filling in the court claim form -AAhgggg!

[captain crunk]

captain crunk here - I've put off a lot of debt by getting an informal arrangement advised by Payplan and some banks have been reasonable -eventually - about this ;but not mbna - i first told them in February 09 that i was having difficulties - they put me through to loans /remortgage dealers ('Central') more than once and made no comment about my income/exp just said my offers weren't good enough. (I have 3/4 letters to show this and have kept all their letters none of which respond to my questions/pleas)They tried to persuade me thatI could make them an offer but without selling the house I couldn't do that - this is 6800 - so I have a court claim form now from their solicitors and today is day 2 of fourteen to send it back - BUT is there no third option? (1 being pay up 2 being say what part you think you owe 3 being defend the whole) I want to say I don' t think I should owe what they say as they have, for 8 months, refused to freeze interest/negotiate payments etc and I don't think that's fair - even so CAB said I shouldn't put in my idea of what I owe them on the form (part admission) as there's nothing legal about it. In fact they and a local advisor said I should just admit the whole and let the court decide how much my instalments should be. I undertsand that bit but I'm really annoyed that mbna would get away with being such fookers...Can i not ask the court to judge what I owe? any help gratefully etc PS I made a CCA request during the time which took them two months to reply to so could I also argue that they added interest (in that period) unlawfully? Thanks for any help XXX- Crunk

[postggj]

hi captain crunk

 

this is not arrow global dca /marlin /mortimer clark solicitors is it

[postggj]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/177131-marlin-rankin-now-court.html

 

have to sign off in a mo

 

have a nose

[robcag]

Hi CC

 

captain crunk here - I've put off a lot of debt by getting an informal arrangement advised by Payplan and some banks have been reasonable -eventually - about this ;but not mbna - i first told them in February 09 that i was having difficulties - they put me through to loans /remortgage dealers ('Central') that's a bit naughty of them, irresponsibly encouraging you to try and borrow more money, against guidelines (OFT guidelines on debt collection I think) more than once and made no comment about my income/exp just said my offers weren't good enough. (I have 3/4 letters to show this and have kept all their letters none of which respond to my questions/pleas)They tried to persuade me thatI could make them an offer but without selling the house I couldn't do that - this is 6800 - so I have a court claim form now from their solicitors and today is day 2 of fourteen to send it back - BUT is there no third option? (1 being pay up 2 being say what part you think you owe 3 being defend the whole) I want to say I don' t think I should owe what they say as they have, for 8 months, refused to freeze interest/negotiate payments etc and I don't think that's fair - even so CAB said I shouldn't put in my idea of what I owe them on the form (part admission) as there's nothing legal about it. In fact they and a local advisor said I should just admit the whole and let the court decide how much my instalments should be. I've got a better idea. Why not start thinking along the lines of 'Defend ALL the claim'? It may sound a bit far fetched to you at the moment, as it did to me 2.5 years ago when I admitted a debt because I thought if they (HFC) say I owe it, then I must owe it. If you read around the forums (this one - 'Legal Issues' - is as good as any, and look at 'DCA Legal Successes') you will find things are not usually cut and dried for the Claimant. I undertsand that bit but I'm really annoyed that mbna would get away with being such fookers...Can i not ask the court to judge what I owe? any help gratefully etc PS I made a CCA request during the time which took them two months to reply to so could I also argue that they added interest (in that period) unlawfully? Thanks for any help XXX- Crunk

 

What you need to do is post up your Particulars of Claim (PoC) after blanking out your personal details so that others can see them in order to advise you further. If the claim form is from Northampton, check the form and it will tell you you have 5 days from the date of issue which count as service days, then 14 days to acknowledge, which then gives you a further 14 days to submit your defence. If from N'hampton you can acknowledge online, so don't panic and rush into it just yet, but don't miss the deadline!

 

You will probably be advised to submit a CPR request for further information to see what documents the Claimant is relying on.

 

Have you ever received a Default Notice from MBNA? If so, scan it and post it up as there is a good chance that this will be defective which will blow MBNAs case out of the water. MBNA are well known on here for producing defective DNs and thereby failing in their claims.

 

Have a look around the forums I have mentioned and you will find many threads which will help you understand the process ahead of you.

 

This forum;

Legal Issues - The Consumer Forums

and;

DCA Legal Successes - The Consumer Forums

 

Cheers

Rob

[captain crunk]

Dear postggj - thanks for the links - and robcag - I will get ther docs scanned - i think mbna have pertty much ignored every bit of the OFT stuff so far... but Reston's - i rang Mr R... yesterday, claim to be proper solicitors who are are only acting on instructions from mbna - I did make the mistake of putting 'account in dispute' at the top of my letters which they say is an error that provoked them to go for the claim strictly on the deadline... BUT yes please have a look and advise - do i need to do a CPR right away? best wishes CCrunk:)

[captain crunk]

mbna NOD on Flickr - Photo Sharing!

