RBS/Carter claimform - Mint Card - CCA Is This Enforeable?

[MrHat]

this is a very interesting thread and I am following with interest. Well done for keeping this all updated and good luck

[the_shadow]

Thank you for the quick reply Shadow,

I'll read up those things and acknowledge the claim first thing tomorrow.

Then I'll issue the CPR 31.14 letter to BC.

Yours

Murphy

 

Has BC split the claim at all or is he claiming the full amount?

 

S.

[MurphyW]

Hi Shadow,

The claim has not been split. BC claiming the full amount owed to MINT(RBS).

Does that imply anything?

Murph

 

Hi guys,

Well I've been on line to do the Acknowledgment of service and am now going to write to get the BC to supply relevant documents for their claim.

The moneyclaim access and completion is quite straightforward for those about to go down the same route.

Reading the various documents though you need to be aware that you as the defendant will incur costs in defending the claim against you. It's worth reading up some of the literature that is on line as it is clear and comprehensive. Will no doubt be in the fast track court if it gets to that stage as the amount I owe on this card is over £10k.

Will keep you posted

Murphy

 

To follow on from my court acknowledgment here is a copy of my request letter to BryanCarter.

I've referred to the default notice and termination as they are relevant to the agreement in force currently (or lack of).

Is this the right thing to include or should I only refer to the CCA as per the POC?

Any comments welcome before I post this later this afternoon?

 

keep watching and thanks for your help and input.

Yours

Murphy

[the_shadow]

Ok, CPR 31.14 allows you to request the information mentioned in the particulars of claim only... therefore under CPR 31.14 you can ask for a copy of the agreement if you do not already have it as thats specifically mentioned.

 

As to the rest of your "cpr 31.14 letter" I would remove it and send also a CPR18 letter if you need clarification on any points, I thought you had a copy of the template default notice sent to you? They are under no obligation to keep a copy of the default notice after its been sent to you and its not a requirement for them to show it at trial just to show you have been sent it.. a judge would normally accept a company stating in a witness statement that they sent a default notice prior to termination and issuing proceedings.

 

If you are looking at fast track then you are looking at possibly 6-8k in costs above the actual debt itself. You do need to balance this up when deciding to proceed or not.

 

S.

[MurphyW]

Hi S,

Thanks for that, I'll remove the extra points and rely on the production of the agreement.

Does the fact that the DN was issued defectively and the account then terminated have any bearing on this at this stage or am I just looking at the one aspect of the CCA being valid / invalid in defending this claim?

You make the point about the sort of costs that may be incurred by going down the fast track route if I continue to defend this claim. At what point would this become due? If I was unsuccessful in defending he claim. Will a defective DN be part of my defense as to the amount that is allegedly owed at a later stage? I've not seen much comment about the fees involved prior to getting to this stage.

Yours

Murphy

[the_shadow]

Ineffective Defaults arent a permanent bar to enforcement and the judge may either halt proceedings and ask the creditor to re-issue the default, carry on with proceedings anyway or throw out the claim... I think you can guess which one most of the cases on here that we've seen go.I'm a bit confused about your comments... what is your actual defence if they send back an enforceable agreement? the default will not be a strong defence I'm afraid.Costs become due at the end of the case and will be added to the judgment debt (CCJ) If you lose.S.

[MurphyW]

Hi Shadow,

Sorry to seem slow on this but going back to post number 39 from Cerberus and also prior comments about the CCA and DN that were supplied prior to termination I believed that with the defective CCA already supplied by MINT that I have a good defense in this case.

You seem to be implying that this may not be so, or that I should consider whether to proceed with a dense very carefully once these documents have been received from Bryan Carter.

I do have the defective DN paperwork as well as the termination letter.

I do not have any resources to fund anything more than some very basic monthly payments to any of my creditors at the moment.

At what point do any further costs start to accrue on top of the current court and solicitors costs which have been added to the arrears, late payment and interest charges on the account?

BTW which is the most common way the judges go? DO they generally just ignore and carry on regardless?

