MBNA/Optima Court action

[MisterV]

Thanks

 

What if i pay the amounts we have agreed? Dont you think that will be the end of the matter?

If i decide against agreeing how do i advise them? It states that if they fail to hear by the agreed date, they will make an application to court for my defence to be struck out and for summary judgement to be entered against me for full amount plus costs etc..

I am wary of these people, but also totally unsure which way to proceed?

 

Are you around PF?

 

Before i give away any extremely hard earned cash that i cannot afford to do, would you agree with the following?

 

There are no prescribed terms & although there are T&Cs on the reverse, it does not refer to them on the front.

 

Does not contain the name and address of the creditor.

 

Does not contain the credit limit.

 

If a regulated agreement is missing any prescribed terms, or if the terms are misstated then the agreement is irredeemably unenforceable.

 

http://i370.photobucket.com/albums/oo147/martpammy/scan0001-1.jpg

 

http://i370.photobucket.com/albums/oo147/martpammy/scan0002-1.jpg

[pompeyfaith]

Is that all you have ? if so then yes it is unenforceable as all you have is the prescribed terms and not the full terms and conditions.

 

the conditions on the back are not the full terms and conditions they would be at least 3 pages big.

 

and yes no credit limit, is there an APR on there ?

[itsamomentintime]

Is that all you have ? if so then yes it is unenforceable as all you have is the prescribed terms and not the full terms and conditions.

 

the conditions on the back are not the full terms and conditions they would be at least 3 pages big.

 

and yes no credit limit, is there an APR on there ?

 

great stuff PF

[pompeyfaith]

If they do apply for judgement you can apply to have it set-aside via an N244 Application due them gaining it though the back door.

[MisterV]

No specific APR just a table on the back showing different amounts depending on the type of transaction but it does show them in % terms.

 

When i originally got the copy of the CCA i was sent the new terms and conditions that were 3 or 4 pages big.

 

I just dont know if ive got enough to take this to court and win?

[pompeyfaith]

they have to be the historical ones although they can produce the latest, but if they do that they also have to produce the historical ones i.e. the ones that applied at the time of signing.

 

IMHO also the latest terms and conditions i believe that they are an unfair bargain as you did not sign or agree to them.

 

This is where the financial industry is going wrong if they issue updated terms and conditions just sending them to you is not good enough as that would be an unfair contract.

 

The financial industry really should get this point right and ensure they us consumers agree to any new terms and conditions by way of a signature.

[MisterV]

Right, but it doesnt mention them on the CCA, doesnt refer to any terms and conditions does it?

Most people are telling me to be cautious of a Tomlin Order, i made an offer and they sent the Tomlin order. Im getting more and more reluctant to agree to it, can i back out now? Id have to write and say im not prepared to accept a Tomlin order, then if they go for judgement use the N244?

 

If i do fight this would i be in court within weeks defending this or would it take a lot longer? People are talking of serious back logs or even cases like this stayed?

[pompeyfaith]

Well if you agree to a tomlin as ive said before imho i would only agree to this if it was prepared and drawn up my a judge with both parties in court.

 

Signing it and then sending it to optima for them to send it to court is not a good idea in your interests as there is nothing stopping optima changing it before forwarding it to court.

 

it would most likely be at least 6 mths before it reaches a trial date and that is plenty of time for you to gain the knowledge and for optima to start making mistakes as my case has proved.

 

Would you like to read my 47 page witness statement as it shows with out a doubt what optima are capable of.

[MisterV]

Youve been to court Pompey - looking at my agreement is it worth a fight?

Sory to be so direct but i have to deal with this by the 8th.

[pompeyfaith]

MBNA already know that this is a hard one to win that is why they have handed to optima

[MisterV]

Yes i will read anything to help the cause, one day id like to be able to give something back to this site.

 

Ok, deep breath, how do i refuse this tomlin, write and say its unacceptable?

[pompeyfaith]

Oh yes ive been to court a few times with mbna/optima and now the tide has turned and i am just about to throw a great big spanner in the works.

 

Ok because this is not in court until the 14th Jan 2010 and that i do not want optima knowing my course of action can you send me via the PM an email address i can send it to.

 

In time i will update my thread and post it on there but i cannot at the moment for obvious reasons you will see once you have read it.

 

As for the tomlin yes write to then refusing and stateing a tomlin will only be agreed in a court of law and in front of both parties.

 

Also state that any actions by them via the back door will not be tolerated and will be defended via an N244 APLICATION.

[MisterV]

Good for you,youve gone through a lot and i wish you more continued success. im just dont want them stitching me up behind my back, you know, not filing the right stuff etc

 

So write and then wait for their response? Will Pm my email address

[pompeyfaith]

misterv,

 

What is your current state? are you working,on benefits?

 

Just trying to establish if you have to pay court fees.

[MisterV]

Working, will have to live with court fees, what is approx cost?

[pompeyfaith]

Here you go:

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex50_e.pdf

 

PF

[pompeyfaith]

Ill also add that no judge will make you pay more than you can afford and the judge will give you the opportunity to mediate so at least you are then doing it all above board with the backing of HMCS

 

Right ill be back in the morning and again tomorrow evening.

 

PF

[MisterV]

When are the fees payable?

 

Thanks PF, your a star.

Sleep well.

[pompeyfaith]

If you need to make an N244 Application that will be payable at time of making the application.

 

As for costs that can go both ways depending if you win or lose and are not payable if at all until after the case.

 

Again I had costs of £7000 nearly but optima withdrew those costs because they made a big error in charging too much so to date i have paid zero.

 

There are limits to what can be charged as per the CPR RULES.

[itsamomentintime]

there will not be any costs as you cannot lose this - the CCA is unenforceable, simple as that

[pompeyfaith]

Well u know that i know that as does the majority of this forum, but sadly some judges still use the moral issue with in mbna's case is totally wrong because it is a well known fact they distroyed a lot of agreements around 2005

 

but as misterv,s application/agreement states that it is regulated under the CCA 1974 he needs to ensure this act is used and not common law furthermore this act overrides any common law

[itsamomentintime]

Well u know that i know that as does the majority of this forum, but sadly some judges still use the moral issue with in mbna's case is totally wrong because it is a well known fact they distroyed a lot of agreements around 2005

 

county court judges cannot over-rule high court rulings

[MisterV]

Is that a good thing that county court judges cannot over rule high court rulings?

 

Surely the 1974 CCA is what it all hinges on?

[itsamomentintime]

court ruling states that no correct CCA = no enforcement action can be taken

 

see here:

Wilson v First County Trust

[MisterV]

Thanks you two, much appreciated. Letter gone let battle commence.

Good luck on 14th PF.

Now I will do some reading, thanks for email.

Talk soon.