Court form 1 on Flickr - Photo Sharing!

Edited October 28, 2009 by captain crunk
first two were front and back of different docs

[captain crunk]

Hope you can see the above on flickr - can see bigger with 'all sizes' button. Also I will link to the 'original' cca (front and back) that shows out of place 'signature' and also the original docs that came with the card which may be relevant. My main problem with mbna is that I've been trying to do a deal with them since Feb. And that when i requested a copy of the cca (see link) they took over two months but were still adding on interest. So can I dispute the figure on those grounds? thwere's quite a lot of other stuff - like their refusal to respond in writin g to offers, their harassment at work and home, the letter telling me they could get a charging oredre agianst my house and the fact that they passed my stuff to Reston's before their own deadline had expired. Reston's gave me 2 days to respond to a letter before going ahead with this claim... it does make you wonder what is wrong with using an AK47 to sort out our parasitical middle men problem... CC

mbna cca front on Flickr - Photo Sharing!

mbna cca back 001 on Flickr - Photo Sharing!

mbna info with card front on Flickr - Photo Sharing!

Mbna info with card back on Flickr - Photo Sharing!

[robcag]

Hi CC

 

The DN is OK dates-wise, IF, (and ONLY if) it was posted 1st class. If posted 2nd class, it would fall short of the required 14 clear days which you must be given to rectify. I don't suppose you still have the envelope the DN arrived in do you?

 

As far as the wording goes, there may be something wrong with that, and there is also the issue of asking for the full balance to be repaid on the DN in accordance with Paragraph 8f of the agreement.

 

I've seen another CAGger with a similar dilemma about Para 8f in the last few days being told to pay the full balance on the DN, so if I come across the post again I'll post a link here.

 

Cheers

Rob

[captain crunk]

Rob - i didn't keep the envelope but I know I got it on Sep 9th as i kept a record of my phone call to mbna that evening - in that call they messed me around for 23 minutes and then terminated. I rang again on the 12th where they passed me to 'Central Mortgages' as they had before - I rang again and on the 22nd - that is 2 days before their deadline and they told me that the case had already been passed on to Reston's Solicitor's (can that be right) and gave me their phone number.. is this where a CPR comes in - please enlighten me - CC

[captain crunk]

PS - can anyone see my cca ('front' and 'back' above on flickr) and rate it's validity? thanks CC

[robcag]

Rob - i didn't keep the envelope but I know I got it on Sep 9th OK , sometimes 2nd class post has been known to arrive in 2 days , in fact just recently in my area some 2nd class letters seem to be doing just that despite the postal strikes, so you could put MBNA/Restons to strict proof that the DN was indeed sent 1st class. as i kept a record of my phone call to mbna that evening - in that call they messed me around for 23 minutes and then terminated. I rang again on the 12th where they passed me to 'Central Mortgages' as they had before - I rang again and on the 22nd - that is 2 days before their deadline and they told me that the case had already been passed on to Reston's Solicitor's (can that be right) and gave me their phone number.. is this where a CPR comes in - please enlighten me - CC

 

A CPR request is to obtain documents from the enemy in order to further your defence. It seems you already have the DN and a copy of your agreement, which unfortunately I haven't spotted anything amiss with, but I hope I'm wrong. Try and get someone a bit more 'expert' on here to have a look at the agreement and hopefully spot a weakness in it.

 

It's unusual for Restons not to add on their own (unlawful) 'collection charge' of approximately 16% to the claim (perhaps they're learning, or maybe they've had a slapped wrist once too often). I'm not sure they can add s.69 interest on to the claim, but it may be allowed for in the agreement, you'll need to check.

 

It looks like your options at the moment probably lie in challenging;

1. Whether or not the DN was sent 1st class;

 

2. The lawfulness of MBNA demanding the full balance of the debt rather than the arrears, despite para 8f

As I said above, if I find the other thread I was reading which mentioned 'Paragraph 8f' I'll post a link.

 

Cheers

Rob

[robcag]

Hi CC

 

Here's a link to the thread (the actual post) where I saw para 8f mentioned;

http://www.consumeractiongroup.co.uk/forum/legal-issues/186064-mbna-microfiche-anyone-help-4.html#post2530517

 

Hopefully you will find something useful there!

 

Cheers

Rob

[captain crunk]

Yes Rob I got that 8f type thing in mine but the defence in the link is from someone who looks like they paid the arrears and had an incpmlete DN. Do I need to start a new thread to get the cca looked at? - Thanks for all your help - CC

Edited October 29, 2009 by captain crunk
missed comment

[robcag]

Yes Rob I got that 8f type thing in mine but the defence in the link is from someone who looks like they paid the arrears and had an incpmlete DN. Do I need to start a new thread to get the cca looked at? - Thanks for all your help - CC

 

Hi CC

 

The reason I pointed you at that thread was that the lawfulness of MBNAs use of para 8f seemed to be being brought into question.

