MBNA..i need help

[nancy D]

so it is looking like they have my contract!!!!

[exchange]

Hi nancy D, I have not been taken to court, complicated for them as I am not in the UK:), but I would SAR them along with everything everyone else is telling you to do, although I know from the site that there is a way of getting them to disclose the documents they are intending using in court against you which would presumably include the 'agreement'. Someone with more experience will come along with more advice.

[Stubie]

Hi r&b

what is a NOA???

 

This is a notice of allocation - it is the document which allows the DCA the authority to collect the debt

 

No i have not sent a Subject Access Request.

 

I would apply for one now, it will take a while to get back so the sooner you apply, the better. Once you submit a defence, the case will be issued to a local court, which will take time and you can apply for a further stay on proceedings to allow this (and any other) information to be provided. If there is an agreement of any sort, then this may flush it out - not guaranteed. It will also show the court (if you actually get there at all) that you have tried to get a copy of the agreement and weaken the claimants case accordingly.

 

Particulars of claim:

The claimant claims payment of the overdue balance due from defendant under a contract dated on or about 19.08.1996 in the sum of ****inclusive of interest to the date of this summons at 8% per annum from 03/08/09 to 27/08/09.

 

PARTICULATS a/c no:*********

 

DATE ITEM VALUE

03/08/2009 Default Balance *****

 

Together with:-

Interest pursuant to s69 county courts act 19 at the rate ***.**pence per day to the date of jugement or sooner payment.

 

This is all standard fare with a MCOL claim

 

Please let me know if you think i have no chance with this????

 

I would suggest that you have a very good chance of success. If there is no agreement, or an unenforcible one, then the claimant's case is fundamentally flawed - this is just another bullying tactic.

 

If they go to court, they will need to produce the original document. Failure to do so leaves them open to s127 (3) declaration. Once ou defence is submitted, you will need to apply for standard disclosure under CPR. This will show you the details of their case and any evidence they propose to present to the court.

 

Then we will see if they have a case or not

[exchange]

There you go nancy D, Stubie was writing at the same time as me!

[Stubie]

There you go nancy D, Stubie was writing at the same time as me!

 

Great Minds

 

Worth bearing in mind Civil Procedure 32, Para 13.1

 

Other documents

 

13.1

 

Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing.

 

 

If they can't show you the original prior to trial date, they can't admit in evidence, according to CPR.

[r&b]

Hi r&b

what is a NOA??? No i have not sent a Subject Access Request.

 

Particulars of claim:

The claimant claims payment of the overdue balance due from defendant under a contract dated on or about 19.08.1996 in the sum of ****inclusive of interest to the date of this summons at 8% per annum from 03/08/09 to 27/08/09.

 

PARTICULATS a/c no:*********

 

DATE ITEM VALUE

03/08/2009 Default Balance *****

 

Together with:-

Interest pursuant to s69 county courts act 19 at the rate ***.**pence per day to the date of jugement or sooner payment.

 

Please let me know if you think i have no chance with this????

 

ok so u havent had any relevant documentation on which they are basing this case other than a s78 compliant, unsigned agreement.

i would get the AOS done so its one less thing to worry about.

they dont mention it is a regulated agreement which as its for a CC it undoubtedly is, thereby disallowing them s.69 interest for a start.

i would still do the SAR if u have a spare £10, a gd example is in post 14 here from palomino:

http://www.consumeractiongroup.co.uk/forum/legal-issues/192486-court-claim-o-draft.html

 

send it to the regstd address of the original creditor.

i would think a look into CPR31.14 as you are now in legal proceedings would be in order for disclosure. see this thread by SX20:

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

 

a SAR gives 40 days in which to comply, i would allow 7 days for the CPR request as you require the documentation in order to file a decent defence to the claim.

by standing up and showing u can deal with this u may find its them that doesnt fancy the fight.....but u will have to push them to find out...

 

added: who is the named claimant ?

Edited September 2, 2009 by r&b
added

[r&b]

have a look at this thread in particular post 27 onwards here too, note Rhia states to ask for the Deed of Assignment rather than the NOA (i understand Rhia had a very good barrister onside so may be worth taking note):

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/120057-cabot-test-case.html#post2385494

 

i seem to remember paulwlton on this site also having had problems in this vein so maybe do an advanced search under his name to see if there is anth helpful there too.

