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    • nothing you can do can product against the very rare judge lottery syndrome.
    • not sure why you added the blue line I've highlighted? that's no in the we gave you.   as for your question... PRAC's roboclaim computer knows when the account was taken out, after all it raised the claim and checked everything carefully first before issuing the request via northants bulk courts equally inept roboclaim computer... 
    • I've been researching in preparation of compiling my particularised defence/WS.    I'm none too happy that some judges still seem to be siding with DCAs and seemingly brushing aside anything that we have assumed to be "necessary" for DCAs to have a winning case.    Reading a recent "summary" from another poster (another thread with case similar to mine - very old, illegible application form, no default notice, reliance on their own software to prove it was ever sent) and the judgment made in favour of the DCA and even suggesting that there was no "agreement with the DCA, they simply owned the debt, not the agreement"  Makes me very nervous.    Especially if cases like this will be judged on "probability" - the probability that if I signed the original application form, then I must have taken out the credit card and racked up the alleged debt as shown in statements enclosed in their WS (and dated some ten years later).   Is it ok to post some "evidence" I've found from elsewhere?    This is in line with my fears that regardless of how hard one tries to rebut the "lack of evidence" produced by DCAs for chasing these very old "alleged" debts, it does appear to come down to the luck of what judge you get on the day and how much they can be swayed by the DCA solicitor.    A quick Google search produced the following - from one case - this related to a credit agreement - which resulted in someone being made bankrupt - that person appealed the bankruptcy order on the grounds of defective credit agreement and default notice and this was the appeal judge's decision:   The necessary formalities for the entry into the regulated consumer credit agreement (which related to the debt in issue) were not complied with; The default notice served in respect of that credit agreement was defective.   The First Ground The Appellant argued that she did not receive the terms and conditions when she entered into the credit agreement and, accordingly, section 61 of the Consumer Credit Act 1974 (“CCA”) had not been complied with and the agreement could not be enforced. The agreement had been entered in 1995 and, whilst it had provided a microfiche copy of the front page of the application, the Respondent had been unable to provide a copy of the terms.   Despite the terms not being produced, the District Judge had found that, in the circumstances, it was very likely that such terms existed and would have been provided to the Appellant when she entered into the Agreement. Mr Justice Mann held that this was a finding that the District Judge was entitled to make.   Further, Mr Justice Mann found that it was implicit from the District Judge’s findings that she considered that the terms and conditions not only existed but had been subscribed to by the Appellant’s signature and, consequently, the requirements of section 61 CCA were fulfilled. Mr Justice Mann held that this was also a justifiable finding which should not be interfered with on appeal.   The Second Ground The Appellant also argued that the default notice upon which the Respondent relied did not comply with the Consumer Credit (Enforcement, Default and Termination Notice) Regulations 1989 because it stated the full balance of the account rather than the total of the missed payments. The Respondent argued that, as a result of the missed payments, it was contractually entitled to the entire balance subject to the service of the appropriate notice, a requirement which was fulfilled by the default notice itself and, consequently, the sum required to remedy the breach was the entire amount.   Mr Justice Mann agreed with the Respondent and the District Judge, holding that: “If by the time the default notice is served circumstances have arisen which entitle the lender to recover not merely sums which might be regarded as arrears, by which I assume is meant accumulated minimum payments, but also the whole of the sum, then they are entitled to claim that sum, and the sum to require to remedy the breach for non-payment of that sum is the payment of the whole sum due. The bank is not confined, at that stage, to claiming merely the amount of arrears if it has an accrued contractual right to have the whole of the sum.”   Do judgments like these not mean that a lot of what you guys do on here (and for which I and many others are VERY grateful) somewhat redundant. What is happening to judges just accepting "well, the terms must have been there if you signed it" -    Feeling quite nervous now.
    • we know it wasn't done to avoid enforcement we understand completely. but that doesn't take from away the fact that it happened   you can't appeal the pcn's on the basis that 'it was not his vehicle to levy upon'. the law clearly states otherwise.          
    • here is a question for you, is yu house divided up into a retail/business area  and domestic area for business rates purposes? If not why on earth are you paying business water rates? ceertainly not for tax purposes as you can claim any legit expense without having to reclassify your home as a business premises. i would be stopping this nonsense and goping back to whatever water supplier is the domestic one for your area. there is stuff all they can do to get the £40 from you whan you do that.
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miss muppet

Miss Muppet v MBNA - *** WON + COSTS ***

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Update for everyone - just got a nice fat cheque from Optima Legal. 8) Not sure whether I should be doing anything else? Anyone?

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Fab News Miss Muppet well done.

 

Lets see how my MBNA Court case goes when it comes up.

 

Gaz

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As to what happens next depends on a range of things and we need a bit of information:-

1. Did the Judge make any other orders apart from refusing their application

2. What stage is the case at - you've presumably filed a full defence now - how much is the claim worth? Has it been allocated to track yet.

