MBNA court date.........

[large boy]

Hi there

 

I'm new to this site and have spent quite a few hours looking through some previous threads regarding MBNA.

 

I'm hoping someone can offer me some advice please!

 

I had a credit card with MBNA / Virgin. I was struggling with repayments so bought an info pack from Ebay that told me "Walk away from Debt".

 

I followed all the instructions and now have a Court case pending, it's just come through for early November.

 

Does anyone have any advice as to the best way to try and attack them please? I've been working on the theory that the total is unenforcable as I have been asking for proof that the debt exists.

 

I've asked for the true accounts proving the amount is a debt and a loss on their books, a true signed agreement by both parties and either an invoice or similar, not a statement.

 

Well, they've refused to supply any documents and now have a court date.

 

I have a number of queeries;

 

1 - What is the likely outcome at court?

2 - If I have no money, what will the court do?

3 - Can I loose my house, of which I only own 25%?

 

Any help would be hugely appreciated please!

[AndyOrch]

Hi LB and welcome to Cag

 

Firstly you say you have a court date what is this for Trial?

I trust you have submitted Defence and AQ have you got to disclosure stage yet?

Have they provided a copy of the CCA they wish to rely on?

 

Qs 123

 

1 hard to answer without more info

2 Order you to pay a £1 a month at most

3 You wont lose your house

 

If we can get this into some context now and will advise further.

 

Regards

 

Andy

[large boy]

Hi Andy

 

Thank you for such a prompt reply!

 

The court date is Monday 2nd Nov.

 

My defence that I submitted was;

 

I, *********, of *** Address ****** formally requested proof of debt as well as a true copy of the original Consumer Credit Agreement relating to this account

 

On 3rd Dec 2008, I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. The claimant failed to comply with my request, and as such the account entered default on 1st Jan 2009.

 

The document that they are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and should be signed by both the claimant and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, the claimant is also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As the claimant has Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

This legal action is both UNLAWFUL and VEXATIOUS.

 

Furthermore I Intend to counterclaim that any such action constitutes unlawful harassment.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* The claimant may not demand any payment on the account, nor am I obliged to offer any payment to you.

* The claimant may not add further interest or any charges to the account.

* The claimant may not pass the account to a third party.

* The claimant not register any information in respect of the account with any credit reference agency.

 

I request that this case be struck out with Immediate effect, as the claimant or their representatives have no chance of success.

 

Edited October 20, 2009 by large boy

[AndyOrch]

before i digest that LB if that is your real name you need to edit it out and any other personal

 

Regards

 

Andy

[large boy]

Cheers Andy!

 

I think I've amended it!

[AndyOrch]

Ok LB

 

None complience with your Sec 78 request is a complete defence to any litigation.

 

Now what satges are you up to AQ done I summise any directions you have made?

Any proposed Directions /application the Claimant has made?

Default Notice/termination Notice recieved? If so can you post up (less personal)

Any LBA from their Sols?

Can you type in the the Claimants P.O.C verbatum less any personal.

 

Regards

 

Andy

[large boy]

Hi Andy

 

You'll have to excuse my ignorance here as I am struggling to understand all this terminology!

 

Any directions I have made? I dont understand, sorry!

 

Any proposed Directions /application the Claimant has made? They asked me if I wanted to fill in all their forms and take a reduced amount but, I was advised not to inform them of my financial situation at this point, not sure if this was right?

 

Default Notice/termination Notice recieved? I received a default notice in February relating to £680 which was my late payment

 

Any LBA from their Sols? Sorry, I dont understand this either?

 

The Claimants P.O.C verbatum, on the County Court Claim form reads;

 

The Claimand claims payment of the overdue balance due from the defendant under a contract dated on or about 13/10/2005 in the sum of ***** inclusive of interest to the date of this summons at 8% per annum from 1/07/09 to 16/07/09

 

Particulars a/c no- *************

 

DATE ITEM VALUE

01/07/2009 Default Balance ******

Post Refd Cr NIL

 

16/07/09 Interest ****

TOTAL:- *******

 

Together with:-

Interest persuant to s69 County Courts Act 19 at the rate of ***** pence per day to the date of the Judgement or sooner payment.

[AndyOrch]

c

Hi Andy

 

You'll have to excuse my ignorance here as I am struggling to understand all this terminology!

