Link have a ccj and CO MBNA Card which I am keen to have set aside or appealed

[atom02]

Please can anyone help me with this agreement - is it enforeceable? Assuming it is legitimate and an original copy exists, should the signature & terms not be on the same page in order for it to be enforceable?

 

It certainly looks as if they are from two separate documents as there's nothing linking 1 side to the other, other than one is on the reverse side of the paper.

 

Also, not really legible - I have enlarged page 1 significantly.

 

Any help, greatly appreciated

 

atom

Edited February 1, 2010 by atom02
4got attachment - lol!!!

[supasnooper]

If a Judge can make out the prescribed terms then he would regard the Agreement as enforceable although it would be for MBNA to prove that the documents are related.

 

If however, the judge is not able to distinguish the prescribed terms then the Agrement would be unenforceable.

 

Have a look at these links which may help you understand the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

 

 

Consumer Credit Agreements

 

Also have a look at this link as well - http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

Edited February 4, 2010 by supasnooper
spelling

[Dr Brickwerx]

On the front where your attention to section 11 is drawn specifically, does the subjet matter (which I think is use of personal information) match that actually described in section 11 of the T&C, I had a sig form very similar and section 11 of the T&C sent with it referred to something else entirely, indicating they were most likely not the same document, just something cobbled together to look like it.

[atom02]

Thank you both for your quick responses.

 

Dr B, specifically to your point, they have not even provided the rest of the t's&c's so I can only guess they haven't yet figured out what else to bolt onto the alleged agreement.

[atom02]

I actually don't know for certain where to go from here. Both the DCA & OC have produced the same copy. The DCA have a ccj and CO which I am keen to have set aside or appealed (still figuring out which should be the best option). However, before I set out, I want to be certain the agreement cannot be enforced in any case.

 

Would you think it best to ask to inspect the original document? Any idea how I can request this?

[supasnooper]

Have a look here for info on requesting the Original Document - http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[atom02]

Thanks, supasnooper - I'll have a good read and take it from there

[atom02]

Hi once again, supa, I have taken a quick glance through PT's section on cpr31:16 and will keep on reading (a good 55+ pages) but I have a quick question. PT's thread focuses on instances where the DCA/OC fail to produce a signed agreement.

 

In my case, I have something with the semblance of my signature on it being purported to be the cca. My immediate reaction is that the text of PT's draft letters for cpr 31:16 disclosure will not exactly apply. I can probably amend the text to suit my circumstances but then wonder whether this would be sufficient - will the fact that a purported signed document has already been sent to me water down the necessity of or justification for my disclosure request? i.e. what if they say 'we have already given it to you'?

Edited February 3, 2010 by atom02

[supasnooper]

It's up to you if you want to find out if MBNA have the original agreement in its original format.

 

However, if MBNA decide to pursue the debt using Court action, would you defend against the documentation already supplied by MBNA and then find out in Court they can pull the orginal out in front of a Judge ...... I know what my course of action would be.

[atom02]

Sorry to be a pain but unfortunately, I am well past that decision. The account was sold to DCA who obtained a default judgment despite offers for monthly payments and then proceeded to obtain a CO. So I did not have the luxury of defending against anything. Not knowing any better at the time, I simply obtained a variation and currently pay that. However, I have unearthed a number of irregularities in the way the judgment was entered and if the agreement is unenforceable anyway, then it will be worth trying to appeal to overturn the original judgment - the one thing I need to do this is the original agreement. I am keen to go fighting but should line up all my ducks before launching in - or no?

 

So, I guess my question is whether the cpr 31:16 process can also be applied where a signed document has already been produced - you will observe from PT's thread that all the letters/templates refer to not having received an agreement at all. Do you think it does?

[HP Mum]

Out of curiousity - when was your card taken out with mbna ?

 

Did you request and get all info from mbna ?

 

And check your Default Notice from mbna and the dates when it was sold to the dca..

I have my own situation where mbna sold the debt onto a dca before the date they had told me to pay arrears by, which they are not allowed to do...

All these details will help your case

[atom02]

Hi HPM,

 

Thanks for the pointers - the card was taken out in 2003.

