MBNA Court Claim - Help!!

[igurden]

Hi All,

 

I have just joined this Forum and had a look round and so glad to see people managing to get help, i was hoping i might be able to get some as well!!

 

I have a few credit cards that due to loosing my business and relationship problems i now am having trouble paying.

 

The main one now being MBNA. I have tried over a few months to get them to agree to let me pay a small amount but they refused and said i had to pay a higher amount, that from my income and expenditure they could see i couldnt afford.

 

I have know had communication from Reston their solicitors.

 

They said i had to either pay the whole amount or i would be taken to court.

 

I sent them a letter stating i had offered MBNA a reduced amount and asked for a copy of the original CCA.

 

Restons took a while to reply but they sent me the CCA and a copy of a letter supposedly sent by MBNA that i never recieved.

 

They then sent me a letter a few days later stating that MBNA had refused my reduced offer and on the same day i got a Claim form from the Court initiated by Reston on behalf of MBNA.

 

The CCA was taken out in 1999 and i have attached the copy they sent to me. The letter from MBNA Restons forwarded was just a copy of the New Version of there terms and conditions.

 

The POC of the Claim states:

The Claimant claims payment of the overdue

balance due from the Defendant under a

contract dated on or about 07/10/1999

in the sum of 19223.73 inclusive of

interest to the date of this summons at

8% per annum from 01/07/09 to 04/08/09

 

PARTICULARS a/c no:- ..........

 

DATE ITEM VALUE

01/07/09 Default Balance 19081.53

Post Refrl Cr Nil

 

 

04/08/09 Interest 142.20

TOTAL:- 19223.73

 

Together with:-

Interest pursuant to s69 County Courts Act 19

at the rate of 418.23 pence per day

to the date of Judgment or sooner payment.

 

I have read that i need to send a copy of CPR 31.14 to Reston and also defend all of this claim with the court? is this my best action?

 

Any advise would be very muc appreciated.

cca.pdf

Edited August 6, 2009 by igurden

[maroondevo52]

Hello and Welcome, igurden.

 

I'll move this thread to the Legal Issues Forum.

 

Regards.

 

Scott.

[summerbreeze]

All your details are visible ...please amend and repost!

[fedup74]

Hi igurden welcome to cag. Just to warn you Restons are known to trawl this forum so if I were you I would remove all of your personal details from this APPLICATION FORM!!! There are no prescribed terms so I would say it was unenforceable. Restons are so quick to jump on the court bandwagon and they just ignore any requests for info that you make. I think they are one of the worst (speaking from bitter experience) As I say I would remove any identifying info as Restons do read this site and may send you a letter warning you not to listen to forums like this, I think they even bought it up before a judge once!!! You will get lots of help and advice here, don't worry:)

[igurden]

Thanks FEDUP - hope its ok now. What would be my best course of action if there is no prescribed terms and how can i show this???

[summerbreeze]

Im my opinion those T and C in the long narrow column have been squished on to the reverse of the application form.

 

How glad I am to see that reverse of the Platinum Plus application cos thats how I remember mine was [ from 1998] and what they sent me is nothing like that .

 

Devious devious immoral xxxyz@*!

[igurden]

summerbreeze...humm that would be about right!!! well they would need to produce the original at court wouldnt they?

[summerbreeze]

Well .... it can depend on the judge.

 

Have you SAR them ? Sometimes they neglect to send out the ' reverse ' when they are subject to the Data Protection Act .

 

Have you been defaulted ?

 

MBNA have never sent a compliant DN that I have seen

[igurden]

I am sending CPR 31.14 and CPR 18 tomorrow does this cover the SAR. (sorry am thick when it comes to this stuff) and what is the DN?

 

Sorry to sound stupid!

[igurden]

Ahh is DN default Notice?

[summerbreeze]

You should get another copy of the alleged agreement if they respond to the CPR requests

 

Yes DN is default notice ..do you have it ?