Yours

Murphy

[the_shadow]

Costs will hit at each point in the case, every letter/phone call/meeting the opposing solicitor has for this case will be marked down in time wise and billed, they will prior to any hearing or final hearing give you an estimate of their costs which you are likely to be saddled with if you lose your case, you also have the opportunity to put forward a costs estimate but yours can only be a percentage of their costs by regulation.

 

This board is a self help site and as such different people give different answers. I can only go on how I feel the case will go in relation to what you have revealed to us.

 

S.

[the_shadow]

Ok just gone back over the thread, Cerebs advice was given in context of 2009 and prior to various cases.

 

Brandon vs Amex is the authority for Default notices and basically whilst its being appealed at present it states unless you have had a real true provable prejudice against you by not having the 14 days down in statute it matters not... so if you say went to pay on the 14th day but they declined and said no you cant pay now you have a case, if you did nothing for those 14 days or if they took NO ENFORCEMENT action within those 14 days it doesnt matter and you have no case

 

Carey vs HSBC & McGuffick vs RBOS both dealt with reconstructions and the four corners argument, it was held in Carey that if the the mention of "document" could refer to multiple pages sent in one package and hence so long as t&c were sent with the agreement when signed that would be sufficient.

 

S.

[MurphyW]

Hi again S,

Thank you for clarifying the thoughts behind your reasoning and also more recent case developments.

I had seen mention of Brandon and Cary somewhere but had not realised the potential effect that they may have on my current position.

Usual solicitor thing with costs for everything that you breathe in their direction, ask or offer advice or consideration of!

As I said before but mis-typed I will have to consider carefully how and whether I proceed and accept the possible extra costs risks or try to agree a settlement during the pre-hearing stages depending upon their case presentaion and apparent strength / determination.

Will keep the thread up to date as I go forward.

Yours

Murphy

[MurphyW]

Hi all,

Having spent much of the last few days when I have had the time to read countless posts by PT and various other more knowledgeable contributors including site team members I'm not sure where I'm going with this.

 

I sent off a SAR request to Mint on 4th May along with a £10 cheque. I received their reply and a large brown envelope by recorded delivery yesterday.

 

Having read other posts it would seem that I would have been better to request a"True copy " of the CCA that they have rather than doing the SAR!

 

They sent a copy of the original application form as in my earlier post in this thread.

They also said in the covering letter "We have not provided you with copies of the terms and conditions/Notice of variations as these fall outside the definition of personal data for the purpose of the Data Protection Act 1998. Similarly, Section 7(1) © only requires a data controller to provide a copy of the information constituting any personal data, not the actual document on which the personal data is recorded."

 

As they have not sent the terms and conditions relevant to the application form / agreement can I request that information as part of a "true Copy" request and also ask for an extension of time to prepare a defense for a further 28 days?

Yours

Murphy

 

HI for those following this thread here are the letter pictures: -

My Request first:

 

Bryan Carter my request under CPR31.14

 

I'll post the responses in a new post.

Murphy

 

Following on from there: -

Bryan Carter referred me to RBS Mint in reply to my CPR 31.14 request: -

 

As I had already made the SAR application on 4th May to Mint and copied in BC And Fredricksons this was an indication that they had not read their file or chose to ignore my original letter.

 

Here is the covering letter received back from RBS Mint with only my application and no T&C's: -

 

Although I did not post up the T & C's that I received with my first CCA request I will scan them in and post them up in a while before making a decision as to whether to continue to contest their claim or try to agree a realistic repayment plan.

 

This is a decision that I have come to in the light of more recent court cases where the CCA has been accepted in reconstituted form and also the judges views on allowing a defective Default Notice to be remedied by the creditor even if the account has been terminated.

Yours

Murphy

 

Hi Again,

The documents that MINT supplied from my original CCA request received on 11/06/2009.

