MBNA...So where do i begin??

[exasperated]

Barrowby,

Follow the advice you get from the legal forum and hopefully it wont come down to luck!

I would imagine that the dispute letter will be contained in your bundle so Optima will be getting a copy of it anyway.

I am no expert but I doubt it would go all the way as If you get the right Judge and they will know this, I cant see the courts enforcing on an application form. Not only will they then have no rights to collect on that debt, they have also wasted alot of money with the legals.

I suspect/hope that they will reconsider their position once they are aware you are being advised.

[barrowby]

Hi,

 

Dotty...I have hit the red triangle...so now lets see what happens!

 

Exasperated, Thanks for your comments...I too think that this won't (and shouldn't) even go to the court.

 

Does anyone have any thoughts on when I should be looking at F&F deals?....based on the defective DN alone they could only ask for the arrears.....correct?

 

Or should I let them squirm based on a dodgy agreement and DN!!

 

Thanks

[barrowby]

Silly question (perhaps!) But as MBNA (via Optima) have now issued proceedings against me, does this constitute a termination of my account?

 

Thanks

[dx100uk]

interesting question

 

i wonder if the three guests from mbna/optima could ans that;)

 

dx

[Dotty50]

Oops, I was a guest, not logged in as I am at work!

 

MBNA do not appear to issue standard termination letters, but if you check you DN it should state on there that if the arrears are not paid by the remedy date, they will terminate your account.

 

Your DN isn't on here anywhere is it?

[barrowby]

Well dx....I would be glad to hear from them if they could! My understanding was that as proceedings had now been issued against me the "facility" was therefore withdrawn..read Terminated!

 

I hope that companies like Optima or MBNA do read these sites and see that there is a wealth of knowledge available to the lay person and that if they want to avoid undue costs etc they should perhaps start being more accomodating and stop wasting the courts time!...If your client has messed up...then face it and try to get the best deal for them!!!

[indebtandharrased]

Silly question (perhaps!) But as MBNA (via Optima) have now issued proceedings against me, does this constitute a termination of my account?

 

Thanks

 

There may be another, and more concrete way, to establish if your agreement was ended PRIOR to the DN being served - and therfore unlawfully under the CCA 1974. I suggest you read this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/270471-me-restons-mbna-defence.html#post3059492

 

You will need to get the communications log from MBNA (Subject Access Request) - or simply get the info from Experian about your account status.

[barrowby]

Hi,

 

Well i have sent my CPR 31.14 to Optima and a SAR to MBNA.

 

I am now fleshing out my defence and had a question...

 

As I see it (and with the advice given on CAG!) I have not only an unenforcable CCA (no prescribed terms etc) and a defective DN (by 2 days)...so...

 

If I structure my defence based upon an un enforceable CCA will tihs be strong enough on it's own.....or do I have "Judge Lottery"....or

 

....if I build my defence on the fact of a defective DN does this mean that I have to accept that the CCA is not unenforceable and that a contract does in fact exist between me and MBNA....but they have broken the terms by issuing a DN with a remedy date 2 days short?

 

Thanks

[barrowby]

Also just looked at my credit file....I could only access one online but it shows the Default Date of my account as 5 days before the date of the DN sent to me by MBNA!

 

I am waiting to see the other 2 reports. I won't have the SAR back form them (I doubt anyway) in time to submit my defence.

 

Any advice?

[freethemice]

Nothing at court happens quickly though so prepare for a long haul.

 

Your cpr31.14 request should be answered promptly if not resend recorded and keep the proof.

 

Did you ask with this for the date of Termination. You will need this date to work out how much was due if you are going down the unilateral cessation of contract route.

 

Find out what date your defence needs to be submitted by. If you do not have the information needed by that date consider asking the court for a stay to let the other side find this information. You should above all be seen to be reasonable. You should also follow court deadlines closely but don't expect the other side to.

 

Once your cpr gets answered you will have to decide if they have a good case and settlement should be saught.

 

Unenforceability is proving complex and tricky at the moment with judges prefering to believe the honest and trustworthy bankers when the reconstiture what your agreement would have looked like.

 

Let's pretend I am the judge.

 

"So you agree you applied for this Mbna card, receaved and used it for purchases. Why do you think you shouldn't pay Mbna back now?"

 

Oh and I would forget getting defaults removed from your name this isn't classed as enforcement action anymore (mcduff) and the courts will not be interested.

[barrowby]

Hi Freethemice,

 

I have sent my CPR 31.14 request asking for the agreement and the Default Notice. I did not expressly ask for the Termination date....I will advise further if (and when) I receive a reply.

 

I did send it recorded and it has been signed for already. Is it 7 days from receipt?...and is this business days?

