MBNA v Blood Money

[Blood Money]

Hi Guys,

 

Received court papers from Northamptom Bulk Centre. Optima acting for MBNA. Have got a copy of a signed application form which I think is non compliant - but difficult to be sure as bits are illegible & MBNA refuse to send me anything else.

 

Clock is now ticking on court response. I will get the particulars of claim, application form & default posted up as soon as Ive removed all info. In the meantime I've written to Optima expressing suprise they have commenced proceedings without checking there is a valid agreement in place & ignored my request for a copy under CPR.

 

I'm out of work now & in negative equity.

 

In the absence of something I can read properly from MBNA I think there is something called an embarrassed defence I picked up from other threads. Worth trying?

 

Alternatively can I start case for disclosure? As they jumped in 1st is it too late to start now & is it worth doing given a paper trail of many recorded delivery letters, 5 of which ask MBNA/Optima for CPR disclosure?

 

Initial thoughts please. I don't want thes buggers to win but equally I can't afford to have a CCJ against me.

 

BM.

[bazaar]

Yep file the embarrassed defence, best to draft it and post on here for further advice, someone will advise more if needed, if its urgent just click on the red triangle and ask for help.

CPR 31.14 request to the claimants for the executed agreement and statements etc of account.

Heres a thread similar to your case, they'll be plenty more too.

http://www.consumeractiongroup.co.uk/forum/legal-issues/194802-embarrassed-defence-procedure.html

[diamondgirl]

Hi BM

 

Got your PM hate Thursday as its a late start and finish. Do as bazaar said above. Found your new thread.

What date do you have to respond by?

Don't forget you need to acknowledge it but you don't have to do it immediately you can do it on line as its with Northampton.

Did you write and ask them for a legible copy CCA as you are entitled to a legible one.

Anything you have that you can post will be of great help.

Do read about the embarrassed defence procedure.

The main thing at the moment is to get everything together, if you've not already done a SAR do one.

I know you are out of work at the moment but a judge will never order you to pay more than you can afford even if its only £1.

You only need to state on the acknowledgement that you intend to defend all. After that you will receive an AQ which you will need your defence for.

I know you say the CCA is very poor but try to scan it and post if you can if you do it through photobucket you will be able to see for yourself if its going to be legible enough.

Don't worry were all here to help.

DG:)

[Blood Money]

Thanks for advice Bazaar & DG. Finally got the stuff depersonalized & scanned. I have posted everything up now.

 

First - the Application form (alleged CCA) & the T & C they sent me. These have been posted before & are very poor copies.

1) I can't see anything linking the front to the back page.

 

2) There are T & C which refer to other T&C clauses which are just not there (eg 2.1, 8.11, 9.1, 9.4, 10.5, 10.6, 14.1, 15).

 

3) The T&C refer to other MBNA Credit Card T&C. The phrase used is:

 

'Set out in paragraphs 1-12 below are Conditions S and 9 of the MBNA

Credit Card Terms and Conditions of use. The other conditions referred

to in those paragraphs and the applicable definitions can be found in

those Terms and Conditions'

 

I do not have these T & C and should ALL T&C be contained within an

agreement for it to be valid?

 

4) No space for MBNA representative to sign & no MBNA signature.

 

5) The application has got my signature on it.

 

6) The application form dates back to 1997.

 

7) Looking at the MBNA examples page - the comment is that it may be valid & no default charges are mentioned.

 

8) The T&C give a monthly interest rate (& some APR's for different types of transaction which I cannot read).

 

9) Minimum payment is stated as 3% or £5 per month except in conditions

9.4, 10.5 & 10.6 (WHICH are not shown).

 

10) No indication of term mentioned

 

11) no default charge information is present.

 

12) Only mention of amount of credit is the phrase

 

'We will from time to time choose the credit limit and notify you of

this'.

 

13) The front sheet is larger than the supposed rear sheet - is this realistic? Some on the MBNA examples thread seem to be similar to this.

 

DO #8, #9, #10, #11 & #12 ABOVE CONSTITUTE SUFFICIENT INFORMATION TO BE ACCEPTED AS THE PRESCRIBED TERMS?

 

Second - the default notice. Not really looked into this yet but read some threads about them being invalid & not issued within correct time scales. Any thoughts on this one? I have not kept envelopes & only read this tip after it was too late.

 

Third - the Court papers. I have another 11 days to respond so no desperate panic yet. Can also add another 14 days to submit defence.

 

Optima have also written again. Having written to advise them I am out of work & demanded a copy of the agreement they have declined to enter into correspondence & sent the letter on to MBNA. I still do not have an agreement other than this application form. How will a judge look at their refusal to deal with the CPR request or any attempt to resolve this without resorting to court?

 

I have just sent a SAR to MBNA.

 

I am putting together an embarrassed defence & will post it when I have finished.

 

A lot of questions in this post - sorry. Many thanks to everyone who has offered help so far.

 

Cheers

 

BM.

 

Bugger - wrote this as a quick reply & can't add attachments - they are attached to a separate post below.

[Blood Money]

Here they are.