My Application:

 

One set of T & C's front page:

 

then assumed the reverse but printed / photocopy on separate sheet:

 

Also supplied another T & C sheet:

 

And then at the same time a letter when a new card was issued:

 

Which had a separate photocopy of the following terms sheet attached with it:

 

All of the T&C sheets are undated and it is difficult to know whether they are the correct ones that relate to the application form that they have sent as the CCA.

 

If any one can offer any advice as to whether I have a chance to challenge the claim for repayment in court I'd appreciate all comments, considering that I am not in a position to repay this at the moment other than by trying to agree to some very nominal monthly payment plan with Mint.

Yours

Murphy

[FredFerret]

Wish I could help mate,,, But definately subbing to this as I am about to go through the same for my Dad,,, Hope you get a response soon!!!

[BRIGADIER2JCS]

It looks ok, was it a booklet fold out application/contract form, as sint out in a lot of mailings?

[MurphyW]

I have now had the full application form and similar terms and conditions supplied as the evidence that will be relied on by the claimant in court.

Have to decide what response to make as it looks as though I will have to go to court and accept a CCJ with an agreed payment plan to MINT.

Is it too late to withdraw my defence and make a monthly repayment offer I wonder?

The claim has not been allocated to a court yet.

Yours

Murph

[FredFerret]

Good question! I have wondered about this.... Good luck!!

[BRIGADIER2JCS]

Obviously if you can avoid the CCJ better for you do a personal I&E calculation taking in all priority debts,

credit accounts living and travel costs, from the disposable income left deduct a reasonable amount for contingencies,

you will then know what you can reasonably afford to pay, make the offer firmly and state that you know that they would be very unlikely

to get a bigger order in court.

[MurphyW]

Thanks Brigadier,

Was wondering what others had done or thought the best thing to do.

I'll get that written up and send a firm proposal off to them with a copy of the I & E form.

May also need to advise the court clearing office once the allocation has been made to change my defence to a plea agreement due to clear paperwork now supplied by the claimant.

The claimant has sent a letter agreeing to a further 28 days for me to prepare my defence but I did not receive that until after the initial 28 days to submit a defence had passed.

Can I submit that letter to the court clearing department to get the extra 28 day extension still do you think?

Much appreciated.

Murphy

[BRIGADIER2JCS]

Notify the court and the claimant of your intentions, it seem to me that you had the original 28 days

which should run, then the extension follows on to that.

Get the submission as the things you have said above and inform all parties I would suggest RD post.

[the_shadow]

The court dont really care about the extension, even when the time runs out the court does nothing... its the claimant that must login and push the button to seek judgment, so them allowing you 28 days and giving it to you in writing confirms they wont and sending it to the court just covers you if they try anything sneaky like going for the judgement despite what they have said.

 

You can settle this/withdraw the defence right up to the steps of the court, ALL offers you put to them must be passed to their clients and evaluated. They are likely to seek a tomlin order if you agree terms which binds both parties and stops the court case, some claimants seek you to agree to having judgement entered against you, others dont.

 

Its up to you but if you wanted to protect yourself you COULD put "without prejudice" on the top of any offers you send them, they wouldnt be able to use anything you disclose in the letter in court without your agreement then.

 

S.

[BRIGADIER2JCS]

Thanks for that it spell it out perfectly

[the_shadow]

Thanks for that it spell it out perfectly

 

No problem, like you I'm just happy to help

[MurphyW]

Hi Shadow & Brigadier,

Thank you for those constructive comments and clarification of the process.

Now for pen to paper and see what I can agree with MINT.

Yours

Murphy

[BRIGADIER2JCS]

Good luck Murphy!!!!

[Dotty50]

Hi Murphy,

 

My OH is paying an agreed amount to Mint and they accepted reluctantly but I think they realised they could not get any more.

 

They asked for a review after 6 months and we just confirmed that our situation remained the same so it continues as originally agreed and no further interest is being added and no hassle of calls or letters.

 

Pity the others wouldn't agree, however, the others are getting zilch!

[BRIGADIER2JCS]

That one good result,at least one less to worry about.