 

I got a response to my SAR from mbna and there is no record of a DN ever being served/sent. Incidentally, the date of sale they have noted to the DCA is different from that given by the DCA in their own response to the SAR. No NOA has also been provided by either party.

 

Aside from these issues, the DCA asked me to return the paperwork to them, not the courts (a clear attempt to pervert the cause of justice!) which I did, with an I&E etc, only for them to obtain a default judgment (all while I was out of the country). I have seen a similar case here against HFC and the cagger successfully appealed the judgment because it should not have been entered in default rather it should have been an admission judgment.

 

So in all, I have found quite a few irregularities which I hope should help me appeal/set aside the case. I am just keen to establish that they will have no come backs as far as the supposed agreement is concerned otherwise. If they do, I may not be able to successfully advance any of the arguements I could potentially use for a set aside because the Judge will see no reasonable prospects of success. I guess am trying to do the sensible thing of insuring my case before I launch into an appeal/set aside.

Edited February 5, 2010 by atom02

[atom02]

ok, been doing some thinking and looking through all the paper work I got from SAR to DCA & OC and think cpr 31:16 is definitely the way forward. I don't think I have much to lose at this point

[supasnooper]

Have you checked the Default Notice as advised earlier ?

 

If you have it, then please post up minus personal details but leave all the dates in

[atom02]

Hi supasnooper, sorry - I thought I answered the question in post #12...there was no DN from the OC. On looking through the correspondence, I have 2 DN/s from the DCA (will post later when I am back to my desk/scanner).

 

On recollection, I think both will be defective because the 1st was after it was passed to DCA, dated the 1st of the month and asked for remedy by the 15th. The 2nd was dated after default judgment was obtained (not sure what the intended point of this was other than to try to retro-engineer their paper work).

 

Will definitely post later tonight.

 

thanks for looking in.

 

I also looked at the POC, it was filed with DCA named as claimant, the alleged agreement date was wrong assuming the one on the supposed agreement they have produced is to be taken seriously. It seems the more you look the more shoddy the entire thing seems.

 

Hi supasnooper, here are the x2 DN I received. The one dated september 2008 was sent about 3 months after default judgment was obtained. I think in any case, they are both defective as neither gives sufficient time to remedy.

 

Not sure what other points I ought to be looking for on these...

[supasnooper]

As Link are acting on behalf of MBNA and they are not the Absolute Assignees of the account they are not allowed to produce such notices.

 

Further, both default Notices are defective.

 

Have a read of the link below as to why - B_R_W's post on DN's

[atom02]

Thanks a great deal. Now I have to figure out who to CPR 31:16 (DCA, OC or both!) and how to preceed with my appeal/set aside arguments. I believe I have enough to quash any counter arguments about prospect of success. I very much wish I found this site sooner.

 

Although the alleged agreement is pretty much illegible, it would seem I have breached clause 1b which as I can just about make out, states: 'we will choose your first statement date...' I am baffled!!!!!

[supasnooper]

You'd send the CPR31.16 to MBNA as they are still holding the account.

[atom02]

Thanks, supa. Here is my draft request which I will tidy up & pop in the post (under a cover letter) asap. Is there anything else you think I should add?

 

--------------------------------------------------------

xx xx

 

oh, I can't believe how your point in post #9 could have gone over my head - i guess the proverbial 'too deep in the woods, can't see the trees' syndrome. What you are saying that post is that even if I seccessfully appeal the existing judgment, the OC could theoretically take fresh action so I should cpr the OC in order to be able to defend that or at least know where I would stand?!

Edited February 10, 2010 by atom02
Draft removed

[bazaar]

Yep I think that was Supersnoopers' line of thinking, best to put them on notice you know what youre gonna ask for in court and anything less wont cut the mustard;)

[RobinWayRobinme]

Just read through your thread and noticed 2 things. First, you said that you offerred monthly repayments and second, you say they got judgement in default.

 

When you received the claim, did you respond to the claim ie was this by way of an admission and a request for time to pay and offerring payments?

R

[djweeble]

RWR,

 

atom02 states in post 12 . . .