 

Read back a couple of posts, I think andyorch (post #66) explained that they can only demand the arrears.

 

In the post I linked to (#68 ) diddydicky is explaining that they still have to give you an opportunity to remedy the default, which they clearly did not as they demanded the full balance.

 

Perhaps you could PM either of the members mentioned if you want further comment on what they have said

 

Cheers

Rob

[captain crunk]

Thanks for your time Rob -

[diddydicky]

the creditor may not ask for moneys not yet due(S87) (the full balance) without first having served and effective DN giving you the opportunity to remedy any breach

 

since the DN itself demands the full balance it is IMO an unlawful rescission of the agreement.

 

some agreements may have a term which allows them to recall the full outstanding amount at will BUT it would probably be an unfair term and in any event does NOT apply to an account that is in arrears

 

since they always post second class its going to be a day short

 

the only occassion the amount could be justified is IF the amount of arrears is the outstanding balance - but you would have had to have been in arrears for a bloody long time for that to happen

[robcag]

Hi CC

 

To gain a bit more understanding of the DN issues, have a look at the thread linked to below, started today by diddydicky;

http://www.consumeractiongroup.co.uk/forum/legal-issues/229178-nationwide-next-step.html

 

There are others, but conveniently I just read that one.

 

Cheers

Rob

[captain crunk]

Thanks DD - the minimum payment they asked for on 24th August was £1356.38 so I take that as their idea of what the arrears should be. They did write to me on 7th August asking me to: 1. pay the oldest arrears of £158.71 or 2. said that I could have a payment programme of 'approximately £113.72 per month' or 3. pay £2,383.44 partial etc - now I've not been here before and although I've read a few threads on these court cases I'm still not clear what I should do right this minute! does this mean I say I'm going to defend the claim or do I raise an objection/whatever now? Reston's say I've got til the 12th to return the form - but if the date is wrong due to 2nd class... CC

[diddydicky]

A CPR request is to obtain documents from the enemy in order to further your defence. It seems you already have the DN and a copy of your agreement, which unfortunately I haven't spotted anything amiss with, but I hope I'm wrong. Try and get someone a bit more 'expert' on here to have a look at the agreement and hopefully spot a weakness in it.

 

It's unusual for Restons not to add on their own (unlawful) 'collection charge' of approximately 16% to the claim (perhaps they're learning, or maybe they've had a slapped wrist once too often). I'm not sure they can add s.69 interest on to the claim, but it may be allowed for in the agreement, you'll need to check.

 

It looks like your options at the moment probably lie in challenging;

1. Whether or not the DN was sent 1st class;

 

2. The lawfulness of MBNA demanding the full balance of the debt rather than the arrears, despite para 8f

As I said above, if I find the other thread I was reading which mentioned 'Paragraph 8f' I'll post a link.

 

Cheers

Rob

 

if you are speaking to them by phone (dumb) then be very CAREFUL that during a conversation you have not referred to contents of a letter which you claim not to have received calls are recorded

 

my advice -c cut the calls you WILL be tripped up

[diddydicky]

if the agreement is sound your only option i suspect is to apply for a strike out in your defence on the grounds that they have not complied with the CCA and due to the defective DN do not have a cause of action

 

(see the argument re DN (only) in my post as yours is almost identical

[captain crunk]

Points taken - will see yours - and not ring - I rang as I thought I could negotiate with the solicitors about repayments! I hope someone else will pick up the cca to check it out... is there a template for asking for a strike out - if it's not on your post...which is where I'll go now!

[captain crunk]

tansk agian - i see your info makes the DN the only chance unless soemone comes up with a note on the cca - what about the asking for interest (see robcag) - I couldn't find anyhting about that in the terms and c - and...how do ask for a 'strike out' ?

[diddydicky]

tansk agian - i see your info makes the DN the only chance unless soemone comes up with a note on the cca - what about the asking for interest (see robcag) - I couldn't find anyhting about that in the terms and c - and...how do ask for a 'strike out' ?

 

keep an eye on my thread as i am about to develop just a strike out application and you can copy it and amend to suit

[captain crunk]

Yes DD was looking at yout Nwide stuff last night - gives me hope - well done and good luck - I'll be doing something similar unless anyone suggests I'm barking up the wrong tree -CC

[captain crunk]

this was from diddydicky I'm just sticking it in here to maintain the thread as it's from th N'ationwide one...:

"if your case is proceeding you would normally make the strike out application with the AQ's if you are past this stage might as well defend,using the same arguments

 

i assume that the arrears did not come to the whole outstanding balance in which case the DN is fatally flawed since it seeks the benefits s of s87 before issuing an effective dn

 

how can you remedy the alleged default and carry on as though the default had not occurred if, by demanding the full balance in the DN they have effectively unlawfully rescinded the agreement

 

'i dont see any reason why your defence cannot include draft directions to strike out but at this stage you probably need some of the legal bods input

 

hit the triangle if you want the site team help -you only have 9 days left