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

[mollybe]

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[mollybe]

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[mollybe]

Sorry to bump again..please can anyone help?

[mollybe]

Can anyone help please?

[mollybe]

Bump

[mollybe]

Hi

 

I made a mistake in my last post, the stay is in place until the 7th May not the 4th.

 

I have written to the sols and asked what settlement they suggest, just to give me a bit more time to get some advice.

 

I really want to wite to them and ask if they really intend to go to court with the docs they have sent me. Not quite like that obviously, but to let them know I know what they have is unenforcable. On the other hand I don't know if it is wise to tip my hand so to speak.

 

I could really do with some more advice please if anyone can help.m I am running out of time.

[miss muppet]

Mollybe, do nothing sit back and wait and hit them with the evidence in court.

[mollybe]

Tnaks for that Miss Muppet but I have 2 problems with that.

 

Do I really have enough to win in court anyway and with my medical conditions going to court will be difficult, if not impossible. Some days I am unable to even get out of bed.

[miss muppet]

Sorry to hear that Molly, maybe someone could go with you. Presumably its been transferred to your local court, so could you ring up and explain the situation to the court manager and ask what to do in these circumstances.

[mollybe]

Thanks again miss muffet, but there is no=one really who could go for me. This is why I am trying to get my facts right on the DN CCA etc so that I can maybe negotiate some sort of settlement, bit I don't know if this would work or not.

 

If I have an invalid DN which then makes the termination notice agreement invalid, what is to stop them just issuing another DN?

[miss muppet]

Hi Molly, my advice with the invalid DN is to tend to keep this to yourself until you get to court. In my case, they didn't know until they tried to get an SJ against me that I had a prior dated (by one day!) DN which was different to the one they supplied with their witness statement. You also need to have a look at the clause situation i.e. when they point to the fact that you have broken this clause by defaulting, look to see whether this matches the so called clause on the CCA. I was able to say to the DJ because they didn't even have an application form that I hadn't broken this clause because there was no such clause!!

 

Wonder if one of the bigwigs of CAG could attend with you or take this on for you like PT altho I know he is horrendously busy!

[mollybe]

Thanks again miss muppet. I really don't know what to do, we are now on the final stay until 21st May and the sols have written to me asking me to propse a settlement.

 

I simply don't think my health would allow me to go to court. I just need to know if there is any way around this

[miss muppet]

Mollybe, I'm not going to nag you as you must do what you feel is right for you but I have been back through your whole thread and you really do have a good case to get this thrown out. You say its your OH's account and you also mention your daughter-in-law, could you not ask her to go into court with you, I know I did this with my OH, he certainly wasen't up to speed on case law but it helped having him there for moral support. In usual MBNA/Arrow Global fashion they have messed you about and not provided you with the information you requested. I was so glad in my case when their solicitor kept blarting on and saying that the money was owed and the Judge just kept quietly stating "yes, but you haven't got a signed agreement have you?" at which she replied "Not that I have seen but it doesn't alter the fact the money is owed" Priceless and they had to pay me £200 costs! I wouldn't get bogged down with charges and PPI, the main thing is unenforceable agreement and invalid Default.

I was lucky with my Judge admittedly as he knew I had had BC when I got into trouble but I am sure if the court knows of medical history of you/husband they will be more inclined to be helpful.

[mollybe]

Thanks Miss Muppet I am sorry for being so wishy-washy and if I was ever goin g to court it would be with these people.

 

They constantly harrassed us on the phone and one call in particlar was pretty abusive. I wish I had a transcript of that call!

 

You areright about my daughter-in-law and I guess there is also my son, I would just have to bring them up to spped.

 

So you really think I have a case? I think the aggrement they have sent is not as it should be, do you have any thoughts on it.

 

Also, one point that I cannot get my head around. If I rely on the DN in court, what is to stop them just sending me another DN?

 

If I knew I definately had a case then i think I might try to take these people on.

 

Why can't you live a bit nearer to me??

[miss muppet]

Aw bless, I wish I did too. Right had a look at the "agreement", if thats all they got, doesen't look like its got all the prescribed terms on it and its illegible. Default Notice is wrong on 2 counts, should be in the original creditor's name and insufficient time period. Going to post you a link which I have found incredibly helpful which my friendly TS sent me. Will hunt around for some other stuff too.

[miss muppet]

OK, here's the one, Post 69 is the information you should find helpful:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/196114-miss-muppet-mbna-costs-4.html

[miss muppet]

Ok, its also wise to have notes on the various sections of the CCA which are applicable and a copy of the Consumer Credit Act can be found on CAG Statutes Library and the sections are as follows:-

Section 78(1) Section 78(6) (1)(a) Section 60 Section 61(1) Section 127 (1),(a) Section 127(3) (3) Section 62 1,2 & 3 Section 65(1) Section 106 Section 113 . Think there is also a copy of Consumer Credit Agreements Regulations 1983 Statutory Instrument SI 1983/1553 Section 6 Signing of Agreement.