 

Application Form.PDF

 

Default Notice.pdf

 

Court Papers.pdf

 

BM

[Blood Money]

Bump

[Blood Money]

Bump

[Redfish]

Hi Blood Money, just to say my solicitor told me one of my agreements was potentially unenforceable because the lender had not stated how they were going to determine the credit limit - they had only stated they would set a credit limit and notify me of it, which isn't how they are going to determine it. That was enough for the solicitors say that it was worth taking to court and arguing in front of a judge. As these are no win no fee solicitors with no up front charges they rely on insurance in case they lose, and so they can only take on cases that the insurers say have a high enough chance of success. This looks the same for you.

 

If you are going to take this to court anyway it might be worth making this argument.

[Blood Money]

Hi Redfish, Did it go to court & if so what hapened or is yours still ongoing? I'd rather be on stronger ground than just this one point if possible.

[Redfish]

Hi BM

 

Mine is just starting after I got my agreement back, so I can't help you with any further experience there, sorry.

 

If I get a chance to talk to the manager of the solicitor who advised me I will see if I can squeeze in a question on the precedent for that challenge, and see if he can quote any case law at me to help you. I found out the manager's name today, by asking who would be the person I needed to talk to about some other query, and it is a name I have come across before, someone who is a well respected authority in the consumer credit field.

 

I just think it's worth giving it a shot if you are going to court anyway, given that my solicitors are riding with only this and are planning to take it to court if it doesn't settle before - on a no win no fee.

[Blood Money]

Cheers Redfish, will be interested to see what he says.

 

BM.

[diamondgirl]

Maybe I missed a bit on the Application Form its a bit small for me to read but did it give the bit about right to cancel.

Default notice majority seem to give about 14 days would the dates roughly tally ie guess at date of letter to date they said you had to pay?

Sorry I'll have to go now not at all well today catch up with you tomorrow.

DG tyring to

[Blood Money]

Hi DG,

 

Yes the 'Right to Cancel' is on the front page. Is this important?

 

The Default Notice gave 19 days.

 

Get well soon - all the best.

 

I would be grateful if someone could comment on the points raised in post #4.

 

BM

[robcag]

 

The Default Notice gave 19 days.

 

 

What were the actual dates though?

 

This could be important, e.g. if there was a bank holiday during the time between the date posted and the deemed service date, or perhaps the DN was sent 2nd class or some other inferior service was used.

 

Cheers

Rob

[Blood Money]

Hi Rob,

 

Dated 22/06/09 & given till 10/07/09.

 

19 days in total (including date sent) 4 of these days were Sat & Sun's. No bank holidays. Didn't keep the envelope & can't remember if 1st or 2nd post or date received.

 

Unless there is anything wrong with the wording I dont think this is going to help me.

 

BUT - the DN refers to paragraph 8 of the agreement & repayment of arrears. In the T&C sent to me paragraph 8 is about the APR. Backs up that this is an app form & not an agreement.

 

Any thoughts?

[robcag]

Hi BM

 

To save me re-typing everything, you might like to check this thread, post #16 and onwards, and even further on;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/209556-mint-loan.html#post2298799

 

Cheers

Rob

[Blood Money]

Hi Rob,

 

Thanks for that. I've had a look at the thread & can use a lot of the embarrassed defence wording if I go this route.

 

I could really do with someone commenting on post #4 and my comment on the DN in post #15. Time is ticking by very fast now. Thoughts anyone?

 

BM

[Sunshine54]

hi BM

I can't assist personally but have you tried searching the forum? I use the search facility a lot and it's really helpful.

good luck

[Blood Money]

Hi Sunshine,

 

I've been through loads of posts - gone square eyed! But I'm no solicitor & I could do with some assurance that I have got my facts right before I go to court. Time is getting a bit short now & could really use some help with this.

[citizenB]

Hi BM, just to let you know, I am here.. just having a look

[robcag]

Hi BM

 

Hi Rob,

 

Thanks for that. I've had a look at the thread & can use a lot of the embarrassed defence wording if I go this route.

 

I could really do with someone commenting on post #4 and my comment on the DN in post #15. Time is ticking by very fast now. Thoughts anyone?

 

BM

 

Hi Sunshine,

 

I've been through loads of posts - gone square eyed! But I'm no solicitor & I could do with some assurance that I have got my facts right before I go to court. Time is getting a bit short now & could really use some help with this.

 

Apologies if I'm guessing wrong.

 

My reason for pointing you to the thread above was not regarding the use of an 'Embarrassed Defence', but was about putting the Claimant to strict proof that they sent the DN by 1st class post, failing which it would be deemed sent by 2nd class, thus not giving you the required 14 clear days.

 

Because the DN required you to make the requested payment BEFORE THE DATE SHOWN (which you say was 10 July) that means the latest date you could have paid was 9 July. Allowing for 2nd class postage would only give you 13 clear days.

 

Cheers

Rob

[citizenB]

Hi Rob,

 

Dated 22/06/09 & given till 10/07/09.

 

19 days in total (including date sent) 4 of these days were Sat & Sun's. No bank holidays. Didn't keep the envelope & can't remember if 1st or 2nd post or date received.

