AK Claimform - MBNA card 'debt'

[MeeBroke]

A quick recap of how this all happened: I had always paid every month, on time by direct debit. I had never missed, been late or under paid. I hadn't used the card in a few years. One day, I received a call from MBNA informing me my monthly contribution would no longer cover the minimum as the interest had gone up from 24% to 30%. I demanded to see my CCA, where it said they could do this. They refused, I stopped paying and issue CCA request. The rest is history...

 

 

For a defence I would consider the following elements:

 

CCA is not valid:

 

The have given me a photocopy of what looks like an application form

 

interest schedule is not shown/accurate

T&Cs have been reconstituted outside of the agreement and appear to be of a later era than the application form

 

Default Notice Faulty:

 

rectification period too short

demand for full amount

 

*note also that two things happened at the time the DN was issued. The comms log shows the account was sold on before the rectification period expired. I received a letter from MBNA in response to one of my many requests for CCA during the DN period to say they were investigating and would get back to me within so many days. However, they DN'd me anyway even though the letter makes it appear that I should wait to do anything whilst they investigate.

 

Can I counter-claim?

 

I can demonstrate a perfect credit score both before and since this MBNA situation has occurred. It remains the only black mark on a lifetime's credit score. I have had this mark against my credit score for 4 years-and therefore have been unable to move house (we now have 3 children that we didn't have when this all began so want to move to a bigger home)due to being unable to obtain a new mortgage. Both my wife and I have been gainfully employed throughout.

 

Also, we sustained a long and brutal harassment campaign which included constant phone calls home/office/mobile for years leading to us changing our phone number. They managed to get through to me at a new job by lying to a previous employer to obtain my new employer and then lying again to my new employer to get through to my extension. Constant threatening letters, including threats of charging orders against our home (in writing). Threats that someone would be visiting at our house (in writing). A cynical attempt to obtain my signature by posting a blank slip of paper in an envelope that was sent 'signed for'- to name a few.

[citizenB]

Did they give you the opportunity to give up the card and repay the outstanding balance at the 24% interest rate ?

 

They are supposed to do this and give you 30 days notice of the rate change.

 

Yes, you do need to prepare and submit a defence. If you want to draft something with your own thoughts, we can all chip in.

 

I am pretty sure I have seen something previously used in a defence where the start of the hassles were similar to yours. So I will dig that out for you. I would think there are also some similarities with Harrison.

 

I am not quite sure about the selling on before the remedy period. IMHO, this is wrong because the new owner would not have been able to extend you credit if you had remedied within the time scales. Again, IMHO, their actions imply the account was terminated prior to the remedy date of the Default Notice. Which of course is wrong

 

Anyway, I am sure we can put something together between us.

[citizenB]

What would you be CC for.. destruction of your Credit rep /harassment ?

 

Yes, you can indeed CC, although you would have to pay a fee for that. I am not quite sure how you go about this. Andy will of course know

[MeeBroke]

What would you be CC for.. destruction of your Credit rep /harassment ?

 

Yes, you can indeed CC, although you would have to pay a fee for that. I am not quite sure how you go about this. Andy will of course know

 

Thanks CB, I'll give it all some thought. Is it possible for you to flag this up to Andy as well?

 

Many thanks

MB

[MeeBroke]

 

They are supposed to do this and give you 30 days notice of the rate change.

 

Yes, you do need to prepare and submit a defence. If you want to draft something with your own thoughts, we can all chip in.

 

 

No, they certainly didn't do this. The only way I was made aware of the rate hike was that my direct debit arrived at MBNA and no longer covered the monthly due to the increase-and they telephoned me to collect.

 

I'm not exactly where to sure start with a defence, i.e. format and what to include etc.

[MeeBroke]

So, once again here are the particulars as laid out in the Claim Form:

 

Para 1) Claimant: Aktiv kap ------- Address for sending docs: Solicitor ------ Claim: 'By a credit agreement under the Consumer credit Act 1974 the defendant borrowed a sum of money from MBNAicon, a bank for the purposes of the banking act.

 

Para 2) As a result of breaches of that agreement by the Defendant, including but not limited to non-payment of any sums due, a DN was served by MBNA. The defendant failed to remedey the breaches.

 

Para 3) The balance outstanding and upaid due at the date of issues amounts to (the entire amount) By a contract of sale MBNA assigned to Varde abosolutely all amounts due from the defendant under the agreement. Notice of assignment was sent to the defendant.

 

Para 4) By a subsequent contract of sale Varde assigned to the claimant absolutely all amounts due from the defendant under the original agreement.