[igurden]

I dont remember seeing one! i will have a look through all the correspondance.

[igurden]

This is the closest i seem to have to a default notice!

Default.pdf

[fedup74]

Did they not send a proper default notice after this, as it says we are willing to help you avoid a default notice (funny- MBNA are not usually willing to do anything to help!!) Are there any late fees charged or over limit fees that are included in the final balance that they are claiming for? I will post a letter up that explains why the prescribed terms must be within the agreement. These look like they have been added in as they are not aligned properly. You don't happen to have your original application do you?

[igurden]

No no default notice that i can find! i dont have the originals that i can find either i have asked for them under the CPR stuff but not sure if they will send anything different!

[fedup74]

It would seem that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1).

 

You have provided me a copy of an application form and I feel it is my duty to draw your attention to some serious flaws in your comments.

 

Firstly, to comply with section 61 of the consumer credit act 1974 which by the way refers to the signing of an agreement (Not an application), a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed

 

Now then, these regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

 

For your information in case you are unsure. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

(a)Number of repayments;

(b)Amount of repayments;

©Frequency and timing of repayments;

(d)Dates of repayments;

(e)The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

Now nowhere on the application form that you supplied is there any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect

 

Since the document you have supplied is a clear mailer application form, I cannot believe for one moment that these very important terms would be contained on the opposite side of the form, unless they are there for the postman to read while he delivers the mail. Therefore they must have been contained in a separate document, which is prohibited by the SI1983/1553, as there is no clear link to them within the signature document.

 

Therefore, you have failed to supply an enforceable document, which is correctly executed as to be so; it must conform to the Regs under s60 CCA1974

 

I am of the opinion that a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74, the consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed and contains all the prescribed terms. Now since this document does not contain all the prescribed terms s127 (3) CCA 1974 strictly prevents the court from enforcing this agreement.

 

If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading .

 

I respectfully request you review this matter in light of my comments above and I request that you supply me the required information or alternatively confirm the account is closed and the debt written off with a zero balance.

 

 

 

I sent this letter to the DCA that bought my unenforceable MBNA account!! The sections of the Consumer Credit Act that you would need to read up on are in here. Have you done anything about the claim yet- have you filed to say that you are defending or anything? There are some experts out there (defo not me!!) who will know more about the legal side than I do so you will get the help you need. They should produce the original in court but as you have probably gathered they don't play ball!! I have never seen terms and conditions like that on a cc application. Good luck:)

[summerbreeze]

That letter isnt a default notice

 

Part of your defence may be that you havnt received a DN and you can put them to strict proof that they sent one and that it was delivered to you.

 

You should request a copy of the DN in your CPR request ....they dont refer to a DN in the POC but you can request it under CPR 18

[robcag]

 

Any advise would be very muc appreciated.

 

Hi igurden

 

I think it might be worthwhile PM'ing CAG member chalkitup (link; http://www.consumeractiongroup.co.uk/forum/member.php?u=159779 )with a link to your thread and asking his opinion on your agreement as he is something of a CAG resident expert on MBNA agreements. I think he might be interested in viewing what you have posted and he might even want to add it to his collection.

 

There have been various MBNA agreements posted in the past on CAG which have given rise to suggestions of copy & paste jobs, but I must say that IMHO yours is one of the less obvious that I have seen (it could be just that MBNA are getting better at it though ).

 

If it is not copy & paste, then (again IMHO) apart from the fact that there ought to be a reference on the signature page to 'terms overleaf' or similar, then there is a possibility that it may well be enforceable. I also note there is a clause on the 2nd page which stipulates interest is payable before and after judgement.

 

Sorry to sound like a prophet of doom.

 

Good luck with this

Rob

[supasnooper]

May be worth comparing your CCA with the MBNA CCA library which CitizenB compiled -

 

http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

[igurden]

Thank for all your help so far.

 

CPR all gone off today.

 

See what happens.