MBNA/optima legal - Summary cause Summons Scotland. **SETTLED BY £1 payment - MBNA HAD NO DOCS**

[pancake roll]

Hi,

I am a newbie.

Please can anyone help me,

 

i have been issued a Summary cause Summons by MBNA for £3148.15 .

 

MBNA instructed Optima Legal in Glasgow to chase the debt.

 

I have been paying £5.00 token payment since last November 2008.

 

I have requested MBNA my Credit Agreement and SAR last December 2008

they wrote back and said they cannot provide me with the documents and sent my £10.00 back

and also the £1.00 went towards the debt.

 

I have written to Optimal that the account is in dispute , and

they wrote back that they still going ahead with the summons.

 

I rang MBNA and asked them to check if this account is still with them and

they confirmed to me last week that the debt was sold on in March 2009 to Link financial (i have the conversation taped).

 

I am a bit scare to what to do with this.,

i have been to my local CAB and they advised me to agreed to the debt in question

and fill in the time to pay direction because i owned a house and have a car.

 

all i can offer them is £5.00 amount because i have another 7 Credits cards debt (total £80k) which i am dealing with now.

Some of them are going through the Debt collections stage.

 

I know my offer of £5.00 a month is going to be turned down MBNA,

 

it it worth defending this?

 

I would be very gratefull if anyone could help me or their opinions on this matter, or if anyone has been through this.

 

I would love to defend this, but do have enough evidents to do this.

 

I need to know what do i put in my defence

 

Much appreciate for all help.

 

pancake xx

[Monty2007]

Dear Pancake

 

Please don't worry, this sounds very winnable and I am dealing with another MBNA case in Scotland which is with a similar shambles.

 

Can you confirm that you sent off a Section 78(1) request under the Consumer Credit Act 1974?

Did you use a template letter from here.

 

The SAR is covered by the ICO and we will need to get a complaint off to them.

 

The bit that I don't understand is why the writ was issued by MBNA given that they have sold the debt to LinkFinancial?

So they will need to provide a letter of assignment.

They may have provided this to you?

 

You need to defend the action, given that you have not been provided with a true copy of the properly executed credit agreement

we will need to serve an Incidental Application to the Sheriff court that issued you writ.

 

Can you also post up the writ and remove any personal information.

 

Did they send you a default notice and/or termination notice?

 

Here is the IA that you need to complete,

please ensure you use exactly the same name and address details as on the writ

and check the Return Day (I have left it as 1st Sept), then double check it again.

 

You will need to send (Guaranteed Next Day Delivery) or hand deliver three signed copies to the Sheriff Court.

 

 

You will still need to complete the defence part of the writ and

I would suggest that you tick the Defend section and counter claim

since I assume that they will have added lots of charges?

 

I can help you with submitting the defence part when you have submitted the IA. Let me know your Return Day?

 

The steps seem daunting at the start but it is easy and this one looks like winnable as long as you get a fair hearing in front of the Sheriff.

 

Court Reference Number: xxxxxxxxx

 

 

 

 

SHERIFFDOM OF XXXXX at YYYYYYYYYY

 

 

 

 

INCIDENTAL APPLICATION

 

in causa

 

Their name as on the writ

Their address as on the writ

 

PURSUER

 

against

 

You Name as on the writ

Your Address as on the writ

 

DEFENDER

 

 

The Defender seeks an order for the recovery of documents and further information from the Pursuer in relation to the Summons made against the Defender. These documents are vital to the Defender in order to compile a full defence and counter-claim. The Defender requires the following information to be supplied to him forthwith and at least two weeks prior to the Return Day of 1st September 2009:

 

1. A copy of the properly executed loan Agreement in relation to account referenced xxxxxxxxxxxxxxxxxx and specified within the Pursuers writ, together any terms and conditions that applied to the account at the time of alleged default and at the time the account was opened.

 

2. All records the Pursuer holds on the Defender, including, but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to the above referenced account.

 

b. Where there has been any event in the above account history that has required manual intervention by any person, the Defender requires disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to this account.

 

c. True copies of any Default Notice(s), Termination Notice(s) or enforcement notice(s) that the Pursuer claims to have served upon the Defender, together with a copy of any proof of postage.