 

Beginning of Defence draft:

 

Part 1) Para 1 Admit that there was an agreement with MBNA Europe Ltd but dispute that I had agreed to the interest rate schedule applied suddenly to the account, increasing the interest to 30%. I made a formal request for a true copy of any original agreement under the Consumer Credit Act 1974 that showed there was an agreement surrounding this interest schedule. MBNA did not comply with my request and instead embarked on a long and vicious harassment campaign. Due to MBNA's non-compliance with my CCA Request I placed the account in dispute.

 

Part 2) Para 1 Admit that the account remained in dispute dispite my repeated written communication with MBNA. After many months of communication with MBNA, including the intervention on my behalf from Trading Standards, and after the issue of a Default Notice MBNA eventually forwarded a barely legible photocopy of what appears to be an application form. The schedule of interest does not appear and the photocopy is accompanied by a separate document which appears to be a set of Terms and Conditions not related to the application form. This is no way is compliant with being a true record of an agreement under the Consumer Credit Act of 1974.

 

Part 3) Para 2 Admit that a Default Notice was issued. However, not enough time was allowed to remedy the situation in contravention to (reference needed here). A Communication Log obtained from MBNA on (date) under a Subject Access Request shows that the account was sold to a third party before the Default Notice Period had elapsed. A letter from MBNA was also received on (date) which announced that the situation was under investigation however, the investigation was ongoing at the time of the issue of the Default Notice.

[MeeBroke]

Any input here greatly appreciated. I am working to a deadline of 24 April I believe?

 

Many thanks

MB

[AndyOrch]

Your doing just fine Meebroke...now put them to strict proof to disclose and quantify.

 

Regards

 

Andy

[Dotty50]

Hi MeeBroke,

 

Hopefully CB will get Andyorch on the case to assist.

 

As far as the format is concerned and submitting it etc, you can draft it in a word document, post it on here for opinions and then once the defence is complete and ready to submit, you can copy and paste it to MCOL.

[Dotty50]

lol, it's like waving a magic wand!

[MeeBroke]

Your doing just fine Meebroke...now put them to strict proof to disclose and quantify.

 

Regards

 

Andy

 

Hi Andy

 

Thanks for having a look. I have no idea what you mean though?

 

Thanks

MB

[AndyOrch]

[AndyOrch]

Hi Andy

 

Thanks for having a look. I have no idea what you mean though?

 

Thanks

MB

 

The intro within your defence deals with either admitting or refuting the particulars.Then move on to put the claimant to strict proof and disclose the documents its claim relies upon:-

 

 

" 3. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim; "

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

 

Then state your dispute argument and its important to finalise the defence with " By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief."

 

Finish your draft then we will give it the once over.

 

Regards

 

Andy

[MeeBroke]

Finish your draft then we will give it the once over.

 

Regards

 

Andy

 

Brilliant Andy, thank you!

 

I'll get to grips with this after work today.

 

Best

MB

[MeeBroke]

Andy, I'm still not clear. Am I building a narrative in the intro (the bit I drafted above) and then basically copying the bit you've suggested after it?

 

I'm thinking I should refer to the UR somewhere, do I quotes letters and dates?

 

Just not sure what level of detail is required for Defence and what would eventually go in WS.

 

Thanks

MB

[citizenB]

A defence is the bare bones.. a Witness statement will put the flesh on at a later date.

[AndyOrch]

Good morning Meebroke

 

Take a read of this recent thread..... I go into detail on how I draft defences :- http://www.consumeractiongroup.co.uk/forum/showthread.php?380935-Claim-Form-Received-Court-Process-Guidance-Required-please

 

Regards

 

Andy

[MeeBroke]

Thanks Andy!

 

Alloyz eventual defence looks almost spot on?

 

My Claim particulars:

 

'By a credit agreement under the Consumer credit Act 1974 the defendant borrowed a sum of money from MBNAicon, a bank for the purposes of the banking act.

 

As a result of breaches of that agreement by the Defendant, including but not limited to non-payment of any sums due, a DN was served by MBNA. The defendant failed to remedey the breaches.

 

The balance outstanding and upaid due at the date of issues amounts to (the entire amount) By a contract of sale MBNA assigned to Varde abosolutely all amounts due from the defendant under the agreement. Notice of assignment was sent to the defendant.

 

By a subsequent contract of sale Varde assigned to the claimant absolutely all amounts due from the defendant under the original agreement.

 

Alloyz's defence:

 

1. Paragraph 1 is admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with the MBNA Europe Bank Limited.

 

2. Paragraph 2 is admitted but it is denied that MBNA ever served a Default Notice pursuant to the CCA1974. The claimant also failed to serve any Notice of Sums Arrears since assignment pursuant to the CCA2006 amendments (sec 86C ) and precluded from adding any interest or seeking enforcement or relief until such time it is served..

