advice please

[rnk]

Hi,

 

I am new to this forum. Having read up a bit I need advice. My credit card with mbna goes back to 1993. I sent the usual CCA and reminder requests however I did not receive the original agreement. MBNA then sold it to CL Finance but I only received NOA from Lewis debt recovery acting for CL Finance.Without further ado Cl finance proceeded to issue the N1 claim. The allocation questionaire has been filled out etc and I need to go into courts on Monday the 12 for the 10 min hearing. Yesterday I received the witness stment from the solicitors for cl finance. They claim that NOA was posted to me, the copy is from Lewis debt recovery not mbna. And they further state that due to the old age of my account the original agreement cannot be located however due to the fact that I have been paying towards the account I therefore do not have a defence to the action.

 

In the AQ that I sent to the courts I specified the fact that mbna did not provide the agreement under the cca or cpr. I also did not receive any communication from cl finance. Only the N1 claim.

 

Is there anything further I need to point out to the judge?.What will happen on monday?.

 

I am a bit worried!!

[Blossomandebony]

Hi, rnk,

 

They have no chance of winning, basically, they're probably hoping you won't turn up (is it an allocation hearing?).

 

Just stick to the overriding point that they have no cca and are therefore not permitted, by House of Lords precedent, to enforce any agreement, (it's hard to enforce something they don't have!!!). The Wiulson vs First Trust case is so well known by now that the judge will have no option but to throw it out of court - I amm surprised they have taken it so far when they clearly acknowledge they have no cca.

 

If it does go to the full court hearing stage, I'd simply prepare yourself for the judge asking 'Do you owe this money?' I would answer that I have no idea what I owe or to whom because it's from such a long time ago and I require proof that there is any debt whatsoever, including the interest rate, terms etc, that I prwesumably signed up for . . . or words to that effect.

 

BAE

[rnk]

thanks for the quick response blossomandhoney.

 

It is an allocation hearing. I also forgot to add that cl finance are adding insult to injury.Today I received an invoice/ statement with an opening balance that they were assigned from mbna to which they have added the court costs, solicitor fees and the judgement costs to come up with a closing balance which they presume I am going to stump up.

 

Should I point out to the judge that since this account is in dispute they cannot add any more charges.

[dx100uk]

only the OC can add charges etc , no DCA can add anything to a debt.

 

you say you are/have been paying toward the debt?

has their been a six yrs break anywhere where you didn't pay?

 

dx

[rnk]

I paid towards the card each month always covering the minimum payment till 27/8/08. During this time mbna has charged me overlimit fees and late fees of £25.00.

 

In September 2008 I wrote to mbna saying I was experiencing financial difficulties and therefore could not afford to meet the miimum payment and said I could only pay £5.00.

 

Mbna wrote back with a telephone number to call and when I did it was for a loan which was supposed to consolidate all my credit cards etc. I said i wasnt interested.

 

After reading up on the credit card situation at that time I wrote to mbna end of Sep 2008 requesting my agreement under the cca act 1974.I received in return a copy of the current terms and conditions.

 

Then Aegis wrote on behalf of mbna requesting payment from me.Thereafter mbna wrote to say they have complied with the cca request.In Nov 2008 I sent a default notice for breach under the cca act to mbna.

 

May 2009 I sent a settelement offer for to mbna for a considerably less sum arriving at that figure by deducting all charges from 1994 and being 5% of the balance I think.

 

mbna then served me with a default notice in June 2009.

 

I did not receive a NOA from mbna but from Lewis debt recovery acting for cl finance who had been assigned the debt from mbna dated 2nd July 2009.

 

That was the only communication from cl finance and then on the 20th of July 2009 I reced the N1 claim form from the solicitors for cl finance.

 

CPR sent to solicitor 30th of July as I still had not received a copy of the original agreement. And the solicitor replied to say they are "not obliged" to provide that information.

 

Reminder cpr sent to solicitor and the ball is still rolling towards monday!!.

 

In my aq i have pointed out that despite requests under the cca mbna did not provide me with the agreement. mbna also did not inform me of the noa. But i did not state that I have received one from cl finance. As at that time I believed that the NOA needs to originate from the OC.

 

Would I stand a chance in court on monday although i believe it is an aq hearing.

 

In the witness stment by cl finance they clearly state "The defendant states in her defence that she requested a copy of the agreement, however due to the age of the agreement a copy is no longer held. I believe that the defendant does not have a defence to the action as, can be seen from the statements she did make payments towards the debt".

 

All advice greatly appreciated.

 

Thanks.

[Sunshine54]

good morning rnk

 

I suppose these letters actually confuse some people and they are mislead into thinking that they don't have a defence. (until I found this site I probably would have been one of those )

 

You seem to have everthing covered but there's still time for more experienced caggers to have a quick check for you

 

good luck tomorrow

[sillygirl1]

You can state this "As a person who ALWAYS pays bills I have been paying towards this in the belief that I actually had a legal obligation to do so, it now appears that the company cannot provide any proof of the alleged debt. I became aware of my rights to see the original documentation in XXX and this is when the dispute arose.£

 

Try that when asked why you were paying without proof. What a poor defence, really the courts should have people trained in reading claimants defences and throw them back when they are poorly particularlised.