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2752110.html

 

. . . that the judgement was obtained while he/she was out of the country, this is exactly what they did to me, knowing full well that I was unable to defend ( I had told them on the phone that I was working abroad) as I had no idea it was happening. They then rammed the CO through the court within 2 weeks, I was only aware of this the day before it was heard, and had no chance or time to prepare a defence.

 

I too want to fight them, but it's made much more difficult for me because I no longer live in the UK, and have been led to believe that it might be an impossible task to beat them now given the time scale (about 4 years), I shall be watching this thread with very intense interest.

 

BTW, MBNA have stalled me all along the way, and have never produced a copy of my original agreement, only a particularly bad copy of a card application form.

Edited February 9, 2010 by djweeble
Speeling chuck !

[atom02]

Hi RWR,

 

Thanks for looking in. Basically, it is 'yes' to all the questions - unbelievably and my ignorance of my rights got the better of me

 

Essentially, this is the sequence of events:

 

1) Going through a rough patch and mbna offered a f&f but i couldn't raise the funds to pay it

2) About 4 months later, had some money, called them and they basically said 'call link'

3) I did call link who rejected any offers and instead asked me to sign away my house by way of a consent form. Of course, I refused but asked for their bank details so that I could make payments - they refused to give it to me.

4) I contacted CCCS and ultimately then fell into the clutches of a DMC who wanted me to pay them a fee to manage contact with all my creditors, only their fee was higher than any of the monthly payments they advised I make to each creditor. This didn't seem right so I fired them. But not before they advised me to sign the consent if I wanted to and also return court papers to my creditors with the I&E!!

5) I didn't heed the advise to consent to a CO, instead I wrote with I&E enclosed, then made covert calls to link, refusing to confirm my any of my details (cos as soon as I did, they refused to give bank details!!) until an agent finally gave me their bank details. So I sent them my I&E and started to make monthly payments.

6) About a year later, a few days b4 I was to leave the country, I received a POC. Frankly, I did not even read it let alone scrutinise it. I simply updated the same I&E and sent it along with the N9A (I think) to link (as directed in the POC). There was no time to seek any advise either.

7) About 2 months later, a default judgment arrived in my UK mail, with order to pay over 20k.

8. I simply contacted the court (at great expense) but of course, I was out of time because of the length of time it took for the mail to arrive. So I paid to have the order varied. In the mean time, link apparently tells the court they made a mistake so I get the order varied, and then a forthwith order followed and then another variation, this time, for a higher amount than the original order which I could clearly not pay. This was all just a mess.

9) Last year, they applied for a CO which was granted and made final (I was at the hearing) despite the fact that I have not under-paid any of the previous instalment orders or missed a single payment.

 

This is the saga in a nutshell. I should say my complete ignorance about any rights or protections I had basically led me down this path - I hope not irretrievably.

 

atom

[bazaar]

RWR,

 

atom02 states in post 12 . . .

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2752110.html

 

. . . that the judgement was obtained while he/she was out of the country, this is exactly what they did to me, knowing full well that I was unable to defend ( I had told them on the phone that I was working abroad) as I had no idea it was happening. They then rammed the CO through the court within 2 weeks, I was only aware of this the day before it was heard, and had no chance or time to prepare a defence.

 

I too want to fight them, but it's made much more difficult for me because I no longer live in the UK, and have been led to believe that it might be an impossible task to beat them now given the time scale (about 4 years), I shall be watching this thread with very intense interest.

 

BTW, MBNA have stalled me all along the way, and have never produced a copy of my original agreement, only a particularly bad copy of a card application form.

 

DJWEEBLE,

If youre out of the country and they knew it, why worry? If you ever return, then you can apply for set aside on those grounds, even better if you have proof you informed them as well. If youre not returning, dont lose sleep over it

[bazaar]

ATOM, advice to DJ applies to you as well,.

The best way to fight these unreasonable cretins, is to stop all correspondance now. Dont worry about any orders etc. until you are back living in the country, youve tried to resolve this amicably, but you've now seen how these bottom feeders act towards everyone, youre not the only one.

If you visit uk, they aint gonna be waiting at the airport for you.