H Cohen / Cl Finance MBNA - CCJ Set Aside help needed

[DonkeyB]

Hang on tho... didn't the DN ask for the whole amount and not just the arrears? Oh dear, what a mess...

[Guest dvdriley]

I'll cut it down to a single question, to establish whether there's any chance of unlawful rescission. In the claim form, what date did the PoC say the account was assigned from MBNA to CL? Was it 22 January or 18 February? You've blanked it out.

 

22 Jan = good news.

 

correct 22nd. The Poc says account was assigned to claiment.. CLF

 

The dn is for artreas and is dated 9th Jan.

 

so are you saying i am only responsable for arrears and if so, why, as the agreement is terminated. I assume that it was terminated when they issued the claim. An assignment, to my knowledge, is not a termination

[Guest dvdriley]

just wanted to check the letter i had sent mbna re recisssion, where would i find a template

[citizenB]

Woo hoo!

 

I've just fiddled in Photoshop - it's 22 January. Therefore the account was terminated by sale to CL before the DN could be remedied.

 

You are ONLY liable for the arrears, therefore. Need Vint on this one! However, you need to be, er, sure that you have written to MBNA and accepted the rescission. I'm absolutely sure you have a copy of that letter to MBNA somewhere...

 

What was the date on the termination notice they handed to you?

 

 

Good find there DonkeyB.

 

dvd, there isnt a template as such, but if you pop unlawful recission into the search engine above, I am sure I have seen someone produce a draft just recently. If I find it, I will pop a link here for you.

[Guest dvdriley]

confused.... the dn says on or after the date shown ie 26/1, your account will be closed and terminated.

 

on 22/1 account was assigned to CL. So was then when my account was terminated. no letter from mbna confirming termination

[citizenB]

confused.... the dn says on or after the date shown ie 26/1, your account will be closed and terminated.

 

on 22/1 account was assigned to CL. So was then when my account was terminated. no letter from mbna confirming termination

 

 

mbna, very rarely write confirming they have terminated. The first you would know of it would be if you had a SAR and discovered it discreetly hidden away in their computer logs.

 

Any reasonable person would read the Default Notice and understand the statement that "after a certain date the account will be closed and terminated" to be fact and that it had been.

[DonkeyB]

I'll try and raise Vint for an opinion - there's nobody like Vint for this topic...

[vint1954]

Well spotted DB.

 

The DN is indeed defective by quite a margin.

 

Issued on the 9th January 2009, a Friday, so deemed service would be 4 working days for second class, which they always use, taking it to the 15th for service. rectification date should be the 29th Jan 2009.

 

A little confused as to the comment regarding selling on to CL. This seems to be dated 18th Feb, after the rectification date.

 

Did they follow up the DN with a demand for the full ballance?

 

Vint.

[vint1954]

confused.... the dn says on or after the date shown ie 26/1, your account will be closed and terminated.

 

on 22/1 account was assigned to CL. So was then when my account was terminated. no letter from mbna confirming termination

Hi dvd,

 

Where do you get the date of the 22nd from?

[vint1954]

Woo hoo!

 

I've just fiddled in Photoshop - it's 22 January. Therefore the account was terminated by sale to CL before the DN could be remedied.

 

You are ONLY liable for the arrears, therefore. Need Vint on this one! However, you need to be, er, sure that you have written to MBNA and accepted the rescission. I'm absolutely sure you have a copy of that letter to MBNA somewhere...

 

What was the date on the termination notice they handed to you?

This is probably the letter that you are referring to DB:wink:

 

Dear xxxxxxxxxxxxxxxxx,

 

Re account no xxxxxxxxxxxxxx Unlawful Rescission.

 

I refer to your Default Notice dated xxxxxxxxxx, posted second class and received by me on xxxxxxxxxxx and your subsequent letter terminating the agreement by demanding the balance in full, dated xxxxxxxxxx, received xxxxxxxxx, I would add that these actions were taken by you, while the account was in serious dispute, owing to your failure to respond to my request under s78 of the CCA 1974.

 

The default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect. Your actions resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. These actions by you, have resulted in you unlawfully rescinding the alleged agreement.

 

I accept your unlawful rescission of the agreement and I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and I would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

Yours xxxxxx

[vint1954]

Good find there DonkeyB.

 

dvd, there isnt a template as such, but if you pop unlawful recission into the search engine above, I am sure I have seen someone produce a draft just recently. If I find it, I will pop a link here for you.

[vint1954]

Woo hoo!

 

I've just fiddled in Photoshop - it's 22 January. Therefore the account was terminated by sale to CL before the DN could be remedied.

 

You are ONLY liable for the arrears, therefore. Need Vint on this one! However, you need to be, er, sure that you have written to MBNA and accepted the rescission. I'm absolutely sure you have a copy of that letter to MBNA somewhere...

 

What was the date on the termination notice they handed to you?

The true arrears at the time of termination, less your claim for compensation for UR.