[DonkeyB]

Can you give us more details of the default notice from MBNA? There's every chance it will be defective.

[supasnooper]

At the AQ hearing, do make sure you invite the Judge to ask the claimant for the original agreement to be made available at the full hearing under CPR Practice Direction 16.7.3

[letitbeme]

Also, what directions did you attach to the AQ?

[rnk]

Thanks guys,

 

I felt quite alone until now and not sure of what I was letting myself in for.

 

Ok as per the default notice served by mbna. No scanner so here goes:

 

"Served under sec 87(1) of the consumer credit act 1974.

 

Credit card xxx

We refer to the above agreement which you have entered into with us. You have repeatedly broken your agreement with us by failing to make your minimum payments. Paragraph 8f of your creidt agreement provides that, subject to sending you any notice required, you must immediately pay your whole balance if you repeatedly break this agreement and fail to sort the matter out. A stop has been placed on your card and a default has now been registered against this account at the credit ref agencies."

 

"On or after the date shown, your account will be closed and your account will be closed and your credit will be terminated. We may also take proceedings to recover the whole amount owed by you to us. Further statements willl not be issued"

 

My directions included in the aq were as follows:

 

"The claimant is basing the claim on a said regulated agreement between the original creditor, MBNA and the defendant. The defendant is unable to confirm this as the original creditor ignored CCa requests and SAR requests and failed to supply the data requested by the defendant as a statutory right.

 

The claimant states that the debt has been assigned to the claimant and NOA issued to the defendant on the 19thh of June 2009. The defendant respectfully submits that a NOA was not received from the original creditor, therefore the defendant requires proof that the claimant has any legal title to the debt.

 

The POA is mainly based on the grounds of a regulated agreement that the claimant claiims the defendant has not adhered to, yet the claimant has still not provided evidence on which the claimant has based the claim.

 

The claimat has failed to provide the said agreement and any terms and conditions that appliied to the account at the time when the account was opened under the CPR. the claimant further states that the claimant is not obliged to provide the requested information under the CPR.

 

A second request under the CPR for a copy of the agreement and t&c has been ignored by the claimant.

 

It is submitted that the defendant has not recd any NOA of the debt being assigned to a third party by the OC, although the claimant and associiates of the claimant have been issuing collection letters to the defendant. Therefore the defendant respectfully submits that the Court seek evidence of NOA.

 

The OC and the claimant have ignored requests under the CCA, SAR AND CPR to provide data which has been requested by the defendant over a considerable period of time. The data which the defendant has requested forms the essence of the claim, which is whether there is a regulated agreement between the OC MBNA and the defendant.

 

Therefore the defendant respectfully submits that the courts seek evidence of the original agreement and the t&c at the time when the account was opened as the POC is based on money being owed by the defendant under the said regulated agreement."

 

Phew!!.,

 

On going through the copies of statements sent by cl finance with the witness stment I never received the final statement from mbna which shows that they charged off the debt to cl finance. Do I need to point this out to the judge, as well as that cl finance never sent me any letters requesting payment simply their NOA ( is a NOA sent by a creditor but not the OC acceptable) dated 2/7/09 and then on the 20th of July they sent the N1 claim.

 

Thanks.

[rnk]

Quick update, Just got back from Courts. Their solicitor said I had not paid the £1.00 for information under the CPR. The judge disagreed and said this information was requested under the CPR and therefore I need not pay it. I also told the judge that Howard Cohen solicitors has said they were not obliged under the cpr to provide my agreement. The judge asked if that was so from the solicitor quite surprised. I said I have requested for the agreement which I have yet to receive. So he directed that by a date in November they will have to produce the agreement otherwise they are in quite a lot of difficulty!!!.

 

I dont think they can produce the agreement. so I hope that this can come to a sensible close.

 

What happens now?.

[supasnooper]

Dependent on what the Judge said and what is written in his orders, you could see the case being struck out.

 

You'll receive a copy of the Judge's order shortly.

[RobinWayRobinme]

Other area to look at is the NoA. Was it properly served before start of procedings? Law Property Act. Registered or Recorded post.

[AndyOrch]

"Their solicitor said I had not paid the £1.00 for information under the CPR. The judge disagreed and said this information was requested under the CPR and therefore I need not pay it.":D:D:D

 

Incredible!!!!!!! should be fun if it gets to trial

 

Regards

 

Andy

[DonkeyB]

Shows they don't know what they're on about. Good result, but a long way to go. I'd be amazed if they don't discontinue, though. They are on very thin ice.

[rnk]

I am getting a bit worried. Reced by post today, a copy of my application form and the NOA served by Lewis Debt recovery (not MBNA).