 

d. Details of any collection charge(s) added to the account; specifically, the date these were levied, the amount of the charge(s), a detailed financial breakdown of how the charge(s) were calculated, and what the charge(s) cover.

 

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

f. A genuine copy of any notice of fair use of the Defender’s data as required by the Data Protection Act 1998.

 

g. A list of third party agencies to who the Pursuer has disclosed the Defender’s personal data and a summary of the nature of the information that has been disclosed.

 

h. Copies of statements for the entire duration of the alleged credit agreement.

 

 

3. Any other documents that the Pursuer seek to rely on in court.

 

 

In respect whereof

 

 

Signed ......................... ......................... ...............

 

 

 

Date: xx July 2009

Your Name

Your Address

 

DEFENDER

[George1958]

Good day Pancake Roll

 

I hope you don't mind but I've subbed to your thread.

 

Regards

 

G

[pancake roll]

Hi monty and gorge,

Thanks you monty for your advise.

Can tell me how to post my writ?.

The returned date is 14th August and the calling date is 21st of August.

I would like my say in court and hope to win.

 

 

I went into financial trouble last year and wrote to all my creditors (started last September 2009),

most of the banks were quite good and allowed for me to pay £5.00 token payment,

but now most of them are selling off the debt to DCA which all the nessarry letters have gone out.

 

 

I was paying ABBey MBNA £5.00 a month since last December 2008 ,

they were sending me monthy statement with the giro slips to pay my £5.00 monthly,

but they decided to stop sending the giro slips so i did not pay anymore payment,

knowing that i will start getting the haress phone calls from the DCA.

 

 

I also requested CCA and SAR last December 2009,

MBNA sent back the £1.00 and £10.00 fee stating that they cannot provide me with the papers.

 

 

I was served with this writ by they solicitors OPtimal Legal in Scotland demanding to pay back £3148.00.

I wrote to Optimal legal on the day that i received the writ, and informed them that the debit is no longer belongs to MBNA

and i had no written confirmation of letter of assignment only a taped conversation saying that it has been sold to Linksfinancal.

 

 

I do not remember if i was sent default notice or termination notice, all i keep receiving was NOTICE OF SUMS IN ARREARS.

 

My return date is 14th August and the calling date is 21st August.

 

Monty, When do i fill in the Incidental application form ?.

Do i fill the form now, or after the calling date?

 

 

I went to the court house today, but forgot it was a scottish hoilday.

 

 

So if i defend , MBNA have to be at the calling date , is that right?

 

I am having trouble posting my writ Monty, so i will write it out:

 

STATEMENT OF CLAIM

1. The Pursuers are as designed in the instance. The defender resides at the address in the instance. The defender is domiciled there. This court accordingly has jurisdiction. The Pursuers have no reason to believe that there is any agreement to prorogate another Court's jurisdiction or other proceedings in another court between the parties in respect of the matters raised in this Writ.

 

2. The Defender maintains an account with the pursuers. The pursuers granted the defender credit on this account subject to the defender maintaining an agreed repayment plan. The debit balance on this account is the sum of £3148.15. Copy certified account statements will be produced.

 

3. The Defender has not maintained the agreed repayments. There remains a balance outstanding due and resting owing to the Pursuers by the Defender as at the 14th of May 2009 of £3148.15 which is the sum sued for.

 

4. The Defender has been called upon to make payment of the sum sued for has refused or delayed to do so and this action has been rendered necessary."

As you can see from MBNA stement of claim, they mentioned i had and agreed a repayment plan, which is a load of rubbish, they refused my offer of payment of £5.00.

 

Regards

 

Pancake

Edited August 3, 2009 by pancake roll
wrong year

[pancake roll]

Good day Pancake Roll

 

I hope you don't mind but I've subbed to your thread.

 

Regards

 

G

Hi Gorge,

How are you. No i dont mind. Are you in the same boat ?

I have over £80,000.00 of credit card debt to deal with. I have had these cards for over 10 years . I decided last year to pull myself together and not use credit to pay off another credit. ABBeyMBNA is the only a small amount. I have other cards that is over £10,000.00.