 

Any directions I have made? I dont understand, sorry! When you completed your Aq (Allocation Questionnair did you request any Directions from the Court ie to disclose the agreement etc

 

Any proposed Directions /application the Claimant has made? Like wise for them in their AQ? They asked me if I wanted to fill in all their forms and take a reduced amount but, I was advised not to inform them of my financial situation at this point, not sure if this was right?

 

Default Notice/termination Notice recieved? I received a default notice in February relating to £680 which was my late payment Post up

 

Any LBA from their Sols? Sorry, I dont understand this either? letter before action allowing you 14 days to come to an agreement

 

The Claimants P.O.C verbatum, on the County Court Claim form reads;

 

The Claimand claims payment of the overdue balance due from the defendant under a contract dated on or about 13/10/2005 in the sum of ***** inclusive of interest to the date of this summons at 8% per annum from 1/07/09 to 16/07/09

 

Particulars a/c no- *************

 

DATE ITEM VALUE

01/07/2009 Default Balance ******

Post Refd Cr NIL

 

16/07/09 Interest ****

TOTAL:- *******

 

Together with:-

Interest persuant to s69 County Courts Act 19 at the rate of ***** pence per day to the date of the Judgement or sooner payment.

 

 

Andy

[large boy]

this was the info I put on my form;

 

1) I disputed the alleged outstanding debt.

2) Under the banking code, the claimant cannot legally pursue a debt whilst I dispute the account.

3) I requested a true copy of the credit agreement which you have failed to receive.

4) I was under the Impression that you were borrowing money, not bank credit, had I known in fact I was brrowing bank credit, I would not have entered into the agreement. I wanted the agreement to find any clauses to that effect.

5) As MBNA have failed to provide such agrrement, you feel that It is either fraudulent, or unenforcable under the CCA 1974.

The defaiult letter;

February 17,2009

DearMr

Account: .

IMPORTANT DEFAULT NOTIFICATION

 

YO'.l are in breach of the agreed Terms and Conditions and a decision has been made to place a restriction on your account. This means that your card(s) and credit card cheques cannot be used. If you have regular transactions such as Intemet payments, you should use an alternative method of payment.

As your account is £689.34 in arrears, failure to bring your account up to date will also result in the eventual termination of the agreement and the registration ofa Default at the Credit Reference Agencies. A Defa ult will register on your credit file for the next six years and any potential employer, car dealership or creditor who utilise the services of a credit bureau \\111 be able to see the details of this information.

IT'S NOT TOO LATE TO PREVENT THE TERMINATION OF YOUR AGREEMENT.

Call us now to make a debit card payment. Alternatively, contact us to ensure we can provide you v.1th information to help you deal with your finances, including actions you need to take to stop the Default being registered against you. We also have leaflets available to you that detail your options.

furthermore, the restriction that has been placed on your account does not have to be permanent. There are steps that you can take to help the consideration of reinstating your card facility:

A payment to clear your oUf!.,1anding arrears.

Regular monthly payments by your due date, and reducing your halance to release available credit.

Please note if a restriction is in place when your balance is cleared in full. the account wi)] register as closed with the Credit reference agencies

the 14 day letter;

 

Dear Sir

URGENT -For IMMEDIATE action

MBNA Europe Bank Ltd v. Yoursl'lf, ref. =

Overdue Credit Card Balance: £

We are instructed by MBl\/\ EuroDP Rmk Ltd to claim immediate payment from you of the balance outstanding on your Overdue Credit Card. £: Ius capitalised interest as appropriate.

You JIIl1~t now pay £ (Q this office by Wt:dnesday. July 15.2009 failing which a ~urnJllons will bt: issut:d for the full balance PLLJ~ any continuing imerest, fees and costs. A Judgmem may be entered against you which will be registered. Your credit record may be affected making it difficult for you to obtain credit in future.

Our Client may be prepared to accept payment by instalments. If you wish them to consider this option please complete the enclosed questionnaire and return it to this officc within 6 days Unless we hear from you we may decide to telephone you on any number available to us. Alternatively please telephone us on the above DIRECT line within 14 days. A I j future correspondence/payments should be sent to this office clearly marked with your name and account number. Receipts will not be given unless specifically requested

Finally. our Client has asked us to draw to your attention an opportunity for you to clear the account at a specially discounted settlement figure which could represent a substantial saving for yOll. Tfyou are interested hould call the direct line listed at the head of this letter

 

 

[B3rty]

If this is Northampton then surely its just a holding defence and wait for the transfer to your local court who will issue the AQ?

