MBNA summons received. Help please

[anxious1234]

Hi. I have today received a summons from MBNA for nearly £20,000. I did upload the agreement on an earlier thread some months ago. At that time, one person said it looked unenforceable on the grounds that my credit limit was £18,000 but the only interest rates shown on the agreement is for 4/7/10k thereby not showing the rate for £18,000.

CAN I ASK IF SOME OF YOU GOOD PEOPLE CAN RE CHECK THE AGREEMENT AND HOPEFULLY FIND SOME MORE FLAWS. It is clearly headed as an application form. So is it an application or agreement?

I have re attached the agreement.

I am now at my wits end and do not know where to go from here.

MBNA did at one time offer a settlement of £7500 and then £6500 which I did not accept but now wish I had.

I have 14 days to put a defence in or admit liability etc. Do I dispute it and say I will defend and if so what would my defence be?

Do I now offer the £6500??

 

Hopefully, someone may be able to help me and then just maybe I will get to sleep.

 

Cheers

agreement1.pdf

agreement2 .pdf

Edited September 7, 2009 by anxious1234

[foolishgirl]

IMO the agreement is probably enforceable provided Page 2 is the actual reverse of Page 1 i.e.within the 4 corners of the agreement. My only query would be with the prescribed terms which come after the signature box & it could be argued should come before your sig. The interest terms in the T&Cs are only an eg.

 

Your most likely defence I think would be to try & show they didn't default you correctly eg. if you didn't receive a default notice, if they didn't give you sufficient time to rectify the default as specified in regs, if the amount of the default was incorrect.

 

Have you ever had any unlawful charges applied to this account eg. overlimit, late payment fees etc? If so, have you ever reclaimed them & were they applied before any DN was issued that would make the DN inaccurate?

Edited September 7, 2009 by foolishgirl
additions

[anxious1234]

Hi. Thanks for reply. Have attached default notice.

 

You do not think then that it could be unenforceable on the grounds that the interest rate is not shown for my credit limit of £18,000. Surely this is one of the prescibed terms?

default notice.pdf

[foolishgirl]

I think your main basis for contesting the enforcability would be re. the order of the prescribed terms. They are specifically laid out in the 1983 regs & have to be followed to be compliant with S60 of the CCA1974. Links to both here:

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-

 

A DJ should therefore not permit this form to stand as an agreement but you would have to argue the case very carefully & read up well on the legislation to convince him I suspect.

 

The DN I think is qustionable on the amount of clear days they have given you for remedy. Did you by any chance keep the envelope? They have to give you 2 clear working days + 14 for 1st class, 4 days for 2nd & just because it was dated 28May doesn't mean to say that it ws posted that day. I would therefore be demanding proof of posting from them.

 

There is also the issue of an inaccurate amount on the DN. Have you had any charges applied to this account & not reclaimed them? That should have been reflected in the amount of arrears on the DN & would make it defective. A defective DN followed by termination means that they can only ever claim the amount of arrears at the date of the DN from you, never the full balance. BTW a defective DN cannot be rectified once the account has been terminated so they can't think they'll make it all OK by issuing another one. Game is over.

[anxious1234]

Hi. Thanks for reply. Regarding the order of the prescribed terms. I have looked through the link that you sent me but 50 pages of them is alot to take in and after trying I am no better off. Any chance you could help out here and explain what should be in what order.

 

Cheers

[42man]

You might find this of interest too - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/120057-cabot-test-case-2.html#post2384353

[boingy]

It looks like an unexecuted agreement to me. Does S62(2) & S62(3) of the CCA help in your situation?

[42man]

OK...you've got to acknowledge receipt of the claim within 14 days of the date on the claim form (you then state if you wish to defend all or part or admit all....it is usual to send out a CPR depending on the particulars of the claim in the first instance....and with the information in the link I posted above it might be interesting to see if you might be able to get them to reveal how they securitise their debt !! - can you post up the particulars of the claim ?

[anxious1234]

Hi. Attached particulats of claim.

scan0001.pdf

[42man]

I think it might be a good idea to send off a CPR 18 to them (recorded delivery)

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/191596-mbna-i-need-help-4.html

 

I'm following the securitisation as a possible as in post 6 above...

[anxious1234]

Hi. Where to I find the CPR 18 template please and what further information would I be asking for?

 

Thanks

[foolishgirl]

Freely & fearlessly copied from a 42man's post - thanks & acknowledgement to him:

 

 

Send them this letter by RECORDED / GUARANTEED delivery....and do not hand sign it...

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION UNDER CPR 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require 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 my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

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 my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

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

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

[anxious1234]

Thanks. Will send today

[foolishgirl]

From first glance at the POC anxious, it's rubbish

 

1. They have not identified your account

 

2. Looks as though the default sum is wrong - you can't claim a full balance (which I assume this is) at default stage, only the arrears. The balance only becomes due on termination. Have they sent you a letter of termination? If not, make sure you ask for a copy in the above CPR request.

 

3. They cannot claim 8% stat. interest on regulated credit agreement.

 

Make sure you send off your AoS (with notice that you intend to defend fully) before the 14 day limit - I make it 21 September but to be sure, send if off to reach court by 18th. Deliver by hand & get a receipt or post Spec. Del (not Rec). Your defence is then due in after a further 14 days. That leaves you time for them to fulfil (or not!) the CPR18 request & compile a defence - with cag help if you need it

 

Try & get that CPR request in the post today - Rec Del is a must!

[anxious1234]

Hi. Thanks for input.

I know I should know but what is POC?

 

Have asked for letter of termination in the CPR 18 request and has just been posted.

 

Will send the Aos as you suggest and wait for the CPR 18

 

Thanks

[foolishgirl]

I know I should know but what is POC?

 

Particulars of Claim - the summons you received from the court notifying you

of legal action

 

 

FG

[anxious1234]

Okay. Now I know.

 

You say that they have not identified your account

 

They have typed in the account number but I have tipp-exed it out. Is this what you mean thats missing?

[foolishgirl]

You say that they have not identified your account

 

They have typed in the account number but I have tipp-exed it out. Is this what you mean thats missing?

 

That's Ok then - thought it was missing. Doesn't make the rest Ok though does it?!

[anxious1234]

Received a reply today in respect of the CPR 18 request which is attached.

Any suggestions on whats next?

scan0001.pdf

Edited September 18, 2009 by anxious1234

[foolishgirl]

Typical Restons reply, I think they must churn them out by the thousand.

 

Anyway it makes your defence easy to compile:

 

1. They have admitted they have sent a recreated DN - they would have to produce an original + proof of posting in court for it to be considered served & comply with the legal requirements re. dating etc.

 

2. They have admitted the debt was not assigned. Was the POC issued in MBNA's name with Restons as sols?

 

3. They are refusing to issue you with statements so you can calculate unlawful charges as a counterclaim.

 

When does your defence have to be in?

[anxious1234]

Hi. Claim is dated 4th September. I believe the day of service is taken as 5 days after this date making it the 9th September. Thereforefore, I make it the 6th October it has to be in by.

POC in MBNA name with restons as solictors

[foolishgirl]

That's OK - loads of time. POC correct.

 

Shout if you need help with the defence?

[anxious1234]

Will do