I am still waiting for my payment from COOP bank regarding missold PPI. I have left it with the FOS.

 

pancake.

[George1958]

Good evening Pancake Roll

 

My own debt totals well over £40K, all due to a business partner helping himself to the company funds.

 

Anyway enough of that as it almost consumed me at one point, but getting back to the matters in hand, I have MBNA with their talons sharpened trying to get almost£12K out of me.

 

Due to illness etc, I've let things slip a wee bit, and I've not followed up on my CCA request, they returned my SAR asking for ID.

 

So, I'm now sharpening my own talons and getting ready for the fight ahead.

 

As far as I'm concerned MBNA are just a bunch of chancers, sorry alledged chancers, and i reckon that of that debt that almost £5K is in interest and other unfair charges.

 

I'm following your thread with a great deal of interest, no pun intended, I wish you well.

 

Regards

 

George

[Monty2007]

Hi monty and gorge,

My return date is 14th August and the calling date is 21st August.

Monty, When do i fill in the Incidental application form ?. Do i fill the form now, or after the calling date? I went to the court house today, but forgot it was a scottish hoilday. So if i defend , MBNA have to be at the

 

Hi Pancake

 

Your return date is not too far away so you need to complete and submit the Incidental Application as soon as possible.

 

Ensure that you check the address and all details, date and sign. You will need to send (Guaranteed ND Delivery) or hand deliver three signed copies,

 

Your defence will have to be submitted by 14th August and be a holding defence by virtue of the information request in the IA. It is likely that the Sheriff will hear the IA at the calling date given it is close. As long as you have stated you intention to defend then that will be fine.

 

Can you verify that you sent a Section 78(1) request and the £1 fee? You mentioned that MBNA could not supply the agreement, this letter will be important. Have they supplied you with any form of application or T&C's?

[pancake roll]

Hi G,

Thanks for that.

 

PancakeX

 

Hi Monty,

I have just finished typing out the Incidental application, my typing is slow and spelling and grammer is dreadful.

 

Yes , i requested the Section 78(1) and they sent me back the £1.00 and also the £10.00 for SAR request.

They cannot supply me any form of application or T&C.

 

 

I have still got the letter from MBNA

 

I just also realised that i wrote to Optimal Solicitors requesting the documents on 15th july because i was following the court system back in England, i was not aware of the Incidental Application.

 

 

Should i mentioned this to the Sheriff office that the solicitors had my request on 15th July 2009, which they have not bottered to answer back.

 

Monty, Please could you help me with my defence statements.

 

 

I will delivered the IA by hand on tuesday,

i did call the court office today but forgot it was a scottish hoilday.

Many thanks

 

Pancake x

 

Hi Monty,

Been to the local courts this morning (tuesday) to hand my IV and because the return day is near, the courts advise to hand in my defence statements as well together with my IV.

 

 

They said they will read the IV on the calling date now.

The clerk said at this stay my defence can be short and brief to save time writing long statements.

Any advise what to put in my defence statements.

 

Cheers. and many thanks.

 

Panck x

[Monty2007]

Hi Pancake

 

This is fine, please don't worry - I would expect the IA to be heard at your calling date so best get in the defence.

 

You will need to use the form that they will have sent and indicate that you wish to defend this writ.

 

Here is a holding defence since you will need the documents specified in your IA to pull apart their documentation:

 

-------------------------------------------

Holding Defence

 

The Defender denies the sum craved for by the Pursuer.

 

On xx/xx/2009 the Defender requested that the Pursuer (check if it was Optima or MBNA and amend accordingly) provide her with a true copy of the properly executed credit agreement as prescribed under s78(1) of the Consumer Credit Act 1974. The Pursuer refused to respond to, and failed to comply with this statutory request and as such was constrained from enforcement by s78(6) of the same Act. Given that the Pursuer is therefore in material breach of the same Act in attempting to enforce the alleged agreement, the Defender craves that this action should be dismissed

 

The Pursuer also failed to provide the Defender with a Default notice in relation to the alleged agreement as required under s87(1) of the Consumer Credit Act 1974.

 

Accordingly, the Defender has issued the Pursuer with a request for documentation and information as contained within her Incidental Application dated xx/xx/2009 and requests that the Court order the Pursuer to conform.

