refers to paragraphs 13 & 14 of the Terms and Conditions but they haven't sent them.

 

The PPI box is signed but not ticked in the small box, does this mean it has been taken or not?

 

The default notice is invalid on date as they have only allowed 14 days from the date of the letter, ie 17th June and not allowed for service (have I understood this correctly?) How many days should they allow for service?

 

They have not sent me any statements to allow me to check the amounts.

 

So, despite the fact that I requested all this information on 6th January 2009 by recorded delivery they have still not complied with my request. Is there anything I can do about this?

 

I am also a little concerned about this paragraph in their letter...

 

We note from our clients records that you have been making consecutive monthly instalments, we therefore believe that the grounds on which you intend to defend the claim are misconceived as the payment received is an admission to the above claim.

 

Do they have a point?

 

Sorry to ask for help again but this is all new to me and I just want to get it right.

 

 

 

 

 

Do it would seem that

[supasnooper]

Yes the default is defective. Read this post on defective Default Notices - B_R_W's post on DN's

 

"We note from our clients records that you have been making consecutive monthly instalments, we therefore believe that the grounds on which you intend to defend the claim are misconceived as the payment received is an admission to the above claim."

 

You would reply to such a comment that you are exercising your right to seek that a properly executed agreement exists for them to take you to court and then remind them of Lord Hoffmans speech -

 

"The real difficulty, as it seems to me, is that to treat Mrs. Dimond as having been unjustly enriched would be inconsistent with the purpose of section 61(1). Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law"

In short, if the bank got it wrong with the documentation, tough luck on the bank.

 

 

If you have sent a Subject Access Request off and MBNA have not complied then send them a Letter Before Action -

 

 

Your Name

Your Address

Your Town

Your County

Your Postcode

Date 2009

The Company Secretary

The Creditor

Creditors address

Creditors Town

Creditors county

Creditors postcode

LETTER BEFORE ACTION

Section 7(1) – Data Protection Act 1998

Account: XXXXXXXXXXXX

 

 

Dear Sir / Madam,

 

 

You have failed to comply with my Data Protection Act Subject Access Request dated xxth xxxxxxxxxx 2009.

 

I will remind you as to what documents I expect.

The following is by no means an exhaustive list but in the main this is what I require.

 

Please supply me with a complete list of transactions and charges relating to ALL accounting history with your organisation. Alternatively, a complete set of statements for that period will be acceptable.

 

Additionally, all records you hold on me relevant to this account, including but not limited to:

 

1. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to the account.

 

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company

 

3. Where there has been any event in my accounts history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response

 

4. True copies of any notice of assignment and/or default notice or enforcement notices that you may have sent to me, with a copy of any proof of postage that you hold.

 

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted.

 

6. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

8. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

 

9. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

10. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

11. A copy of all account statements for the duration of the agreement.

 

12. Please would you also advise me of the logic involved in any automated decisions taken by you about me pursuant to section 7(1) (d) of the Data Protection Act 1998.

 

13. A True copy of the consumer credit agreement section 77-79 of the Consumer Credit Act of 1974 for the account.

14. Any Other information relating to this account.

 

If you do not comply within the next 14 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice.

 

 

Yours Faithfully,

Print your name here

Do NOT sign, Send by recorded delivery

[mollybe]

Hi supasnooper,

 

I have not sent Subject Access Request just a CPR 31.14. Should I do that now or is it too late?

[supasnooper]

Probably a bit late to do a Subject Access Request but it may well pay dividends to do so.

 

Have read of what this CAG member received from MBNA at post 569 - http://www.consumeractiongroup.co.uk/forum/legal-issues/170484-fairbyblue-mbna-restons-court.html

 

A good SAR letter below -

 

 

Your Name

Your Address

Your Postcode

The Data Controller

Company Name

Company Address

Company Postcode

Date

Data Protection Act 1998

Subject Access Request s7(1)

 

 

 

Dear Sir/Madam

 

 

ACCOUNT NUMBER(S): XXXXXXXXXXXXXXX XXXXXXXXXXXXXX

 

 

Please send me the information which I am entitled to under section 7(1) of the Data Protection Act 1998 in relation to detailed occurrences relating to the above account number.