 

I've got my run in with Arrow on an MBNA strike out on Tuesday


If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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well done Miss muppet, :D:cool:

I've just found your thread today,

I'm sure I will enjoy reading it.

kind regards Q.x.


For attractive lips, speak words of kindness. For lovely eyes, seek out the good in people. For a slim figure, share your food with the hungry. For poise, walk with the knowledge that you never walk alone. People, even more than things, have to be restored, renewed, revived, reclaimed, and redeemed; never throw out anyone. Remember, if you ever need a helping hand, you will find one at the end of each of your arms. As you grow older, you will discover that you have two hands; one for helping yourself, and the other for helping others. :)

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Hi guys, just got back to this, IGNM, my defence went in August 2008, judge ordered detailed reply to it, whcih OL did in December, then they filed for SJ combined with witness statement January 2009, my witness statement February 2009 and hearing was Friday 24th April. Got their cheque yesterday but have not received copy of the court order for their SJ to be dismissed. If I don't get it should I phone the court next week?

Good luck with yours on Tuesday, all fingers and toes crossed.

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oops sorry, just re-read, claim was for just over £2000 with their illegal charges on top, it was small claims, Judge dismissed their application for SJ and made order for costs - nothing else!

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Thanks...

 

You should get Small Claims Track directions - when you get them if you post them we'll have a look

 

I'd be interested to see your defence and their reply


If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Congratulations, Miss M - I'd photocopy that cheque before you bank it and frame it - it'll make you smile every time you look at it;):D

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Hi miss muppet

 

And congratulations, very well done.

 

I am so pleased my thread http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/145452-stayingcalm-abbey-no-cca.html has been of some assistance to you. Being my first case I learnt so much from pt and sx20.

 

Anyway, good luck with your case, if Optima Legal have any sense they will discontinue before this gets too much further.

 

Regards

SC

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Thanks SC, your help was invaluable.

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Sorry, IGNM, can you translate, sorry to be so thick!

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Thanks underdog, yes I certainly should!

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Hi Guys, update on this, I now see what I've got no money meant. Got the practice directions from Judge which pretty much tied the other side up - been working on my witness statement which I will post up later when all this is done. The question I want some help with is that I got a call from Optima Legal yesterday as they had obviously received my witness statement and they offered me an amount to settle the case - £750 to be precise, they say it is a without prejudice offer. I said I wanted to see it in writing, they said they will be sending it to me first class with a consent form and that I have to let them know straightaway because of the dealine for their witness statement - thought after I should have said that was their problem not mine and they could have stopped this at any time as they knew they didn't have the agreement. My question is should I have mentioned 3 years of ppi as well, I didn't counterclaim for this as they didn't produce statements and I didn't have time to dig out mine, or can I go after them later for this or indeed should I bearing in mind the offer? Won't get their letter anyway probably until after I return from work so looks like they could be spending a weekend in the office - I presume I should be asking for default removal as well - any help greatly appreciated.:confused:

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The Barrister told me later that it was her first case where the defendant had turned up, she obviously hadn't met a Cagger before but I'm hopeful she will again in the very near future!!

 

 

Well Done Miss Muppet.

 

You summed it up, i think they have become use to the idea of winning by default. This has made them sloppy with this whole procedures before court.

 

To All Caggers involved WELL DONE

 

knowledge is power....

 

Trooper68


Trooper68:)

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I think Optima know they're on to a loser if they are offering to settle:)

 

Did MBNA supply you with the application form and did it have any prescribed terms, if you don't mind me asking?

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Hi underdog, just got in. They admitted they didn't have the application form early on and firstly supplied 6 pages of the terms and conditions to my CCA request, of course unsigned and then later when they applied for summary judgement they supplied 1 page of the t & c's (back and front) and one blank application form so really they were stuffed. They have obviously sent me something by special delivery which I have missed and will have to collect tomorrow, you are right, they must be worried!

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They also had the evidence of my raising court action in 2005 to reclaim penalty charges and he said surely I would have to admit that I knew that there had been an association between myself and the company and I said that it was true that I had reclaimed penalty charges when I got into trouble due to my illness,

 

Hi Ms Muppet.

 

Well done on your case and glad to hear that the cancer is in remission.

 

I am concerned about the impact that your claim for unfair charges may have had on your case. A lot of us on the site, fighting the same fight, are going it all in one go. Reclaiming charges and following the CCA route at the same time.

 

Do you think that claiming charges at the same time is effectively stating that you acknowledge the agreement?


Please note that I am not a solicitor or legally trained. The advice I give is from my own personal experience based on my own personal circumstance. If you choose to follow any advice I may give, please make sure you understand the implications of following that advice. :-)

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Hi MM,

 

they offered me an amount to settle the case - £750 to be precise, they say it is a without prejudice offer.

Are they offering to pay you or is this what they'll accept as a F&F settlement from you.

 

Are there charges on the a/c which you're reclaiming.

 

You should be in no hurry to make your decisions - as you say, they could have dropped the case at any time before now.