 

The Defender wishes to defend this claim in full and issue a counter claim for damages to the Defender's credit rating that the Pursuer has caused. In this respect the Defender cites the case of Richard Durkin v DSG Retail Limited and HFC Bank plc, (Judgement of Sheriff J.K. Tierney, Sheriffdom of Grampian Highland and Islands at Aberdeen (A187/04)) a copy of which will be provided within the Defender's First Inventory of Productions.

 

In respect whereof

 

Signed .................................................................

 

Date: xx/xx/2009

 

Your Name

Your Address

 

DEFENDER

-------------

 

Once you have completed the Court Defence form and attached your holding defence then check it 2-3 times and take in 3 copies.

 

You can of course send in the three signed copies of your defence, but ensure you send them via Royal Mail Guaranteed Next Day Delivery.

I would suggest taking them in by hand if you have the time.

 

Given that MBNA have sold this to Optima Legal you may also have to include the MBNA in the process or issue a writ against them later.

I am assuming that the Pursuers are Optima Legal given they have purchased it?

 

I would also advise getting all your documents and letters in order since you may need these when you put together your First Inventory of Productions.

 

Do you have the S78(1) request and did you send it RD?

 

Best also to do a SAR on both MBNA and Optima Legal if you have already not done so recently.

[pancake roll]

Hi all in Scotland,

 

Just handed in my IA to the courts this morning and the calling date is 21st August , i have to be at court on 21st.

 

 

The clerk at the sheriff office said, it might be postpone for another date, but they will inform me in due course.

 

I am not looking forward going to court, hopefully i have some cagers able to help me go through with this.

I will be grateful if i could get some advise with this.

cheers everybody.

 

pancake x

[Monty2007]

You have no need to worry.

The Sheriff will appreciate that you are a Party Litigant (i.e. in person) and not represented so will explain things to you.

It will feel daunting at first but many on here have been through it and after the first time it is a lot easier.

 

The IA hearing will be straightforward

the Pursuers may oppose what you want BUT it will go against them and the Sheriff may simply order them to conmply anyway.

 

 

They may have the first hearing at the same time so it will be even easier since you are only able to submit a holding defence in which you deny the sums being owed.

 

A full defence will draw out the issues with the PPI and also the DN.

 

Ensure that you arrive 20 mins before and tell the Clerk that you have arrived and he will tick your name off the list.

 

 

If you do get approached by the other side then be careful.

If they try to make an offer only discuss such "without prejudice"

(cannot be submitted or heard as evidence) so they can't trick you.

 

 

If there is any settlement negotiation then this has to be done in writing but I doubt it will happen at this stage. I just wanted to warn you.

 

When you are called into court the Pursuer will start first and state the nature of their writ, you will be seated at this stage.

 

 

Rest assured this is a civil case and will normally be in a small room rather than a massive court with all the trimmings.......

 

 

... When the Sheriff speaks to you then stand up and listen carefully.

He will not expect much from you since it is clear where the pleadings are at,

 

 

namely that you are defending and have served an IA for more information.

Simple. I would expect you to be in and out in 10 mins.

 

Good luck and don't worry. The Pursuers would like the process to intimidate you, it is all part of the game! Don't let them..............

 

The clerk said at this stay my defence can be short and brief to save time writing long statements.

 

Hmm, nice of him but don't listen to Clerk's......your Defence will be as long and detailed as it needs to be;)

 

How are you getting on with the Defence I sent?

[pancake roll]

Hi monty,

Thank you for that.

Papers are in today.

 

I still have the requested letter which was sent by recorded delivery and also the SAR request letter.

 

MBNA use the £1.00 towards the debt but sent the £10.00 back saying they can not provide me with the documents.

 

So finger cross hope this will be dimissed by the court.

 

I have a taped conversations with MBNA confirming that all my three accounts is now been passed on the DCA's ,

the account in question has been passed to Link finanical March 2009.

 

I rang Link...and they do not have the accounts anymore,

do you think Optimal got the debt now.

 

Optimal said they are not DCA but they are solicitors acting for MBNA.

