MBNA Optima Defence Reply HELP!

[MBNAed]

Dear Caggers

I have received Optima's reply to my defence and could do with a little advice on a number of points:

 

1. Do I have a right to reply to their arguments against my defence?

2. They are stating MBNA sent the default notice by first class. Unfortunately, i didn't keep the envelope. Does anyone know who MBNA use for their postal service? And whether it is considered first or second class?

3. Regardless of the default notice date issue, they are stating that a court would find in favour of the plaintiff, referencing AMEX vs Brandon, where the judge stated: "The fact that the default notice may not have given the full 14 days, does not provide Mr. Brandon with any real prospect of a successful defence. In other words, it is not a defence which, in my judgement has a real chance of success." Has anyone come across this argument, and successfully argued against it?

4. The letter from Optima with the defence reply, is dated 29th July 2010. It gives me until 4.00pm on 12th July 2010 to withdraw my defence. (therefore 17 days in the past!). Does this clerical error help me in any way?

 

Thank you in advance for your comment and advice.

 

MBNAed

[Fluffystuff]

3. Regardless of the default notice date issue, they are stating that a court would find in favour of the plaintiff, referencing AMEX vs Brandon, where the judge stated: "The fact that the default notice may not have given the full 14 days, does not provide Mr. Brandon with any real prospect of a successful defence. In other words, it is not a defence which, in my judgement has a real chance of success." Has anyone come across this argument, and successfully argued against it?

This case is currently subject to an application to the Court of Appeal. To this end, should MBNA be seeking to rely on it, (and if they are they should send you a copy of the judgement) then you should request a stay of proceedings pending the outcome of this application.

Have a read of the last few pages of my thread, there are some useful comments.

This judgement transcript is not publicly available, however foregone conclusion that it was only a matter of time before the DCA's got wind of it! It didn't take them long !!

http://www.consumeractiongroup.co.uk/forum/legal-issues/244988-fluffystuffs-oh-hfc-7.html

 

Hope this helps.

[emandcole]

Helping with another Optima thread and they've just wheeled out Brandon in support of an SJ application and asked to move the hearing from the defendants local court to their local court about 100 miles away!

 

Given the fact this MBNA/Optima farce is also subject to PPI (Thorius v MBNA) that Optima got rinsed on it seems evident that the employees of this poor legal practice really do know how to scrape the floor.

 

The case has been stayed for ages as well, Optima need exposing I reckon

[GeoffreyAlby]

It would appear that Optima are betting all their chips on the Amex v Brandon case.

 

 

So far, the one case I know that has gone to court relying on Amex v Brandon, has been stayed pending the outcome of the Court of Appeal decision.

[jessie_girl6]

Just to add to this, my case has also been adjourned pending the outcome of this Appeal.

 

What was interesting, was the solicitor for the other side presented me with a Skeleton Argument 5 mins before we were to see the Judge which included this case. Neither she nor the Judge knew that it was going to Appeal and if I hadn't seen this very thread 2 days ago, I would have lost my case as the Judge's first question to the solicitor was along the lines of 'isn't there some case law that makes this default notice issue a de minimis issue?'. So from the very off, my fate had been decided and if it wasn't for this forum sharing what it knows, I would be sitting here with a CCJ and a big debt to repay. As it is, at least I have a lifeline.

 

Although the Judge went onto say that even if I won this time around, all they would do is reissue another DN as the debt remains. He would not have it that the agreement has been terminated (via contract law) but maintained I would still owe the $. Frightening!

 

So, CAGgers, keep up the good work!

[Series3]

Also mentioned to the DJ today that the amex case had application to appeal, he asked me how I knew, I told him I had read it on a consumer help forum...he asked the solicitor if she knew about this...she said she neither admits nor denies.(I had already informed her)

He asked me when it was going to be heard..I had to tell him that as far as I was aware it was pending permission to.

If I had more info he would have stayed it I think.

[GeoffreyAlby]

Just to add to this, my case has also been adjourned pending the outcome of this Appeal.

 

What was interesting, was the solicitor for the other side presented me with a Skeleton Argument 5 mins before we were to see the Judge which included this case. Neither she nor the Judge knew that it was going to Appeal and if I hadn't seen this very thread 2 days ago, I would have lost my case as the Judge's first question to the solicitor was along the lines of 'isn't there some case law that makes this default notice issue a de minimis issue?'. So from the very off, my fate had been decided and if it wasn't for this forum sharing what it knows, I would be sitting here with a CCJ and a big debt to repay. As it is, at least I have a lifeline.

 

Although the Judge went onto say that even if I won this time around, all they would do is reissue another DN as the debt remains. He would not have it that the agreement has been terminated (via contract law) but maintained I would still owe the $. Frightening!

 

So, CAGgers, keep up the good work!

 

Did you have to provide detailed info about the appeal? As far as I can make out it is still pending , but there isnt much info about it.

[Chipmeister]

In the worst case scenario, if the Brandon appeal falls flat, what happens to other cases that are stayed on it? Form example, my default notices are defective but my application forms / agreements also form a large part of my defence.

 

My concern is if Brandon does go the wrong way, will the claimants rely on that solely if a case has been stayed on that point, or will you still be able to bring the defective agreements and other claims to the table?

[Chipmeister]

Any thoughts on the above anyone, please?

[creditcardmug]

That was a biased judge

Have you argued other points in your defence, or does it all hinge on Brandon, if you have then you haven't lost

[Chipmeister]

Certainly in my case I have other things to rely on other than Brandon.

