DCA Claimform - MBNA Card debt with No Default Notice **WON WITH COSTS***

[postggj]

At The Very Least You Will Need To Do A Skeleton Argument And Include That Statement Of The New Facts

 

Do A Statement Of Truth At The End And Send A Copy To The Court And Dca

[caro]

I'm not familiar with these things either, but I suggest that with you do as postggj says, and add a covering letter for the court, that since swearing the affadavit new evidence has come to light which you believe has a significant effect on your defence. If possible take it to the court yourself to save time and see what the court staff have to say about it. I don't know for sure but they may say you need to make an application to do this which will incur a fee. I have seen cases fail where things have been done by letter which the court would have accepted with a proper application.

 

Make sure the DCA get a copy. I don't know what it is, but if it's as important as you think the DCA may change their minds about pursuing this.;-)

[banker_rhymes_with]

Hello V!

 

Don't forget to ask for your Costs when you win the SD Set Aside!

 

Cheers,

BRW

[Valdez is Coming]

Ok thanks Postggj and Caro...l will write a Statement of New Facts and take it to the court tomorrow. That way l can be sure they have it and it will, hopefully, be admissible. Working on skeleton argument as l type.

Thanks for your help....l will continue posting....Court date is Thursday.

[caro]

I've been thinking about this and it may be wise to prepare an N244 application to submit the new info in case the court say you need it.

[caro]

Hello V!

 

Don't forget to ask for your Costs when you win the SD Set Aside!

 

Cheers,

BRW

 

I like your optimism and positivity.

[postggj]

i thought of that caro but we have time against us now

 

i believe its thursday the hearing

 

not alot of time for sending to the creditor and to be acknowledged by the court

[caro]

True, but if push came to shove it might be worth taking on Thursday. Hopefully if the new info is in the witness statement the judge may allow it and perhaps adjourn to give the creditors the opportunity to deal with it?

[banker_rhymes_with]

Hello V!

 

The key with this is to go back to the basics.

 

Do read the SD Set Aside Links that caro has Posted above, and hunt out any others on CAG. I think Surfaceagentx20 Posted a good Thread, so search on that CAG ID to find it.

 

But then think through the key issues that relate to the Debt itself. It appears to be a Debt that arose in relation to a Regulated Agreement, that the original Creditor felt you had not paid, for what ever reason.

 

So...

 

(1.) Where is the original properly executed Regulated Credit Agreement?

 

(2.) Did you send MBNA a s78 (if it was a Credit Card) or s77 Request (if it was a Loan)?

 

(3.) Did MBNA respond to the s77/s78 Request?

 

(4.) If they failed to respond, or their response was not readable, or failed to provide both the original terms and the current terms at the time of the Request, or a Signed Statement of Account, then read up on s78(6) or s77(4), as applicable.

 

(5.) Did MBNA say they were going to Charge-Off the Debt? i.e. write it off against Tax. That alone may suggest they Terminated it.

 

(6.) Did MBNA restrict the facility before Sale, or did they demand the full balance at any time, i.e. a total that included Arrears and also sums not yet due?

 

(7.) When the DCA came along, was the Agreement capable of remedy? IOW, when they issued their own Default Notice, was it served under s87(1) and what amount did they ask for as the default sum, what did they say you had done wrong, and did they suggest the issue could be remedied by you? It sounds like they cocked-up the time allowed anyway!

 

(8.) Did the DCA then demand the full sum, and was that comprised of Arrears and also sums not yet due?

 

I suspect as you work through these questions, you may start to see the true weakness of their case, and the likely strength of yours.

 

It's a shame the MBNA SAR won't be back in time to help (although it might be), because I suspect that will tell you many useful things.

 

On Monday, I would drop the other side a line and make a CPR 18 Request for some key details, such as:

 

(A) What was the Date on the Deed of Assignment.

 

(B) What was the Account Number.

 

(C) Was the Agreement Terminated at that time or not.

 

These are simple questions to ask, so give them 7 days to answer them. I suspect their answers may be in conflict with both your own research, and also the likely results that may come back from MBNA via the SAR.

 

Then start making a case why the SD is weak, and show the Judge that they either have no Claim if there is no Agreement, or their Claim may only be limited to just the Arrears if there is an Agreement but the Termination of it was compromised via their failure to issue a valid s87(1) Default Notice...or was already Terminated before the DCA even acquired the Debt.

 

If the Arrears are less than £750, then the SD will fail. So the key is to throw doubt on the Agreement being enforceable, and then ram it home that even if the Arrears are due, there may be other issues such as, say, s140A Unfair Relationship if both the DCA and MBNA before them ignored your Consumer Rights.

 

In summary, the main Defence will probably be a standard Card/Loan issue, the same as many other MBNA issues on CAG. Show that you have a strong case there, and getting the SD knocked on the head should be fairly easy.