 

The following is by no means an exhaustive list but in the main this is what I require.

 

Please supply me with a complete list of transactions and charges relating to ALL accounting history with your organisation. Alternatively, a complete set of statements for that period will be acceptable.

 

Additionally, all records you hold on me relevant to these accounts, including but not limited to:

 

1. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to the accounts.

 

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company

 

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response

 

4. True copies of any notice of assignment and/or default notice or enforcement notices that you may have sent to me, with a copy of any proof of postage that you hold.

 

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted.

 

6. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

 

7. Specific details of the fees/charges levied by any other agency in respect of these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

 

9. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

10. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

11. A copy of all account statements for the duration of the agreement.

 

12. Please would you also advise me of the logic involved in any automated decisions taken by you about me pursuant to section 7(1) (d) of the Data Protection Act 1998.

 

13. A True copy of the original consumer credit agreement section 77-79 of the Consumer Credit Act of 1974.

14. If it is contended you do not hold such data before such a date, please confirm this by providing the Certificate of Destruction.

15. Any Other information relating to these accounts

 

I enclose the statutory maximum fee of £10 by postal order. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them, and also reclaiming the enclosed £10 Data Protection Act subject access request fee.

 

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable for the previous XX years.

Furthermore, such a request for specific information to confirm my identity will not deviate or inhibit the 40 days time limit allowed for compliance with my Subject Access Request.

Please note - If I do not receive all the data I have requested within the timescale specified above,

I shall seek a Court order obliging you to do so, together with damages at the discretion of the Court and without any further notice.

Finally, I would appreciate your Company's due diligence in this matter and look forward to receiving the documentation requested.

Yours Faithfully,

XXXXXXXX

Do NOT sign, enclose £10.00 postal order and send by Recorded Delivery

[mollybe]

Thanks again supasnooper. I think I will send it, I guess at this stage I have nothing to lose.

 

Do I send it to Arrow Global or Mortimer Clarke Solicitors.

Edited June 8, 2009 by mollybe
Typo

[mollybe]

Hi again,

 

I sent off the SAR on the 9th June. It was delivered on 19th June and I have a signature.

 

The only thing I have received so far is a letter referring me back to the letter dated 1st June and a settlement figure of £2500.

 

They are asking me to confirm in writing if this is acceptable withing 10 days which I have just realsied I am late replying!! There is no way I can afford this however, I am just about maintaining the token payments at the moment and even that is a struggle.

 

What do I reply to them bearing in mind they have not replied to my SAR

 

I have also received a letter from the court saying that the claim has been stayed until 27th July to alow the parties to continue their attempts to settle.

Edited July 13, 2009 by mollybe
Wanted to add another paragraph

[AndyOrch]

Hi Molly I trust you are well?

 

Ok the above smacks of settlement to me and as so I would respond to their letters stating that you are not in a position to do a F&FS but would be prepared to make am arrangement to pay monthly (or continue to pay the payment you are already maintaining) in provision that they Discontinue the claim.

Chasing around for response to S.A.R IMHO is futile and could go on forever and a day.They want to settle one way or another so barter with them.

 

Regards

 

Andy

[mollybe]

Thanks for the reply...I am very well considering. How about you?

 

I will send a letter to them as you suggest and tell them I can unfortuantely only afford the payments I am making at the moment as that is the truth.

 

Can you also look at my other threads if you have the time, particularly the one you were advising me on regarding the original RBOS one as I am stuck again! I am so sorry to bother you again but yu are a huge help!

[mollybe]

Hi again,

 

I have just received a letter from the solicitors with a settlement. They are suggesting a monthly payment of £3.00 per month, which is great, but they want us to agree to a voluntary charge on the house!!!

 

In return the claim will be stayed...how kind of them!

 

Can anyone please help with with a reply?

[AndyOrch]

Hi Molly

 

Well in that case proceed with the case you will get a similar payment if they judgement, yes you will have a CCJ but you wont have a Charging Order or you may even win your Call!!

 

Regards

 

Andy

[natalie]

Hang on! Havent you got a faulty DN and a termination notice?

 

In which case they are only entitled to collect the arrears shown on the DN, not the full amount!

 

I wouldnt agree to any f and f.