Varde/Brachers claimform - MBNA card

[Smoothound]

The above are all I have apart from begging letters and threats I think. Do they help?

[Bazooka Boo]

DN is faulty, unless you received it on the very same day they printed it?

 

Have they now terminated this agreement?

[Mr-Pieman]

Ok Smooth,

firstly you must acknowledge the claim.

Secondly get your CPR 31.14 in ASAP registered or special delivery you must request the deed of assignment, Cabot tried this MBNA sold debts offshore to Ireland some sort of tax thing. They will be very reluctant to give you the deed but this is vital. How can Varde collect under a UK court when the debt is covered by Irish law?? They will not supply the documents in 7 days you then must file an application to force them to disclose the documents, this isn't small claims they must disclose. If they fail to disclose go for a strike out.

 

do a search for Cabot test case the poster was Rhia

 

 

PM

[Dotty50]

The default notice states that the account will be closed and terminated on or after the expiry date.

 

I don't believe that MBNA sent out anything else to confirm termination but selling it on would indicate that they have.

 

But aren't faulty DN's irrelevant now as they can simply issue another? Can't understand this bit myself, if it has been terminated, that should be it!

[Bazooka Boo]

Yes they can issue another, but only when they, the OC, are made aware of the fact that it is faulty.

 

So if it is subsequently 'sold' to a 3rd party, then only the arrears become liable, not the full balance. But I have had an extremely bust three weeks so, once again I may be wrong. Yes I know that paperwork arguments should not be your only defence, but if they can't get even the basics right, you can bet your bottom dollar everything else is cock eyed too.

 

It all forms part of your defence..

[Mr-Pieman]

Just on more thing the following case is very similar I would follow Andy's advice time is very much of the essence.

 

search for "MBNA Claim form recieved.... advice required." posted by mani99

 

 

PM

[citizenB]

In the DN, they refer to "paragraph 8 being the breach" The T&cs are very blurry but from what I can see "Clause 8" refers to termination and IMHO, you will be unable to remedy that ??

 

Did you really tick the box for PPI ??

[Bazooka Boo]

It does also say in that clause 8 that they can only terminate this agreement once all cards have been returned and destroyed? Is that the case here?

[Smoothound]

Didn't notice an option to acknowledge online so I will write.

 

Writing my CPR out tonight but I'm getting confused which docs to ask for!!

 

I'll read the threads mentioned at home tonight

[AndyOrch]

http://www.consumeractiongroup.c o.uk/forum/showthread.php?120057-Cabot-Test-Case! Thats Rhia,s thread.

 

Andy

[Mr-Pieman]

Hi Smooth,

in my opinion you need to ask for the following.

 

1. Deed of assignment to prove an assignment between MBNA and Varde has ever existed for the account number given in the POC. They are claiming one took place let them prove it.

2. Notice of assignment and proof of service. They should have sent this recorded or special delivery.

3. The agreement and all relevant T&C

4. All statutory notices i.e Default Notice, Termination Notice & notice of arrears

5. Full statements for the agreement as detailed in the particulars of claim.

 

They won't send you the deed as they will say it's sensitive info, but without it they have no proof of assignment. If they decline say that you need to see it to make sure that a UK court has jurisdiction.

 

 

This was taken from the thread I mentioned earlier :-

 

Procedure for disputing the court’s jurisdiction

 

11

 

(1) A defendant who wishes to –

(a) dispute the court’s jurisdiction to try the claim; or

 

(b) argue that the court should not exercise its jurisdiction

 

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

 

(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.

 

(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.

 

(4) An application under this rule must –

(a) be made within 14 days after filing an acknowledgment of service; and

 

(b) be supported by evidence.

 

 

(5) If the defendant –

(a) files an acknowledgment of service; and

 

(b) does not make such an application within the period specified in paragraph (4),

 

he is to be treated as having accepted that the court has jurisdiction to try the claim.

 

(6) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including –

(a) setting aside the claim form;

 

(b) setting aside service of the claim form;

 

© discharging any order made before the claim was commenced or before the claim form was served; and

 

(d) staying(GL) the proceedings.

 

 

(7) If on an application under this rule the court does not make a declaration –

(a) the acknowledgment of service shall cease to have effect;

 

(b) the defendant may file a further acknowledgment of service within 14 days or such other period as the court may direct; and

 

© the court shall give directions as to the filing and service of the defence in a claim under Part 7 or the filing of evidence in a claim under Part 8 in the event that a further acknowledgment of service is filed.

 

 

(8) If the defendant files a further acknowledgment of service in accordance with paragraph (7)(b) he shall be treated as having accepted that the court has jurisdiction to try the claim.

 

(9) If a defendant makes an application under this rule, he must file and serve his written evidence in support with the application notice, but he need not before the hearing of the application file –

(a) in a Part 7 claim, a defence; or

 

(b) in a Part 8 claim, any other written evidence.

 

The evidence is pretty much in their POC Varde is an Irish company in Dublin. The deed will prove that they have bought it hence they have no jurisdiction a English court, the debt is covered by Irish law. If they won't give you a copy request they bring a copy to your application that Bristol County court does not have jurisdiction.