 

Can i use the taped conversations as evidents in my court case?.

 

This is the first time in my life that i have to go court ,

i only live in a small town,

but who cares as long i have my say in court with these Banks.

 

I had 18 months of worry and sleepless night with all this, i have still to deal with my currents accounts with large overdrafts with TSB and HBOS.

 

All the best to all,

Pancake x

[Monty2007]

Hi Pancake

 

Yes, you can use taped conversations as evidence but would have to submit this along with any other evidence within your Inventory of Productions.

 

Monty

[pancake roll]

I was in court today defending.

 

My incidental Application and defence was agreed and

 

i have got to go back to court in a months time.

 

MBNA have a month to supply me with the documents and information.

 

Monty, how did you get on the other day in court?.

 

It was not to bad today in court, i only had to say that i wish to defend .

 

Monty have you gone pass this stage.

 

I will be very gratefull if you Can tell me,

what to do in the next hearing and what should i prepare and expect.

 

I have a month.

 

Do i contact MBNA or just sit tight. Many thsnk.

Pancake.

[Monty2007]

Hi pancake

 

I am pleased that your IA hearing went well,

they will have to supply the documents listed and you can always ask to amend you defence if they submit anything unexpected.

 

 

Small and Summary cause actions are informal and the Sheriff's objective is to get the parties to agree a solution or if they can't make judgment according to law.

 

My IA also went well and I am back on 17th Sept.

 

The hearing will begin to get into the details of your defence

it is a good idea to read up on the relevant parts of the Act and statues that you intend to use.

 

 

The court will make allowances for you being a party litigant but preparing and planning now will help you in a few weeks when you are back.

[pancake roll]

Hi Monty,

Thank you for that.

 

My hearing is a week after yours. I shall read up the parts of the Act.

 

I have already printed it out the relevant parts of the Act.

I will be so grateful if you could guild me through this as this is one of the accounts with MBNA,

I still have another two accounts with MBNA that will be going through the same channel.

 

Would i have to write up my full defends for the next hearing?.

 

The court have given a month to MBNA for the documents,

should i get the documents before the month up from them or can they produce it on the day of the hearing?

 

Do you think i should put in another IA requesting my credit agreement which bears my signature and not using the section77/78 CCA 1974?

Pancake x

[Monty2007]

Hi pancake

 

If MBNA have not provided you with the requested docs then you can ask for more time to prepare a full defence when the case next comes before the court and I would recommend this as your approach.

 

 

It is critical to get them to produce their Inventory of Productions before you defend otherwise you are compromised.

 

I would not put in another IA at this stage.

[pancake roll]

Hi Monty,

Rang the court today, and they inform me that the MBNA said they will produce the documents to me to the court in 4 weeks .

 

The court said at this stage i have to turn up in court to see if the MBNA have the documents.

 

Monty, should i prepare a short written defends for the next hearing to hand to the court on the day?

 

Well, at least i got a few weeks before the next hearing.

 

Monty, have your Creditors got all the documents for your next hearing? Well, I know MBNA can not provide mine.

 

Pancake

[Monty2007]

Dear Pancake

 

I am in the same position.

John Lewis sols have the docs but won't produce their Inventory of Productions until the next calling date.

 

 

The Sheriff said he will allow me an extension to any hearing if I don't have enough time.

 

 

It seems standard in Scotland with small claims and summary causes.

 

 

They have to play fair so don't worry.

 

Monty

[beetle1234]

Hey pancake

 

have read your story to date with great interest.Any developments since last update ?Good to see you have Monty on your side.Very best of luck with this.

[ajs444]

Subbing with interest.

[sgianthebard]

What happened with this case?

[maroondevo52]

What happened with this case?

 

Something I would also like to know, it always regrettable when threads are not updated.

Pancake roll was last on site in June this year.

[pancake roll]

Hi,

Sorry for not updated this case.

 

 

MBNA could not provide me with documents that requested for the hearing .

 

 

On the third hearing, MNBA solicitors offered to withdraw the claim if i agree to pay them £1.00 (one pound).

 

 

I agreed and still today i still not pay the £1.00.

 

Ps Happy new year to all.

[maroondevo52]

Thanks for the update pancake.