 

3. Paragraph 3 is admitted regarding the Notice of Assignment. The Claimant is put to strict proof to:

 

(a) show service of a valid Default Notice and proof of delivery

(b) show how the Claimant has legal right by way of the Credit Consumer Agreement and Terms and conditions applicable

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. Incorporated within the sum demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment. The Defendant avers that the incorporation of such claims is penal and unenforceable at law.

 

5. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Edited April 17, 2013 by MeeBroke

[MeeBroke]

Phew, I've spent the morning going through all of my documents on this again-I think it runs to well over 200 pages. Everything is in meticulous order. Checked and double-checked the DN is definitely faulty. They definitely sold the account on a week before the DN rectification date (clearly shown in comms log). They have sent at least 4 different sets of T&Cs. The grainy photocopy of the tear-off portion of an application is only perhaps 60% legible but there is a schedule of interest that does not include the 29.9% that they raised mine to. I have also rediscovered a letter from MBNA admitting they raised the interest to 29.9% for no reason other than 'after a review of the account we raised the interest'.

 

I also have a letter from MBNA that specifically says that the are investigating the account and will respond within 28 days. Less than 15 days into this period they defaulted me. I then received another letter from MBNA apologising for the delay and informing me they were still investigating and would get back to me on 28 Jan, over a full month after the DN rectify date.

 

Feels good to have everything nicely in order.

 

Now, Just have to sort out this defence. Andy, I'm thinking there's no reason to reinvent the wheel. Does Alloyz's defence match my situation?

 

Very many thanks

MB

[MeeBroke]

I think the only change from Alloyz's defence I wonder about is to mention that the agreement was unlawfully rescinded, or is that giving too much away? I also don't think the agreement was valid due to interest schedule and lack of T&Cs, so I still 'admit'?

 

 

Claim Particulars:

 

'By a credit agreement under the Consumer credit Act 1974 the defendant borrowed a sum of money from MBNA, a bank for the purposes of the banking act.

 

As a result of breaches of that agreement by the Defendant, including but not limited to non-payment of any sums due, a Default Notice was served by MBNA. The defendant failed to remedey the breaches.

 

The balance outstanding and upaid due at the date of issues amounts to £xxxxx. By a contract of sale MBNA assigned to Varde abosolutely all amounts due from the defendant under the agreement. Notice of assignment was sent to the defendant.

 

By a subsequent contract of sale Varde assigned to the claimant absolutely all amounts due from the defendant under the original agreement.

 

Defence:

 

1. Paragraph 1 is admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with the MBNA Europe Bank Limited. However, it is denied in that the agreement was unlawfully rescinded by MBNA.

 

2. Paragraph 2 is admitted but it is denied that MBNA ever served a Default Notice pursuant to the CCA1974. The claimant also failed to serve any Notice of Sums Arrears since assignment pursuant to the CCA2006 amendments (sec 86C ) and precluded from adding any interest or seeking enforcement or relief until such time it is served..

 

3. Paragraph 4 is admitted regarding the Notice of Assignment. The Claimant is put to strict proof to:

 

(a) show service of a valid Default Notice and proof of delivery

(b) show how the Claimant has legal right by way of the Credit Consumer Agreement and Terms and conditions applicable

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. Incorporated within the sum demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of late payment. The Defendant avers that the incorporation of such claims is penal and unenforceable at law.

[Alloyz1]

Hi

 

Just so you know, the claimant in my case has failed to notify the court if they wish to proceed so the claim will be automatically stayed.

 

However I have drafted a WS ready for others to review on here and in preperation; and await an AQ if the stay is lifted.

 

Timeframes are crucial, don't fall into the trap of procrastenating and follow the advice carefully and taylor it to your case.

 

Thanks

 

Alloyz

[Alloyz1]

I also don't think the agreement was valid due to interest schedule and lack of T&Cs, so I still 'admit'?QUOTE]

 

Covered in your defence part 3 section (b). You are asking them to provide the compliant agreement and T&Cs

 

imho

[MeeBroke]

I also don't think the agreement was valid due to interest schedule and lack of T&Cs, so I still 'admit'?QUOTE]

 

Covered in your defence part 3 section (b). You are asking them to provide the compliant agreement and T&Cs

 

imho

 

Many thanks for all your comments Alloyz! I'm definitely no procrastinator. I have until 24 April to enter my fence, my understanding is that I should wait til near that date to enter the D. I'm thinking 22nd to be on safe side.

 

Just need Andy's feedback and I'm good to go! Will also work on WS.

 

MB

[MeeBroke]

Hi Andy or CB

 

If you guys have a mo, could you have a look at my defence? Any feedback would be appreciated.

 

Many thanks

MB

[MeeBroke]

PS

 

Defence is due in 4 days!