CL finance Altered Application into Agreement

[m4ckk]

No mention of any credit limit.

BTW - I was asked about any other loans/CCards and she said 'I'll put a cross through because sometimes it can complicate things'

[Aristoc]

I don't think they need to specify a credit limit. They've indicated that they will determine the credit limit and how they will let you know, and I think that suffices as per the regulations for running account credit.

[vjohn82]

I don't think they need to specify a credit limit. They've indicated that they will determine the credit limit and how they will let you know, and I think that suffices as per the regulations for running account credit.

 

It does...

 

Ok... we need to know the following to make this all as concise as poss...

 

You need to post the following documents:

 

1) The Claim Form or Claim details

 

2) The default notice

 

Then we can look at a defence.

 

I don't think the "under the influence" part will go down well with the judge simply because you would have to not only prove you were drunk at the time but also the times you used the credit card to run up the debt.

[m4ckk]

 

 

 

 

Edited December 17, 2009 by m4ckk

[m4ckk]

Iv got to pick kids up... but I'll be back on about 1.30 Thanks Mack

[vjohn82]

Ok... we can argue they have no cause of action under s.196 of the Law of Property Act 1925.

 

Thoughts?

[DonkeyB]

Your name is still on some of those docs!

[DonkeyB]

Did that copy of the default notice come from Cohen? Looks like it did by the MBNA header and date.

 

Do you have a copy of any DN that was sent to you originally by MBNA? This could be important, especially if there are any differences between the two.

 

Also, do you have proof of posting of your CCA requests to Cohens? They state they have had no contact from you.

 

It's important to pick apart their witness statement where possible.

[m4ckk]

Yes.. it came from Cohen

 

I'll have a good look round for the original DN and post it if found - I cant remember seeing one!

 

I sent 2 CCA requests with no responses... then they appeared at court with a incomplete copy.

 

Thanks, Mack

[m4ckk]

Your name is still on some of those docs!

 

Thanks... altered it now.

[DonkeyB]

BINGO! You've got them - and by their own admission!

 

I refer to the documents supplied by Cohens in their witness statement.

 

The MBNA default notice says you must remedy the breach by 24 April 2009.

 

The Cohen witness statement says that the account was assigned to CL Finance on 23 April 2009 - a day before the deadline set to remedy the breach. This is unlawful rescission of the contract.

 

The DN also refers to paragraph 8. There is no paragraph 8 in the T&Cs supplied.

 

We need to get this into your defence/witness statement somehow.

 

They will be hard pushed to win this now, irrespective of the terms in the agreement. Hopefully someone better qualified will confirm this is a correct summary of their evidence.

Edited December 17, 2009 by DonkeyB

[m4ckk]

BINGO! You've got them - and by their own admission!

 

I refer to the documents supplied by Cohens in their witness statement.

 

The MBNA default notice says you must remedy the breach by 24 April 2009.

 

The Cohen witness statement says that the account was assigned to CL Finance on 23 April 2009 - a day before the deadline set to remedy the breach. This is unlawful rescission of the contract.

 

The DN also refers to paragraph 8. There is no paragraph 8 in the T&Cs supplied.

 

We need to get this into your defence/witness statement somehow.

 

They will be hard pushed to win this now, irrespective of the terms in the agreement. Hopefully someone better qualified will confirm this is a correct summary of their evidence.

 

Thanks for all this... I sometime's cant open letters:

 

The T&C's wernt all posted on here.. only the first two pages.. I'll post more later tonite.

I have to have the defence in by 4pm tomorrow. WoW:(

[m4ckk]

Found clause 8.. I think

 

Edited December 17, 2009 by m4ckk

[m4ckk]

Any help to fill in my defence letter... it has to be in by 4pm today:confused:

 

Thanks, Mack

[DonkeyB]

Mack, I'm with client at the moment, but I think your defence has to be based on the fact that, by their own admission, the account was unlawfully rescinded. I think therefore that all that is due is the actual arrears at the time of the DN.

 

Hopefully someone can drop in a do a decently formatted defence - I'm not so good at those, just good at finding the holes in the witness statements!

[m4ckk]

Thanks everyone... my printer is at the ready

[DonkeyB]

Bumping...

[vint1954]

MBNA always use UK Mail s post. this is second class, Service is therefore 4 days. That makes the service date 13th April 2009, causing the DN to fail on its own, let alone the fact that the account was sold early. The DN states that the default must be rectified before 24th. It must state a date by which it has to be rectified, so 3 points against the DN.

 

An application form may be able to become an executed agreement, if laid out in the prescribed form containing all of the prescribed terms within the signature document. This one seems to do so. However, it has to be capable of becoming a regulated agreement, that is signed by both parties, so it would follow that any application form seeking to become an executed agreement, must have a place for both parties to sign. THIS ONE DOES NOT.

[m4ckk]

Nice One Vin1.. its all adding up...

[DonkeyB]

Thanks vint - you are the oracle on this stuff! Thanks for clarifying this for Mack.

[DonkeyB]

Is it also the case that where the account is rescinded like this, only the arrears are payable?

[vint1954]

Is it also the case that where the account is rescinded like this, only the arrears are payable?

Yes, if the account is terminated in one of many forms, and the DN is non complient, they will only be entitled to the true amount of the arrears, excluding unlawful charges and interest.

 

If the DN was for say, £300, you may;) want to counter that lawful figure with unlawful charges ( recent and historic), Interest added to charges, your own time and expences for research and letter writing, advising this huge corporation with massive resources where they have broken the law and maybe, some unfair relationship issues under CPUTR, relating to extortionat interst hikes. Would a bank like to have to explain in a public court how they are charging 70 times the current BOE base rate?

 

It's a question of lining up the ducks in a row.

[littlebert8]

I'm in the same boat - default remedy by 23/3 but the account was sold on 20/3.

 

If in court this afternoon for an SJ hearing. I've not yet made anything of the unlawful rescission, because I've only just got a copy of the DN. Not had a termination notice either.

 

I think I may have enough to get the SJ application struck out anyway, but am considering if I should use unlawful rescission too. My only question is, don't you have to agree to the unlawful rescission - can I do this by stating as much in court today or do I have to write to the creditor?

 

The arrears are stated at approx £1300 - do I need to pay this immediately of claiming unlawful rescission?

 

It would be nice to think that unlawful rescission is fatal to the claimants case, but I just don't believe it can be that simple.

 

Don't want to hijack the thread, but any advice would be greatly appreciated as I'm in court at 2:30!!

[DonkeyB]

If there are any charges on the account, these can be set off against the arrears. Because it has been rescinded only the arrears are due and therefore the amount claimed on the PoC would be incorrect.

 

As for the SJ, the unlawful rescission shows there is clearly a case to answer - and that should be enough fort any judge to throw it out and award you costs!

 

(Don't forget to ask for costs!)

[littlebert8]

Great. Thank Donkey.

 

I'm thinking that I will try to get the claimants solicitor to swear the accuracy of the DN first, then hit them with the unlawful rescission - the are slippery and I wouldn't want them to come up with a 'better' DN