 

It is appearing more likely that I will follow the defective default notice route, especially if (as shown on my credit file) the account was defaulted 5 days before the DN was dated to me! so I had no chance of reversing the default even if I could have!

 

Can you expand further on the removal of the default comment?

 

Thanks

[barrowby]

OK,...brief update...and a question to those learned ones out there......received my CPR 31.14 request back....same unenforcable agreement ect as per post #1....inc current T&C at my new address.....but.....the DN is dated differently from the original that I have. Can't be more specific at the moment as the docs are at work.....but wanted to know if anyone has come across this before??....or could point me in the direction of posts to read?

 

Can they just re-date DN's to suit???....oh....of course they can...silly me!...they can do what they like!!!

 

Thanks

[barrowby]

Can anyone help with my post above?...Thanks

[dx100uk]

scan it up.

 

what are you getting at?

 

dx

[barrowby]

Thanks DX, Not near a scanner this weekend....but here are the issues:

1. Initial DN issued short by 2 days

2. When I checked my Credit Records I found that the Default was registred on my file Before (5 days i think) the date of issue of the DN. I have checked all 3 main ones and the all show the same.

3. Now when I received the reply to my CPR 31.14 they have supplied me with a different DN with an issue date Later (about 5 days) that the original DN.

 

Can they just change the DN's?........

 

Now I need to enter my defence in the next week and I am trying to figure out the best angle to use.

 

Thanks

[dx100uk]

court is not my strong point.........

 

however, i would p'haps get a bit together to poss inc in your defence all this evidence about the DN dates to allow the judge decide?

 

how about pinging freethemice to pop in?

 

dx

[freethemice]

I am no legal expert but I have had experience of the court system. The impression I get is that the judges although expecting a properly pleaded case would also need to be guided as to how this disadvantaged you. A witness statement from yourself detailing what you believe happened along with proof that if given enough time you would have complied with the terms of the default notice and paid arrears due would help.

 

You see at the moment all you are saying is that they got the paperwork wrong without going into any detail as to how you think this disadvantaged you.

 

Even if the default notice was incorrect and they should not have terminated you would still be liable to the arrears due at the time of the termination. This would need a part admission with a set-off argument for damages to your reputation for unlawful repudiation.

 

Quite tricky getting all this right and then getting lucky with a judge that will actually listen to you rather than just nod his head and agree with everything the vastly overpaid barrister on the other side says.

 

Best advice - gather your best case (along with calculations to show how much if anything you should owe) pay for an hour or two of a solicitor experienced in civil law and see where you stand.

 

If your case still looks good use these forums and google to prepare your case and if it comes to it hire a barrister to present your case at court.

 

Good settlements can usually be reached in these cases and it is something to consider. Debt and money worry eats at you, keeps you up long hours and can alienate you from your family. You have to be sure this is the right path for you. You did spend the money after all is said and done so surely something should be paid!

[barrowby]

Hi, JUst a quick question...which i hope someone can answer today!

 

Am i write in thinking that a DN cannot contain penalty charges within the amount of arrears requested?

 

I think that I have read so many posts on this site that I am getting bits and pieces mixed up.

 

Thanks

[dx100uk]

correct

makes it invalid

 

dx

[barrowby]

Thanks DX,

 

Can you point me in the direction of a holding defense as i need to submit it very soon. I am unsure if i should pursue the route of unenforcible CCA or the fact that I have had 2 unlawful DN's issues and a Default registered on my CR before the first DN was even written. I am awaiting a reply to my SAR which is due in the next few days, but after the date the defense is due.

 

Any help appreciated!

[dx100uk]

i've put an alert on your thread for help

 

dx

siteteam

[MARTIN3030]

Have a read here;

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?165197

[MARTIN3030]

Here too;

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?245171-MBNA-Optima-Legal-Court-Papers-Rec-d!

[citizenB]

Thanks DX,

 

Can you point me in the direction of a holding defense as i need to submit it very soon. I am unsure if i should pursue the route of unenforcible CCA or the fact that I have had 2 unlawful DN's issues and a Default registered on my CR before the first DN was even written. I am awaiting a reply to my SAR which is due in the next few days, but after the date the defense is due.

 

Any help appreciated!

 

Do you need a holding defence because you dont have information/documents requested from the Claimant by way of CPR31.14 ?

[barrowby]

Hi citizenB

 

No, I did receive a copy of the "agreement" and a DN...but the DN was a copy of something that I had never received before....the one that I got was dated 3 days earlier and this first i knew of this was when the POC mentioned it.

 

I was thinking that I could ask for the claiment to prove that they sent this to me?

 

Thanks