 

Firstly, they have only sent a copy of the signed application form which is one A4 size sheet with hand written info by myself dated 1993. Is this the credit agreement between myself and MBNA. No other info regarding the terms and conditions applicable at that time have been included. I went down this route before with them and all they produced was this application form and T&C applicable now, not in 1993. As i remember reading the £12.00 charge which only came into effect recently.

 

So do i wait for the hearing and say they havent produced the T&C applicable when I opened the account or would the judge say well you had your chance and you didnt ask for it at the hearing so tough luck.I have been asking for this info for over a year now.

 

Secondly the NOA is from the current creditor not the original creditor. Shoudldnt the NOA actually be from the Original creditor if so MBNA have failed to inform me of the debt being sold on. what would the judge say to this.

 

Please help!.

[RobinWayRobinme]

I am getting a bit worried. Reced by post today, a copy of my application form and the NOA served by Lewis Debt recovery (not MBNA).

Firstly, they have only sent a copy of the signed application form which is one A4 size sheet with hand written info by myself dated 1993. Is this the credit agreement between myself and MBNA. No other info regarding the terms and conditions applicable at that time have been included. I went down this route before with them and all they produced was this application form and T&C applicable now, not in 1993. As i remember reading the £12.00 charge which only came into effect recently.Application form is just that unless it contains all prescribed terms etc Post a copy after omitting all identifying info, but would appear they don't have an enforceable agreement

 

So do i wait for the hearing and say they havent produced the T&C applicable when I opened the account or would the judge say well you had your chance and you didnt ask for it at the hearing so tough luck.I have been asking for this info for over a year now.

 

Secondly the NOA is from the current creditor not the original creditor. Shoudldnt the NOA actually be from the Original creditor if so MBNA have failed to inform me of the debt being sold on. what would the judge say to this. NOA can be from current creditor. However, if you have just received a NOA and they have already commenced proceedings, they done so before they were lawfully allowed to do so (Law Property Act 1925). Basically, lawful assignment only occures when you have been properly served with NOA. Suggest posting NOA for opinions it being correct (again omit any identifying info). You still have a right to have sight of the actual legal assignment itself.

 

Please help!.

 

Robin

[robcag]

Hi rnk

 

Some important info you've omitted from your DN details, which may help you immensely (you can't beat a scanned image );

 

 

Ok as per the default notice served by mbna. No scanner so here goes:

 

"Served under sec 87(1) of the consumer credit act 1974.

What was the date of the DN ?

Credit card xxx

We refer to the above agreement which you have entered into with us. You have repeatedly broken your agreement with us by failing to make your minimum payments. Paragraph 8f of your creidt agreement provides that, subject to sending you any notice required, you must immediately pay your whole balance if you repeatedly break this agreement and fail to sort the matter out. A stop has been placed on your card and a default has now been registered against this account at the credit ref agencies."

 

"On or after the date shown, what was this date? (or did it say xx days from the date of this notice?) your account will be closed and your account will be closed and your credit will be terminated. We may also take proceedings to recover the whole amount owed by you to us. Further statements willl not be issued"

 

 

Also how much did you have to pay? i.e. the arrears, or the full balance?

 

Cheers

Rob

[rnk]

Hi Robcag,

 

The date on the default notice is the 8/6/09. And it reads "on or after the date shown, your account will be closed and your credit agreement will be terminated".There is no date specification here. However on the top it states

"This statutory notice is to tell you that in order to remedy this breach, you must pay the full amount of your outstanding balance which is xxx by 25/6/09."

 

Hope to get a scanner organised by tomorrow and shall upload the default notice and the copy of the appliication that they have sent in.

[rnk]

Hi Robin,

 

I did receive a NOA from Lewis debt recovery. This was dated 2nd of July.

and the only notification after that was when I received the claim from the courts dated 20th July. They didnt waste any time there.

[supasnooper]

Did you receive a letter from the court setting out what the Judge ordered at the previous hearing ?

[rnk]

Supasnooper,

 

I recd the following: "It is ordered that (1)The claimant shll provide a copy of the regulated consumer credit act agreement together with a notiice of the

purpoted assignment by 4pm on 5th Nov 2009".

 

Next hearing is on the 25th of Nov and 10 mins has been allowed for the directions hearing.

[RobinWayRobinme]

Supasnooper,

 

I recd the following: "It is ordered that (1)The claimant shll provide a copy of the regulated consumer credit act agreement together with a notiice of the

purpoted assignment by 4pm on 5th Nov 2009". Sounds like like good news to me. Wait and see if they comply with order. Also sounds like DJ have accepted that you have not been served with a NOA if they have ordered a copy be produced. The point being if court have already accepted that you have not been served with a NOA, IMO they cannot take any court action against you in their own name.

 

Next hearing is on the 25th of Nov and 10 mins has been allowed for the directions hearing.

Robin

[rnk]

Attached is the said credit agreement and NOA sent to me by Howard Cohen

solicitors as per the court order.

 

Is this it?, and what is my next step?.My next hearing is on the 25th of Nov for 10 mins.