 

As I say, when you win, then shaft them for your Costs...£9.25 an hour time Costs, plus all of your Disbursements.

 

Cheers,

BRW

[Valdez is Coming]

Banker....many thanks for yr detailed and positive responses.., you have cheered me up.

 

I have sent a CPR request to DCA - but they have ignored it.

Doubt l will get SAR before Wednesday so l can't rely on this.

Have just finished my skeleton argument (8 pages) which relies on faulty DN and unenforceable agreement.

 

Have also mentioned Notice of Assignment, as l never received one, and abuse of process.

 

The DCA really has very little - the illegible copy of the application form they sent does not even show a compnay name at the top of it!

l know l have a strong case, but l am worried about getting an unreasonable judge on the day who will not listen.

If l am successful, l will surely ask for costs and may also take legal action against them for damages re the invalid DN. Any other advice very welcome....many thanks....also to Caro.......best wishes, Valdez

 

I am going to the court tomorrow and will ask about this.

Will also mail copy to Claimant

Thanks both for yr help with this

Will post tomorrow night with news of outcome re new facts

[caro]

I suggest you email or fax it to the claimants. If it's as good as you think they may just decide to throw in the towel.

 

If they attempt to do this only agree if they will remove any adverse data from your credit file.

[Guest]

Thanks Ford. I have clicked the red triangle on your last message as advised - but it states 'only to be used to report spam, etc'...

 

apologies site team for suggesting the 'triangle'!

[miss muppet]

All fingers and toes crossed for Thursday Valdez, the drinks will be on you!

[Valdez is Coming]

Just an update....prepared Statement of New Facts and took it into court today.

No problem, it will be added to my witness statement and there was no charge. They advised me l could do this at any stage prior to Thursday morning.

Will be faxing a copy to DCA tonight to give them something to think about first thing tomorrow. I am certainly not going to blink first!

Thanks, Miss Muppet, for your best wishes....l will post the result Thurs evening, good or bad.

They really do not have a case based on the facts, but we have to take part in the DJ lottery l guess.

Anyone know what l can do if he/she rejects set aside appeal?

Regards to all and many thanks for your help.............Valdez

 

An update...prepared Statement of New Facts and handed this in at the court today. No problem, they said l could do this at any time before Thursday (hearing date).

Also no charge.

I am going to fax a copy to DCA tonight to give them something to think about first thing tomorrow.

They really do not have a case based on the facts - but the DJ lottery still worries me.

Anyone have any advice on what l can do if he/she says no to my set aside appeal?

Thanks to everyone who has posted on this.....Valdez

[banker_rhymes_with]

Hello V!

 

Do not forget your Costs, because you will be entitled to them.

 

The enemy will always assume that Litigant's in Person will be too relieved to think about Costs if they win, but don't miss this chance to hit back at them.

 

Many Judges do not like the Courts being used as a Debt Collecting Threat Tool by the DCAs, and if you present your Case well, and show the other side have abused the Court process to press home a lame attempt to scare you into paying, then many Judges will be only too pleased to sign off a nice fat Bill of Costs.

 

This may help (I do wish I could remember where I Posted this, so here it is again):

 

One good tip on Litigant in Person Costs, is to know that the 2/3 Cap only applies to your Time Costs. IOW, the LiP Rate of £9.25 an hour.

 

Thus, when drawing up your Bill of Costs, always split it into two main sections, i.e. Time Costs and then Disbursements.

 

There are no limits on Disbursements, provided they are clearly reasonable and in keeping with the work done.

 

Disbursements are things like Postage, Carrier Costs, Printing, Paper, Ink, Telephone Calls, Car Fuel & Car Running Costs (to get to/from anywhere as part of the work done), Photocopying, Scanning, Accommodation, Travel & Subsistence, i.e. anything where you can substantiate a reasonable Disbursement.

 

Thus, it is quite conceivable that a Litigant in Person's costs could exceed that of a Lawyer, because a Lawyer is not allowed to include routine items like Paper and Ink etc. This is because it is assumed they include that as part of their fees, and have Gofer Staff to do the Menial Tasks for them. By comparison, the Court knows that a Litigant in Person would have to do everything themselves, and those tasks usually have a cost.

 

For example, if you use a Car or Bike to get to Court, then establish the mileage to Court and double it (because you also have to get back). Then find out a reasonable average for the cost of Fuel in your area. Then establish a reasonable Miles per Gallon, say, 30mpg for an average vehicle and, from that you can submit a Fuel Cost. Then add a reasonable running cost per mile for a vehicle, perhaps 10p or even 20p a mile, all is OK provided you can argue it. It could be higher if you factor in Road Tax, Depreciation, Running Costs, work out the annual cost, and divide that by 10,000 Miles average, and it may well work out at 50p a mile. Multiply that by the round trip mileage to Court, and that's the Disbursement for that!