[vint1954]

You may want to play with this as part of your defence.

 

The Default Notice.

 

1. The Claimant issued a Default Notice to the Defendant on 9th January 2009, served under section s87(1) of the Consumer Credit Act 1974, posted second class and received by me on the 15th January 2009.

 

a) The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

b) It is submitted that the Claimant:

 

(i) Did not give sufficient time for the defendant to remedy the alleged breach or indeed seek legal advice, thus rendering the Default Notice unlawful.

 

(ii) Further sold the account to xxxxx prior to the date for rectification, stated in the Default Notice, again rendering the Default Notice unlawful under s87 & s88 of The Consumer Credit Act 1974.

 

(iii) Further unlawfully rescinded the agreement by requesting the balance of the account in full, following a non compliant Default Notice, an action which the defendant accepted in writing on the xxxxx 2009.

 

c) The Default notice issued by the Claimant is dated Monday 9th January 2009, posted second class. To allow service in line with the statutory requirements 4 working days ( excluding weekends ) were required to allow for 2nd Class postage. Thus the date to rectify the default, should be 14 clear days from service, namely 29th January 2009 and not the xxxxxxxxxx 2009, allowing only xxxxxxxclear days to rectify the default. This is in clear breach the regulations mentioned in 6(a) above.

 

d) The Claimant failed to ensure that an adequate and timely method of service of such a vital document was employed.

 

e) I would refer to the Interpretation Act 1978 Section 7, and Practice Direction from 16th April 1985, with regard to the service of documents by post. Service by second class post is deemed 4 working days ( excluding weekends ) following the date of posting.

 

f) The Claimant is additionally put to strict proof that any Default Notice was indeed posted on the 9th January 2009.

 

g) For the consequences of the failure of a default notice to be accurate I would point the Claimant to the judgement handed down at appeal by the High Court in the case of: (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) by Lord Justice Kenedy.

 

“Failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.”

[DonkeyB]

Vint, the PoC stated the date of sale as 22nd Jan. That's why I clarified it. Although the NoA is dated the 18th Feb, the PoC states the account was assigned on 22nd Jan. Therefore unlawful rescission?

[vint1954]

Vint, the PoC stated the date of sale as 22nd Jan. That's why I clarified it. Although the NoA is dated the 18th Feb, the PoC states the account was assigned on 22nd Jan. Therefore unlawful rescission?

Hi DB,

 

Yes, if that date is accurate, then very much so. I would imagine that they will claim it as a typo, saying they meant 22nd Feb, just after NOA. Safer to use 18th Feb NOA as point of UR and the letter would have been dated just after that.

 

Can use the 22nd Jan in POC as an additional argument.

[Guest dvdriley]

wow thanks guys.....i will post full defence on sunday

[citizenB]

Good find there DonkeyB.

 

dvd, there isnt a template as such, but if you pop unlawful recission into the search engine above, I am sure I have seen someone produce a draft just recently. If I find it, I will pop a link here for you.

 

This is probably the letter that you are referring to DB:wink:

 

Dear xxxxxxxxxxxxxxxxx,

 

Re account no xxxxxxxxxxxxxx Unlawful Rescission.

 

I refer to your Default Notice dated xxxxxxxxxx, posted second class and received by me on xxxxxxxxxxx and your subsequent letter terminating the agreement by demanding the balance in full, dated xxxxxxxxxx, received xxxxxxxxx, I would add that these actions were taken by you, while the account was in serious dispute, owing to your failure to respond to my request under s78 of the CCA 1974.

 

The default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect. Your actions resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. These actions by you, have resulted in you unlawfully rescinding the alleged agreement.

 

I accept your unlawful rescission of the agreement and I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and I would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

 

Yours xxxxxx

 

 

 

Thanks Vint,

 

BTW, have I succeeded in tipping your scales over the last week ? I dont get any box to say why I cant . Have reported this to admin team

[vint1954]

Thanks Vint,

 

BTW, have I succeeded in tipping your scales over the last week ? I dont get any box to say why I cant . Have reported this to admin team

Thanks CB

[Guest dvdriley]

so what date should my letter of acceptance of termination have been

[DonkeyB]

Once you realised it was terminated, ie. the very minute you received the NoA telling you that by an agreement of 22 Jan the account was sold... therefore, if their letter was dated 18 Feb, say a few days after that?

[Guest dvdriley]

even if they can prove DN was posted on 9th they are still a day short arent they

[citizenB]

even if they can prove DN was posted on 9th they are still a day short arent they

 

Yep:)

[Guest dvdriley]

Just a couple questions... the claimant has still not sent me a ciopy of the DN , the ignorant dj may ask me why i needed when i had a copy all along...my answer????

 

could you check my final def please. I dont think i have repeated anything

MBNA DEF CF.doc

[citizenB]

That seems to cover everything. Have sent you a pm.

[Guest dvdriley]

pm?????