 

Then there is the lovely quote from Francis Bennion, the drafts person of the Consumer Credit Act 1974

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well argued article (30th August 2003) on Wilson v First County Trust Ltd (2003)UKHL 40 (2003)4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable and that the court should not have the power to relieve it from this penalty. Nobody queried this and it went through Parliament without debate. I am glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed."

[mollybe]

Wow thank you again Miss Muppett, that info has been hugely helpful.

 

Supposing I do decide now to fight this in court what do I do now.

 

The sols want me to amke a proposal for settlement in writing and I haven't got as clue as to what to write.

 

Sorry to be such a pain.

[vint1954]

Hi mollybe. Hope you dont mind me poking my nose in so late in the proceedings.

 

Don't be afraid of the court. It is usually just a room with a meeting table in.

 

The Default Notice is obviously the key for you as already mentioned.

 

The DN should be issued by MBNA, before they can go on to either demand the ballance in full or terminate the agreement. That is the starting point for the argument. If MBNA did not default you and then sold the agreement to a third party, then MBNA unlawfully rescinded the agreement and should not have sold it.

 

The third party that issued the DN should not have done so, as you do not have a regulated agreement with them.

 

There are a few quotes from the high court below, relating to default notices. These should be useful in court or in your letters to the solicitors.

 

 

"Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119"

Hope I am not repeating earlier comments.

The Agreement should be dealt with as illegible.

Did you receive a DN from MBNA?

[vint1954]

Also, one point that I cannot get my head around. If I rely on the DN in court, what is to stop them just sending me another DN?

 

??

They cannot. The agreement has ended.

 

Arrow should not have issued a DN.

[mollybe]

Hi Vint..no of course I don't mind, I am grateful for your help.

 

The default notice I posted from Arrow is the only one I have received.

 

So it should have been MBNA that defaulted me? I guess that makes sense as I defaulted with them not Arrow.

 

I just don't know where to go from here...The sols are sending me letters to ask how I propse to settle.

[vint1954]

Yes, MBNA should have sent a DN before terminating or selling your agreement.

 

If you are in the mood to argue, then you can go on a different tack. I think the last advice from andy was to sit it out.

 

I will pop back later.

[vint1954]

You could check the screen dump from MBNA to see if they have sent a DN.

[mollybe]

Hi again everyone.

 

Well, I have spent the last few days going through every single piece of paper relating to this claim. I have also read almost every thread on MBNA I can find just to educate myself which has helped enormously.

 

With regards to CCA. I posted all the documents in posts 114/115.

 

Looking more closely at them I have what they say is the agreement with name address and 2 signatures on it.

 

Then another 3 pages which is is a replica of the aggreement, but enlarged. It has no name, address or anything else to identify it as my husbands, apart from his surname and card number written across the top by hand.

 

I am a bit confused now as I seem to have 2 agreements,both essentially the same one with signatures and name address and another with nothing to identify it to anyone except for handwritten surname.

 

Could they get away with saying that the 1st one is eligle but contains all the prescribed terms so they have sent a 2nd one which is legible.

 

Very confused but maybe this makes the agreement okay after all.

 

3rd July 2008...DN sent by Arrow Global with reference to MBNA account. This is just for arrears.

 

3rd July..2008 Letter from Arrow informing me that MBNA have assigned the account to them. Nothing about assignment from MBNA and dated same as DN

 

21st July 2008 Terminaton Notice again from Arrow not MBNA.

 

23rd Oct 2008 Letter from Mortimer Clarke saying they have been instructed to act on behalf of Arrow Global.

 

So my questions are:

 

Can they get away with these 2 agreements as they have sent me a legible on make up for the illegible one. I am still a little confused as to 'prescribed terms' but it looks to me that they are all on the illegibel agreement.

 

Why have the DN, TN and NoA all been sent my Arrow Global and not by MBNA, I have none of these docs from them.

 

What are the ramifications of this?

 

Incidentally, I have not received copies of the DN, TN or NoA in response to my DSAR. These are the originals which I have kept filed away.

 

The final stay is now in place until 21st May and I really need to know do I have enough evidence to have a chance of winning in court, if so, what.

 

And more importantly what do I do now, they are still waiting for me to make a settlement.

 

I am really sorry to be such a pain, but i desperately want to get this right.

 

Please can anyone help?

[mollybe]

Hi Vint,

 

The only screen dump I have is one that looks like an on-line application form. I have no comms log.

 

All I have been sent in response to my DSAR is the CCA's I have posted in 114/115 and statements. Everything else is from my own records.