 

steven4064 has some insights here, post 125 onwards as to the Law of Property Act 1925:

http://www.consumeractiongroup.co.uk/forum/legal-issues/197600-more-problems-link-3.html#post2385747

[nancy D]

Many Thanks your all being very helpful and would you believe a lot is sinking in.

 

r&b the named claimant is MBNA Europe BAnk Ltd.

 

Also is there a template for subject access request and if so..would i change the 40days to 7days would i state that i needed it for my defence or just leave it at requiring it in 7days

(hope this makes sense???)

[r&b]

hi nancy,

template link is in post 56 as i said from palomino.

no SAR requires 40 days u cant chge that...

read the CPR 31.14 thread. u can give them 7 days as that would surely be deemed reasonable time given the constraints of the court.

[nancy D]

sorry i see it now thanks

[nancy D]

just spoke to a solicitor to find out how much it would be to defend and he reckons 2000. I didn't realise that you still get a bad credit rating if you win lol!!! Well i am blonde!!! Solicitor advised me to speak to there solicitors is this a good idea???

[r&b]

if u wish to go down that route, as i understand it, you really need a solicitor who is expert in consumer law. you could also try direct access barristers as if u do a bit of the work urself, the costs will probably be similar from what i have been told.

Public Access Directory

 

you could also google and see if there are other options. its your choice in the end.

 

what did he say was the point in speaking to them?

 

you can always start this urself and bring in help at a later stage if necessary.

Edited September 2, 2009 by r&b

[r&b]

basic story is nancy,

u submit ur AOS online

u send a letter under CPR31.14 requesting disclosure of the docs referred to in the Particulars of Claim.

u send a SAR unsigned/disguised sig with £10 postal order

both letters recd del.

u submit a defence within 33 days of the date on the claim form and wait and see what they do next.

that about sums it up for now in my opinion.

Edited September 2, 2009 by r&b

[nancy D]

Hi

I have submitted my AOS online

and have all the paperwork ready to send my subject access request. I also wondered if there is a template to request the documents from the solicitor for disclosure of particulars??

many thanks

nancy D

[r&b]

have a look here nancy:

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

[42man]

Nancy....may I ask what the particulars of the claim are, as R&B has correctly said you can use CPR31.14 or possibly CPR18 to request full disclosure, but it does depend on what the particulars say (don't be specific with the numbers)

[r&b]

here they are 42man:

Hi r&b

Particulars of claim:

The claimant claims payment of the overdue balance due from defendant under a contract dated on or about 19.08.1996 in the sum of ****inclusive of interest to the date of this summons at 8% per annum from 03/08/09 to 27/08/09.

 

PARTICULATS a/c no:*********

 

DATE ITEM VALUE

03/08/2009 Default Balance *****

 

Together with:-

Interest pursuant to s69 county courts act 19 at the rate ***.**pence per day to the date of jugement or sooner payment.

 

[42man]

Hmmm

 

Sending CPR31.14 could be an option....but as it doesn't specifically state default, assignment...etc then CPR18 might be the way to go...

 

This will need to be sent recorded delivery to the opposing solicitors....and it will need editing especially so if the debt hasn't been assigned (i.e. sold to a DCA)

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

CPR 18 - REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. 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 formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. 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.

e. 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.

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

g. 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.

h. Copies of statements for the entire duration of the credit agreement.

j. Proof that the debt has been securitised in the United Kingdom.

k. The termination notice.

 

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

[r&b]

nice one 42man

[Stubie]

This all seems rather odd to me.

 

I applied for s78 disclosure on the same day as Nancy D.

 

They did eventually send an agreement (although a pretty poor microfiche copy) in June.

 

They have now written to me saying they will close the account and sell the debt.

 

Why would MBNA take Nancy to court with no agreement and sell my debt when they have an agreement, albeit, not an enforcible one.

 

The only difference I can see is that I have already sent off a SAR whereas Nancy hasn't.

 

Really strange, anyone know how they arrive at the decision to chase/ dump an account.

 

I know this doesn't really advance Nancy's cause but I'm curious.

[nancy D]

Many thanks for everyone's help. My debt has not been sold on as far as i know??? ..but a silly question how would i know if it had been?????

[42man]

It would say under assignment or the claimant would be a debt collection agency....

[nancy D]

Thank you...

[Stubie]

I'm pretty sure that the OC has to notify you if the debt has been sold. and to whom. The recipient must then contact ou to advise that they have been assigned the debt etc etc

[nancy D]

Thank you and this site has been so helpful would not have been able to do any of this myself x