 

Unless there is anything wrong with the wording I dont think this is going to help me.

 

BUT - the DN refers to paragraph 8 of the agreement & repayment of arrears. In the T&C sent to me paragraph 8 is about the APR. Backs up that this is an app form & not an agreement.

 

Any thoughts?

 

Ok, have had a look back. The POC is extremely vague isnt it ?

 

They say "Demand for payment has been made". Have they sent a Formal Demand or Termination notice to you wherein they made a demand for the Total amount outstanding ?

 

Anywhere on the POC have they mentioned the agreement number ?

 

Have they sent you separate terms and conditions both those at the time of the account opening and current terms and conditions.

 

The only things I would question in the DN is one point you have already which pointed out.. they are defaulting you for a breach which does not exist.

 

The other is did this DN demand the total amount outstanding ?. Because I cannot see where they might have put...

 

Credit limit = £ ????

Balance = £ ?????

Arrears = £ ????

 

Finally, as Robcag has pointed out you will also need to put them to strict proof on the posting of the DN because from the dates you have adivsed, had 2nd or the even slower TNT or UK mail be used then you would not have had the correct amount of time to remedy the breach.

 

If they have demanded the full amount in the DN then I think that is also incorrect.

 

IMHO, you would be best advised at this stage to enter an embarrassed defence.

 

I have a couple saved on my computer so will go and unearth them for you.

 

BRB

 

PS, one other question.. apart from the Subject Access Request, did you use CPR31.14 to ask for documents from the solicitor ?

[Blood Money]

Thanks for input Rob & CB.

 

1. I used CPR 31.16. That was what was on the template I downloaded. Is this wrong?

2. The DN Letter states the payment they require. It refers to repaying the 'amount of any arrears on the account' but does not say the payment required is the arrears amount. It does not ask for the full amount.

3. It gives the balance but not the credit limit.

4. There is no agreement number on the POC.

5. They sent my current T&C.

6. They sent what they calim are original T&C but these are incomplete. Please read post#4. The T&C refer to other T&C which I did not receive & could not have been part of the original agreement - there is not room on the form & why have 1 set of T&C referring to another set of T&C on the same document? It would all be one.

7. I have sent off a SAR request.

8. I am sending a CPR request for proof of 1st class postage.

 

Any thoughts on the application form/agreement? I dont see a link from front to back page, there are many T&C referrals to paragraphs not present, etc. Please see my comments in post#4. Is this valid? I don't see how it can be.

[citizenB]

The POC is extremely vague and there has been no Agreement/default notice or statement of account showing how they have arrived at the amount they are claiming.

 

Embarrassed defence 1

 

IN THE XXXXXXXX COUNTY COURT

CLAIM NUMBER XXXXXXXX

 

BETWEEN:

 

 

MBNA Bank ?????

Claimant

And

Blood Money

Defendant

 

 

 

DEFENCE

1. The particulars of claim discloses no cause of action and are self evidently an abuse of process, in that they fail to deal with the basic rules of pleading in accordance with the CPR (even allowing for the constraints of the bulk issue system).

2. Further to that above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxx xxxxxxxxxxxx

 

Date xxxxxxxxxxxxxxxxxxxx

 

Send the following letter to the claimant's solicitors, you can attach a copy of your defence to this. Dont sign either the letter or the defence .. print your name.

 

' Herewith copy defence by way of service, the same having been filed with the court.

Please serve amended particulars of claim and plead your client's case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial. I request that you attach to the particulars a copy of the agreement upon which the claimant relies. The matter will be transferred to my home court and the claimant will have to produce the document, in any event. In those circumstances you should plead in accordance with the CPR rather than the Northampton County Court regime.

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided'.

[citizenB]

Thanks for input Rob & CB.

 

1. I used CPR 31.16. That was what was on the template I downloaded. Is this wrong?

2. The DN Letter states the payment they require. It refers to repaying the 'amount of any arrears on the account' but does not say the payment required is the arrears amount. It does not ask for the full amount.

3. It gives the balance but not the credit limit.

4. There is no agreement number on the POC.

5. They sent my current T&C.

6. They sent what they calim are original T&C but these are incomplete. Please read post#4. The T&C refer to other T&C which I did not receive & could not have been part of the original agreement - there is not room on the form & why have 1 set of T&C referring to another set of T&C on the same document? It would all be one.

7. I have sent off a SAR request.

8. I am sending a CPR request for proof of 1st class postage.

 

Any thoughts on the application form/agreement? I dont see a link from front to back page, there are many T&C referrals to paragraphs not present, etc. Please see my comments in post#4. Is this valid? I don't see how it can be.

 

 

Nope, sending the CPR31.16 is ok. If they just asked for the arrears on the DN then that is ok.. although if they had asked for the full amount it would have been better

 

Did you receive a Letter before Action.. ie a letter saying if you didnt cough up the full amount say within 7 days then they would be bringing this action against you ?

 

agreed, other than the handwritten numbers (which could have been put there yesterday) then there is no link between what they say is the back and front of the agreement.

 

Just amending a 2nd defence for you.