HELP !Arrow Global Court Claim V's Squidward

[squidward]

Hi All

 

I have been on a dmp with PayPlan for the past 12 months Payplan -

MBNA have received monthly payments each month from the plan without fail.

 

Today I have received a county court claim form from Arrow Global asking for full payment within 14 days or I will receive a CCJ. I have A Notice of Assignment.

 

I applied for a CCA which is shown below in which the terms and conditions don't seem to match the agreement although they do appear to (I think) be part of the same document. The agreement front refers to section 11. ? The reverse in section 1.4 (b) refers to sections 2.4, 2.5 and 3.6. Again these are not on the 4 corners of the agreement. I'm not 100% sure but I would say there is enough doubt that this agreement therefore does not comply.

 

Front

 

 

Back

 

 

I have also received a Default notice dated the 9 th of November and received this 11 / 12 th November 09 unfortunately I didn't keep the envelope from this. Does any one tell me if the Default is correct ?

 

 

I haven't started a reclaim of any charges or challenged the agreement as I didn't want to jeopardies the Pay Plan dmp!

 

PayPlan have suggested filing an admission statement but then MBNA will get Judgment against me although the court will take into account my Income and Expenditure.

 

I need to find a quick way forward - if this goes to court I may as well defend myself and put up a fight I don't want these bullies to get the best of me!

 

I feel ready for a fight with this one but need to get the odds in my favor and I think time is short!

 

Any suggestions ?

 

Questions

 

1.Is it to late to file a defence for the CCA being unenforceable if it is ?

 

2. Do I have enough time to go Via CPR 31.16 ?

 

3. Is CPR 31.16 the best way to go at this point?

 

4. If I file a defence would this allow me enough time to put in a claim for charges and interest, would I do this with a Subject access request or could I include this in CPR 31.16

 

Sorry about questions but would like to move on it

[Bazooka Boo]

IMO that isn't a Credit agreement, but merely an application form, was this filled in on their premises? Unlikely, but there is no signature from them and where are the rights to cancel, did they send you these details through the post like the form refers?

 

Is that a Stat Demand you have received today?

 

Have you acknowleged it? You have up to 18 days in which to do so and provide your defence to get it set aside.

[Bazooka Boo]

http://www.consumeractiongroup.co.uk/forum/swift-advances/197346-underwriting-sheet-using-cpr31.html

[squidward]

Hi Bazooka

 

IMO that isn't a Credit agreement, but merely an application form, was this filled in on their premises? Unlikely, but there is no signature from them and where are the rights to cancel, did they send you these details through the post like the form refers?

 

Is that a Stat Demand you have received today?

 

Have you acknowledged it? You have up to 18 days in which to do so and provide your defence to get it set aside.

 

This was a copy of the agreement/ application it was an offer with the tear off slip ( I still have the top section ) which I signed and sent back card appeared a few days later.

 

 

 

There does appear to be a signature in the middle paragraph but not in a box!

 

The right to cancel appears just above the signature box.

 

They also sent me this Call Centre sheet - but that's all I got!!

 

 

I have received the County Court Claim form in the post for the full amount 9k in total I haven't acknowledged it as yet.

 

Payplan have said sign the admission and send to them they would do an Income and expenditure - I don't want to do this as I think it's worth having my day in court.

 

Below is a scan of the claim form ( personal info removed )

 

 

Thanks Squidward

Edited July 13, 2010 by squidward

[Bazooka Boo]

Yes I can see the sig you mean, means nothing! The cleaner could have signed that...as for the RTC, agred I can see where it states your right to cancel, but it also says that this information will be sent to you, and as you signed this off their premises, would be IMO unenforceable for this alone, then there's the eronious signature just randomly jotted in the middle of the page.

 

SD's and filing defences are a bit out of my league, so hopefully someone with more knowledge on this will pick this thread up, but I do believe you can enter an 'embarassed' defence with this.

I'll see if the site team can move this into the legal forum.

[citizenB]

Moved to legal forums:)

 

Suggest you have a read of the following threads..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/266440-ccj-defence-due-please.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/254011-wycombe-restons-mbna.html

 

Did you receive a Notice of Assignment from Arrow Global ? It should have been sent Registered/Recorded mail. Assignments from AG are not always accurate so you could possibly question their standing in court.

 

You should read the following threads. These will tell you how to go about obtaining documents mentioned in the claim form, but which you havent got.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/255329-cpr-18-cpr-31-a.html

 

You will need to request statements from inception in order to assess if the amount they are requesting is accurate.

 

You have blanked out what the POC says.. if you could let us know that, it would be useful. Some claim forms arent fully particularised so you dont know what case you have to answer.

 

Be sure to keep to time scales.

 

Date of issue + 5 days for receipt

+ 14 days to acknowledge (that is if you are going to defend)

+ a further 14 days to submit your defence

 

by the 19th day from the day of issue you should have acknowledged the claim and whether you are going to defend.

 

by the 33rd day you will need to have submitted your defence.

[Bazooka Boo]

Thank you CB..

[squidward]

Thank You BB & CB

 

Will read through

 

Squidward

[squidward]

here are the POC

 

"The Claimant's claim is for the sum of XXXX.XX being monies due from the defendant to the claimant under a regulated agreement between the defendant and MBNA ( No. xxxxxxxxxxxxxxxx) and assigned to the claimant on 23/12/2009, notice of which has been provided to the defendant.

 

The defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served pursuant to the Consumer Credit Act 1974.