 

The process is M.C.O.L ( Northampton) which normally gives judgement by defaults as most don't defend, however if you do its transferred to your local court which is where all the fun and games will start

[Old Cogger]

Bump

[large boy]

Yes, the court was Northampton but as I defended, it has ben transferred to my local court!

[Docman]

Hi LB

 

It looks like you have submitted a defence to the claim which is good. Snag is that it doesn't directly deal with the points raised in the Particulars of Claim [POC] stated on the claim form [N1]. Instead, you have put forward some points that are valid but in a manner that looks like it has been thrown together. I know that is not what you intended but the reality is that the District Judge might possibly ignore what you have written (even though it is all true). Also you have to assume that MBNA will turn up at Court with a barrister or solicitor who will know all the right words and butter up the judge. Human nature being what it is, the judge then ends up ruling against you. You have got to be prepared and know what you are after.

 

Now, it looks like the claim was issued in July and you returned the forms to defend the claim. The next stage is that the court sends your defence to MBNA and asks if they wish to proceed. If they do, the court asks both sides to fill in an Allocation Questionnaire [AQ] that you have to return. At this point, MBNA have to pay a fee. You do not.

 

When you send your AQ back, you can attach draft 'Directions'. This is an Order from the Court directing the claimant and defendant to take certain actions. Quite often, this is where you ask the court to order MBNA to produce the documents to prove their claim.

 

Sometimes, the court decides to hold a 'case management conference' to decide which 'Directions' it will issue and what those Directions should contain. In some cases, claimants try to side step these stages by applying for 'Summary Judgement', i.e. a quick decision, especially when they don't have the correct documentation. They do so in the hope of getting a judge who just wants rid of the case and/or doesn't like people defending themselves [LiPs or Litigants in Person].

 

So, the first question is where are you now? What is the court date on 2 November for? Is it to hear a Summary Judgment application, or a case management conference or even the final 'trial'?

[large boy]

Hi Docman

 

Well, I guess all that makes sense, even though I must admit to finding the whole thing a tad daunting!

 

The documentation I have received is a "Notice of Hearing" and that I should attend. 30 minutes has been allowed for the hearing

[Docman]

hanks LB. But what kind of 'Hearing'?

[large boy]

Hi Docman

 

I'm not sure what type of hearing.

 

The letter states;

 

Notice of Hearing In the Staines County Court

 

Take notice that the hearing will take place on

2nd November 2009 at 12.15pm

at Staines County Court (Address)

When I should attend

30 minutes has been allowed for the hearing

Please note; This case may be released to another Judge, possibly at a different court

 

Thats all it says so, I'm assuming it's the final trial?

[Docman]

Hi Docman

 

I'm not sure what type of hearing.

 

The letter states;

 

Notice of Hearing In the Staines County Court

 

Take notice that the hearing will take place on

2nd November 2009 at 12.15pm

at Staines County Court (Address)

When I should attend

30 minutes has been allowed for the hearing

Please note; This case may be released to another Judge, possibly at a different court

 

Thats all it says so, I'm assuming it's the final trial?

 

 

I suggest you phone the court and find out what type of hearing, so that you are properly prepared. Have you had ANY documents from MBNA or their solicitors since the claim form from Northampton?

[large boy]

No correspondance from anyone since the court date came through

[large boy]

Hi, I've just spoken to the court and its an Allegation and Directions hearing? Is that right?

[AndyOrch]

Application and Directions hearing looks like they are going for Summary Judgement then.You need to request a copy of their AQ and application along with any Witness Statement in support of.I summise you didnt make any directions within your AQ

 

 

Andy

[large boy]

OK, completely lost now!

 

Is there a standard letter to ask for their aq?

[AndyOrch]

No just either ring the CC or the Claimants Solictors and tell them you want a copy of the AQ App Notice and WS PDQ.The application and WS should have been sent from the County Court in any case

 

Regards

 

Andy

[large boy]

OK thank you, I will call them first thing in the morning!

[large boy]

Bump

[large boy]

I am hoping, fingers crossed, th have their Allocation Questionaire and witnes statement today if the postal strike hasnt delayed it all even further!