 

IOW, if a Lawyer's fees would've been £1,200 and you claim £1,000 for your Time, then the 2/3 Cap would limit you to £800, that being 2/3 of the £1,200 a Lawyer would charge.

 

However, if you can show £600 in Disbursements, then your total fees would exceed the Lawyers, i.e. £800 allowed on Time Costs, and £600 for Disbursements, makes £1,400 in total, and that could be allowed because you are not getting more than the 2/3 Cap on your time.

 

So, make sure anything that is a Disbursement is removed from your Time Costs, and make sure you do charge for every second of your time at £9.25 an hour...the Court will limit you to 2/3 of a Lawyer's fees, but better that than under-claim and get less than you deserve.

 

Finally, there is Case History to support this:

 

Wulfsohn, R (on the application of) v Legal Service Commission [2002] EWCA Civ 250 (8 February 2002)

 

Also...

 

Mealing-McLeod v The Common Professional Examination Board 2000 All ER D 436.pdf

 

You owe it to yourself to strike back at these muppets, and the best way is to hit them in the trousers...that being where they are/were hoping to pocket a large chunk of your family's wealth.

 

So, do work out a Bill of Costs, and get that to the enemy at least 24 hours before, and file a copy with the Court as well.

 

This is standard practice, and you can be quite sure they will be doing the same to you if they win.

 

Leave no stone un-turned, and claim for absolutely everything and anything that you can.

 

Disbursements: Car running costs to get to/from Court (both for the Hearing and when dropping off any documents, like the Bill of Costs for example!), fuel, Parking Tickets, paper, A4 Folders, Electricity, Ink/Toner...just calculate a reasonable sum for everything, and take these calculations with you to back up your main figures.

 

Seriously, play to win, and part of that is the production of your Bill of Costs ready for when you do.

 

Cheers,

BRW

[Valdez is Coming]

Wow Banker! That is some info.

I was going to put in my costs as a single document, but will now revise this as you suggest. They have cost me a small fortune one way or another! Maybe they will pay me my $100!!!!! Wish l had a Henry rifle.

Still v worried l will get an uncooperative DJ on the day though.

Many thanks for this............Valdez

[Guest]

valdez,

you've had some excellent input from brw, caro, postggj et al. all the best for thursday.

[Valdez is Coming]

Many thanks Ford....l appreciate the support everyone has given...will let you know what happens, good or bad.

Regards..................Valdez

[Valdez is Coming]

Hi everyone....just reminding you l am in court tomorrow!

Feel l have prepared thoroughly, but still a bit nervous.

Have look at this thread tomorrow night, l will post outcome

whether good or bad news.

Sincere thanks to everyone who has helped me with this.......Valdez

[colin21958]

Hi everyone....just reminding you l am in court tomorrow!

Feel l have prepared thoroughly, but still a bit nervous.

Have look at this thread tomorrow night, l will post outcome

whether good or bad news.

Sincere thanks to everyone who has helped me with this.......Valdez

 

Good luck hope it goes well! Come back and post good news!

[miss muppet]

Good Luck Valdez, you'll be fine x

[Valdez is Coming]

Hi everyone!

Well went to court today - bit of an ordeal and very nervous to start with.

But..........l won WITH COSTS AWARDED!!!!!!!!!!!!!!

 

It was the invalid default notice which swung it and, although the DCA can still pursue the arrears in County Court, these are mush mush less than the amount they were trying to make me bankrupt for.

 

Interestingly, the DJ, who was mostly very fair and open minded and listened to both sides and discussed issues (and also seemd to have a decent CCA knowledge) let the Claimant's barrister get away with an illegible photocopy application form and some unconnected T&Cs, which were clearly not originals, as an executed agreement based on the CAREY RULING.

 

I don't understand this bit and, as we are likely to come up against this more and more, feel we need to get more discussion going on this case.

 

Anyway, enough of that for now. Thanks to all who helped me and a donation will be on its way when costs are paid. Wonder if l'll have to send in the bailiffs???

 

Finally, on this subject, do l have to write to the DCA re costs order or will the court do this?

 

Off for a few well earned beers soon. Very draining emotionally, but very satisfying that with help from CAG l was able to argue my case successfully on the day! Cheers everyone!

[miss muppet]

Wonderful news Valdez, expect someone will be along to discuss the Carey issue. Hope you're out enjoying your well deserved refreshments.

[miss muppet]

Forgot to add, court will be ordering DCA to pay.

[caro]

YIPPEEEEEE!!!

 

Well done Valdez!

 

 

Enjoy your victory and when you're ready here's a bit of bedtime reading for you.

 

http://www.judiciary.gov.uk/docs/judgments_guidance/judgment-carey-v-hsbc.pdf

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html#post2672995

 

I've merged your 2 threads on this issue and amended the title Valdez.;-)