 

And the claimant claims the sum of XXXX.XX "

 

 

NOA was sent by standard post

 

I hope that this gives a bit more insight - MBNA appeared quite happy to accept a lower payment then Arrow got involved and they just want more!

[citizenB]

Have sent you a private message, squidward .

[squidward]

I've replied to your PM

 

Cheers

 

Squidward

[steven4064]

The agreement in post 1 is both an application form and a consumer credit agreement. It hs your signature and all the prescribed terms and is therefore enforceable. The DN seems to be valid too.

 

You asked me whether it is worth fighting. IMHO, no

[wycombe]

The agreement in post 1 is both an application form and a consumer credit agreement. It hs your signature and all the prescribed terms and is therefore enforceable. The DN seems to be valid too.

 

You asked me whether it is worth fighting. IMHO, no

 

Unfortunately I have to agree about the DN - if sent second Class it would have been served within time so there is no salvation here.

 

The question is are there problems with the Application form/Contract and is there enough there to make a decent fight of it?

 

If the two parts shown are the same document then one can only argue using fairly minor points. At the moment I do not have the time to examine this closely to find the flaws here. Have a look at the first part of my WS and see how many of the arguments/points I have raised apply to your form. Regretably the DN arguments are useless to you unless there are flaws with the amounts claimed or the format of the document. You will need someone with more expertise than me to check this.

 

Have a look at post 236:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/254011-wycombe-restons-mbna-12.html

[gh2008]

hmmmmm

 

I agree with Steven, although the agreement is improperly executed I cannot see a DJ refusing enforcement.

 

Also the DN looks to be ok - although the stop being placed on the card is a vit dubious as if you had rectified the default it should have been treated as though it had never happened, yet there is nothing to say the stop would be lifted hence what was the incentive to comply .....

 

SO ....... that leaves the assignment - how brave & how much time dp you have to research things .......

[gh2008]

There is another 'pro-active' option open to you and that is for you to make an application to Court for a S129 'Time Order'

Basically a binding order on you & AG - you keep to it AG can do nothing.

[gh2008]

Ok 1 major issue with the DN

 

There is no Paragraph 8 of the agreement (well the one they are relying on)

There is no requirement in the agreement to repay arrears immediately

 

 

oooooops IMHO the DN is therefore fatally flawed

[steven4064]

Whereas I agree with gh in principle, paragraph 8 will be on the T&Cs issued with the card and which they should have sent you in response to your s78 request. I think a Dj would not necessarily find the DN defective but could be persuaded to find that MBNA had not met their obligations under s78. THey would be in default but could remedy it by supplying the T&Cs. Then the DN would be OK

[diddydicky]

the signature of the creditor would probably be acceptable (anywhere on the document other than the debtors signature box)

 

IMO this is a pre contractual application form and the terms and conditions have been "knocked up" and since the very first statement on the front refers the signator should refer to s11 which is not there- clearly indicates that this is not the original agreement that the debtor would have signed

 

it is i believe a re constructed (constructed) pre contractual application form and does not contain the prescribed terms within the signature document.

 

the assignee is very unlikely to be able to comply with the conditions regarding to hearsay evidence and/or to prove the archiving/retrieval of the document- to show that the prescribed terms were present when this application form was signed and i would definately defend it

 

further- contrary to what has been said above- the DN- if sent second class would not be compliant as it would give only 13 days after service

[wycombe]

 

further- contrary to what has been said above- the DN- if sent second class would not be compliant as it would give only 13 days after service

 

DD is correct - I misread the date on the DN. I must be as blind as a bat as I read it as 29th to remedy - when it is the 26th. Salvation is to hand if sent 2nd Class so the OP seems to have good grounds for contesting the claim after all.

[gh2008]

On the top right hand corner of the front there is a small piece of paper above the cut line - this does not appear on the 'reverse'

 

Also part the scissors and the dashed cut line appear on the left hand side in both the 'agreement' AND the 'letter' halves of the page ....

 

and agree with DD about the dates - I didn't even check them

 

Your 'banker' at the moment is, as Steven has said, they have not complied with the S.78 request and therefore cannot enforce.

 

I would send a CPR31.14 for the agreement and DN (which they are going to rely on) and see what they come up with.

[squidward]

Just checked credit file

 

Default was registered 31/10/09 remedy to be 26/11/2009

 

 

So Defaulted before they sent DN !!!!!

[citizenB]

Just checked credit file

 

Default was registered 31/10/09 remedy to be 26/11/2009

 

 

So Defaulted before they sent DN !!!!!

 

I thought they had to send the Default Notice PRIOR to registering the default at the CRA ?

 

That is after all, one of the things they advise they WILL do if the remedy date is not met.

[diddydicky]

oh dear- its gets worse

 

so, if you remedy the alleged default within the 13 days that they allowed for you to do so- then under s89 it would be "as if the breach had never occurred"

 

well, once your credit record is spoiled- and seen by others- rather like a slander- it cannot be taken back

 

therefore i would argue that apart from the time problem with the DN

 

the DN itself was not a valid DN since at the time it was served- it was not possible to lawfully comply and its purpose and intent (s89)was already defeated by the creditors actions on 31/10/09!!

[citizenB]

Nice one diddydicky:D Thank you.

 

squidward, please print off the page (if you saw your file online) showing that default was entered on that date. That way it cant be altered:)

 

A screen shot of the page will be useful as well

[squidward]

Printed file and a nice screen shot with dates etc

 

Squidward