Edited by slick132
typo

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No I don't DJ because as I said to the Judge I did not know my rights at that time under the Consumer Credit Act 1974. In my case and as I know many other caggers have found MBNA do not fight fair. When I was requesting information they made life as difficult as possible by replying to me with a different account number and when I made a complaint to the ICO, they gave an alternate reason to that stated on their first witness statement plus they told the ICO they had not passed the account to a DCA when they had. This is why we also have the new Consumer Protection Regulations enforceable since May 2008 - one of the quotes from Susan Edwards, Head of Credit Investigations and Enforcement,OFT is very clear:

Therefore it is misleading to state,when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26th May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008(CPRs). Reg 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the procduct (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characterisitics include the 'executiion of the product' Reg 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Reg 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Reg 5 of the CPRs is a criminal offence under Reg 9 and can also be enforced under part 8 of the Enterprise Act 2002. Under sec218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent 'to provide evidence of the accuracy of any factual claim'(such as a claim that a debtor has signed a credit agreement.

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Thanks for the info.

 

Would you say that my experience here http://www.consumeractiongroup.co.uk/forum/general-debt-issues/204259-warned-help-please.html would be argued under the CPR's?

 

Thanks for your time and advice.


Please note that I am not a solicitor or legally trained. The advice I give is from my own personal experience based on my own personal circumstance. If you choose to follow any advice I may give, please make sure you understand the implications of following that advice. :-)

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Hi Slick, sorry replies crossed. Like you wondered whether I had heard right afterwards but as she used the phrase without prejudice and I had to sign a consent form, I think I heard right first time, cursing now that I missed the special delivery but will go out first thing tomorrow and collect it - after the Judge dismissed their application for summary judgement, the order that came out from the court said that we had to exchange witness statements together with case reports and statutory provisions not to include evidence already filed by the 15th, plus the claimant had to pay a fee of £150 by 2nd July and the claimant had to lodge a case summary with an indexed and paginated bundle by 27th August.

 

The way I look at this nothing ventured nothing gained, if by any chance they meant a FF offer well I've lost nothing because I have said I want to see the offer in writing and I would not agree to that anyhow plus I have made sure I sent a copy of the 2nd witness statement to court so they know I have complied whereas as yet no witness statement from them altho this might be the Special Delivery!! Anyway, the saga to be continued..//.... off to get an early night so can pick up mysterious bundle tomorrow!!

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Miss M

 

Do ou have a reference for your quoye from the OFT? It would be very useful to a lot of caggers.


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Hi MM,

 

I'm still not clear as to whether they are offering to repay charges to you or offering you a F&F figure for you to settle their claim.

 

Please confirm further when you collect the SD letter.


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                                            Have we helped you ...?  Please Donate button to the Consumer Action Group

 

Please give something if you can. We all give our time free of charge but the site has bills to pay.

 

Thanks !:-)

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Hi Slick, no neither was I until I hot-footed it to Royal Mail this morning for their special delivery, needless to say made sure my signature was different and Optimistic Legal are living up to their names, this is why it is so important to get everything in writing - I know what I heard but here is the gist of their letter:-

WITHOUT PREJUDICE

 

Dear M (My christian name used here - ha ha best mates not!)

 

MBNA Europe Bank Ltd v Yourselves (eh - there is only one of me!)

I write further to our telephone conversation today.

 

As discussed my client has instructed me to propose a without prejudice offer based on the following terms

 

- You pay 40% of the principal debt, being £750.00

- The amount be paid in full by 30th June 2009

 

This offer will remain open and valid until the close of business on 12 June 2009, as discussed, if the offer is rejected I will need to prepare and file my evidence at the court in accordance with the court order dated 20th May 2009

 

I await hearing from you.

 

One thing here dear Optimistic Legal the order was for witness statements to be exchanged by 15th June, no sign of yours yet is there? The court know I have complied because they have a copy. Another thing is in relation to your offer - go forth and multiply!

 

Seriously Slick, there were no charges involved other than the usual penalty charges which I got refunded into the account early on before the cases were stayed. The only other thing is PPI which I had thought until I got my statements organised were from the whole period of the account but it turns out have only been applied for about 3 years.

 

I am still confident of my case and feel I have plenty of evidence to prove they have abused court processes.

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hiya MM abuse of court process hehe watch my space come monday i will be filleting them


If I have been of help to you please feel free to click my scales to the left Thanks.:)

I have no legal training and the advice I offer is what I have learnt here and offered as a matter of support. Before you commit to any Legal action you are advised to contact a qualified legal practitioner.

 

Finally if you succeed with your claim please consider a donation to consumer action group as those donations keep this site alive.

 

CARTER V Co-Op

BANK CHARGES

REFUNDED £3567

 

POMPEYFAITH V Co-Op PPI

OFFER MADE BUT REFUSED

ONGOING AND STILL ONGOING

NOW WITH THE OMBUDSMAN

 

R.I.P BOB aka ROOSTER-UK you have always been a Gent on these boards and you will be remembered for that.

 

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