MBNA Court Case Looming - Help needed!

[bertramr]

Hello all,

 

I've been lurking around this site getting a great deal of support for various financial things lately (very grateful to you all and a donation will be coming when funds allow) but now I have a bit of a problem with MBNA who are taking me to court.

 

I don't think I need to go into too much detail but the problem is this:

 

CCA requested under 78(1) back in May, finally arrived in September. In the meantime however MBNA still added interest and requested arrears despite being in default of the 12+2 day rule.

 

I've read many times here that while in default they cannot add interest or demand payment. I just need to clarify where it's written down in statute that that really is the case.

 

I've been relying on s78(6) 'while in default creditor can not enforce the agreement' but just had a look through the McGuffick case where the judge seemed to take a strange view of the word 'enforce' saying that all sorts of things like sending notices of default, actual default notice and finally court claim were not in themselves enforcement, but just 'preludes' to enforcement.

 

So what's the correct law, if any? Any help greatly appreciated as time is running out on this.

 

Many thanks.

[supasnooper]

I'd be looking at another way of defending the claim.

 

Have you sent a CCA request to MBNA ? If not do so ASAP (letter 9 here - The Consumer Forums - Debt collectors )

 

This will cost £1.00. Pay by postal order, send unsigned and use Recorded Delivery

 

Have you received a Default Notice from MBNA ?

 

If you haven't, get a Subject Access Request off to MBNA (letter 11)

 

The Consumer Forums - Debt collectors

 

This will cost £10.00. Pay by postal order, send unsigned and use Recorded Delivery

[bertramr]

Thanks very much for the reply.

 

Yes, requested the CCA back in May (following advice gained from this site), and it was sent in September. Unfortunately it looks pretty much compliant, I've checked the prescribed terms - even though they're on the back and not specifically signed, the front is, by me at least, and there's a bit of a squiggle from them, so maybe there's some leeway but I think I'm a bit stuck there.

 

Also received a default notice, checking the dates on that as it's quite tight for the 14 days + 2 and don't have the envelope to check if it was sent first or second class.

 

But, the charges and interest and arrears that continued to be applied during the period june to sept when MBNA were in default of the s78(1) request are included in the amounts on the default notice. I'm wondering if that invalidates the default notice?

 

Subject access request in progress, as are requests under CPR 31.14 and CPR 31.18 for copies of documents to those charming people at Optima (for those items mentioned in the POC and others that I need to look at for counter claim).

 

I should say that I've paid every month on this account since the 90's and just got into difficulties this year.

Edited November 25, 2009 by bertramr

[supasnooper]

I would put Optima MBNA to strict proof as to the service used for delivery of the Default Notice.........from my time on here, MBNA have always used UKMail Special service. ( 3 days service, thus deemed a 2nd class service).

 

When you get your "comms log", have a look at the date the Default Notice was sent, it may state the delivery service used.

[bertramr]

Thanks again, very useful and will check when everything arrives.

 

Just had another look at the McGuffick Case again and paragraph 12 is quite interesting. The judge says:

 

"In cases where the bank has confirmed that it is unable to enforce the agreement its standard practice is not to pursue legal action against the customer and to put a stop to all collection activity, so as not to give the false impression that it is entitled to a judgement."

 

OK, so this is RBS and not MBNA, but would seem to imply that any bank is 'giving the false impression that it is entitled to a judgement' if it continues collection activities when an agreement is unenforceable.

 

Any thoughts?

 

Oh and I've just had a look at the OFT Debt Collections Guidelines here.

 

Unfair Practices detailed in 2.6h, 2.8i and 2.8k. Lovely!

Edited November 26, 2009 by bertramr