 

As previously mentioned the DN is also invalid hence they have no current right of action.

 

Have you ever received a single letter, phone call from Varde has anyone ever?

 

PM

[Basil Fawlty]

Does the fact that Varde is an Irish company and under Irish law mean that they can't take you to court to recover a debt in the UK?

 

BF

[Smoothound]

DN is faulty, unless you received it on the very same day they printed it?

 

Have they now terminated this agreement?

 

I was told further down the thread that the DN was OK just? The problem was the fact the debt was sold before the DN could be remedied?

[Smoothound]

In the DN, they refer to "paragraph 8 being the breach" The T&cs are very blurry but from what I can see "Clause 8" refers to termination and IMHO, you will be unable to remedy that ??

 

Did you really tick the box for PPI ??

 

Yeah I did but only after a conversation on a free phone number on the form where a helpful MBNA employee told me I'd stand more chance of getting the card if I ticked the box!!

[Smoothound]

Does the fact that Varde is an Irish company and under Irish law mean that they can't take you to court to recover a debt in the UK?

 

BF

 

It seems odd as the address on the court claim blatantly says Ireland on it in more than one place if this is the case!

[Smoothound]

 

Have you ever received a single letter, phone call from Varde has anyone ever?

 

PM

 

Nope only from Expurto and their other trading names!

[ScarletPimpernel]

Does the Irish company have a UK consumer credit licence? They still need one to be a creditor in the UK, which they became when the account was assigned to them.

[Smoothound]

Below is my CPR letter so far. Any other input please feel free and I will post tomorrow recorded delivery.

 

 

Dear Sir,

 

Re: Varde Investments (Ireland) Limited v ********* Case No: *********

 

CPR 31.14 Request

 

On 13/11/11 I received the Claim Form in this case issued by you out of the Brighton County Court

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1. The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2. Deed of assignment.

 

3. Notice of assignment and proof of service.

 

4. All statutory notices i.e Default Notice, Termination Notice & notice of arrears.

 

5. Full statements for the agreement as detailed in the particulars of claim.

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

[Smoothound]

Is the above ok to send?

[Mr-Pieman]

Hi Smooth,

seems ok to me.

 

Don't forget to acknowledge their claim. I believe you have 14days from service.

 

PM

[Smoothound]

Both posted now. Wait and see what happens now!!

[car2403]

The agreement is unenforceable as it doesn't contain the prescribed terms - you need to use this time wisely and research, research and research these issues some more. It isn't going to be as easy as saying it's unenforceable, you need to show why it is.

 

Sitting back and waiting isn't an option if you want to be prepared to face this down in Court, as it may well come to that with recent successes these 'chaser' companies have had and this always spurs them on.

 

I'd suggest a cheeky little contact with the OFT regarding their Consumer Credit licence status, as suggested above. Although this won't help in your case, directly, the OFT need to understand what is happening here and they can't do that without individuals taking a stance, in vast numbers, to get some action.

[Smoothound]

The agreement is unenforceable as it doesn't contain the prescribed terms - you need to use this time wisely and research, research and research these issues some more. It isn't going to be as easy as saying it's unenforceable, you need to show why it is.

 

Sitting back and waiting isn't an option if you want to be prepared to face this down in Court, as it may well come to that with recent successes these 'chaser' companies have had and this always spurs them on.

 

I'd suggest a cheeky little contact with the OFT regarding their Consumer Credit licence status, as suggested above. Although this won't help in your case, directly, the OFT need to understand what is happening here and they can't do that without individuals taking a stance, in vast numbers, to get some action.

 

 

I'm a bit confused here as further down this thread I was told the agreement was OK? I know it's open to interpretation but I had this at the beginning of the thread where one says it's OK and another says no it's not! I've had the same said about my DN

[car2403]

I'm a bit confused here as further down this thread I was told the agreement was OK? I know it's open to interpretation but I had this at the beginning of the thread where one says it's OK and another says no it's not! I've had the same said about my DN

 

Your 'agreement' is an application form. The issue being an application form can be enforceable if the prescribed terms of credit limit, interest rates and repayment details are part of the same document. If they are in a separate document, the agreement is irredeemably unenforceable by s.60/s.61/s.65/s.127(3) CCA 1974. They will argue that the terms are part of the same document, therefore the agreement is enforceable. You need to argue against that. This is why I'm saying you need to research and come up with your Defence - no longer is a 'template' defence suitable in these cases, as they just won't work.

[Smoothound]

Your 'agreement' is an application form. The issue being an application form can be enforceable if the prescribed terms of credit limit, interest rates and repayment details are part of the same document. If they are in a separate document, the agreement is irredeemably unenforceable by s.60/s.61/s.65/s.127(3) CCA 1974. They will argue that the terms are part of the same document, therefore the agreement is enforceable. You need to argue against that. This is why I'm saying you need to research and come up with your Defence - no longer is a 'template' defence suitable in these cases, as they just won't work.

 

OK cool. I will be reading plenty this weekend I feel! As a complete legal/court virgin and not the brightest person on earth it does all get very confusing when one person says one thing and then someone else says something completely different!! From what I've read over the past few days the unenforceable CCA and UR defences are pretty much ignored by judges now?