[GeoffreyAlby]

Also mentioned to the DJ today that the amex case had application to appeal, he asked me how I knew, I told him I had read it on a consumer help forum...he asked the solicitor if she knew about this...she said she neither admits nor denies.(I had already informed her)

He asked me when it was going to be heard..I had to tell him that as far as I was aware it was pending permission to.

If I had more info he would have stayed it I think.

 

Is there anyway of confirming that the Amex v Brandon case is pending appeal?

[Series3]

would be good if there was..at least it would stop them using it..

[creditcardmug]

Just to add to this, my case has also been adjourned pending the outcome of this Appeal.

 

What was interesting, was the solicitor for the other side presented me with a Skeleton Argument 5 mins before we were to see the Judge which included this case. Neither she nor the Judge knew that it was going to Appeal and if I hadn't seen this very thread 2 days ago, I would have lost my case as the Judge's first question to the solicitor was along the lines of 'isn't there some case law that makes this default notice issue a de minimis issue?'. So from the very off, my fate had been decided and if it wasn't for this forum sharing what it knows, I would be sitting here with a CCJ and a big debt to repay. As it is, at least I have a lifeline.

 

Although the Judge went onto say that even if I won this time around, all they would do is reissue another DN as the debt remains. He would not have it that the agreement has been terminated (via contract law) but maintained I would still owe the $. Frightening!

 

So, CAGgers, keep up the good work!

 

Can anyone tell me where in the CCA 1974 it says that another DN can be issued on an account which has been terminated, (i.e. no longer exists!!)

[emandcole]

Don't think it says that specifically, however common sense would support the notion that once a Default has been issued and the account terminated on the creditor has forfeited the right to issue another DN.

 

To suggest that the creditor has the right to issue DN's repeatedly, even when there is no longer any agreement is absurd. If that is the case what's to stop a creditor issuing a DN on an account that was closed 20 years ago? Madness. A judge who adopts this thinking is missing the point and purpose of the DN, it can only be re-issued, even hundreds of times if the agreement is still live.

 

Anyone know if this Amex v Brandon hoo ha will be retrospective if permission to appeal is denied or the DN is undermined? Can't see how it would be right to make such a decision apply to defaults that were issued before this judge decided to ignore parliamentary will and make his banking buddies happy.

[GeoffreyAlby]

Don't think it says that specifically, however common sense would support the notion that once a Default has been issued and the account terminated on the creditor has forfeited the right to issue another DN.

 

To suggest that the creditor has the right to issue DN's repeatedly, even when there is no longer any agreement is absurd. If that is the case what's to stop a creditor issuing a DN on an account that was closed 20 years ago? Madness. A judge who adopts this thinking is missing the point and purpose of the DN, it can only be re-issued, even hundreds of times if the agreement is still live.

 

Anyone know if this Amex v Brandon hoo ha will be retrospective if permission to appeal is denied or the DN is undermined? Can't see how it would be right to make such a decision apply to defaults that were issued before this judge decided to ignore parliamentary will and make his banking buddies happy.

 

Thats a really interesting point, can case law regarding a DN be applied to a DN that was issued prior to the judgment.

[pedross]

From the little I have seen about the Brandon case it seems to refer to hire purchase and conditional sale agreements and relates to Section 98 and the judges references were regarding that section. These are further restrictions within the 1974 Act relating to those type of agreements.

 

I think there was some confusion over the relevant section which of course should be S87/88 in the case of running account credit (credit cards). The judges comments were based on the fact that a DN is not required for running account credit under S98 which is of course correct as it just applies to further restrictions on hire purchase agreements.

 

So regardless of the outcome of Brandon or if any cases are heard and not adjourned make sure you understand the whole section from S87 onwards.

 

This is my understanding and I welcome any comments. A full copy of the judgement would be useful if any one has it.

 

Pedross

[GeoffreyAlby]

From the little I have seen about the Brandon case it seems to refer to hire purchase and conditional sale agreements and relates to Section 98 and the judges references were regarding that section. These are further restrictions within the 1974 Act relating to those type of agreements.

 

I think there was some confusion over the relevant section which of course should be S87/88 in the case of running account credit (credit cards). The judges comments were based on the fact that a DN is not required for running account credit under S98 which is of course correct as it just applies to further restrictions on hire purchase agreements.

 

So regardless of the outcome of Brandon or if any cases are heard and not adjourned make sure you understand the whole section from S87 onwards.

 

This is my understanding and I welcome any comments. A full copy of the judgement would be useful if any one has it.

 

Pedross

 

Heres the judgement ....

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=21274&d=1282863937

[pedross]

Well done GA, I have repped you.

 

The whole judgement is so wrong it brings forward the question when will judges with blinkers and pre-determined opinions be stopped from hearing cases that they do not understand.

 

It is pretty obvious that his mind was made up in the first paragraph. MR B did not state that he did not owe the money. We need to take note of that comment, the fact is we are trying to be as honest as we can. Do we owe the money? Surely thats why we are challenging it, because if they are not legally entitled to it then I don't see how we have a valid debt. I could go on for ages but the bottom line is we need a better answer.

 

Next point. The DN may not have allowed enough days in law, but because nothing happened in those days or for days after then it did not matter. Legally inapt. Just hope if ever you are drunk out of your head and drive 5 miles home and just before you get home you get stopped and breathalised and are 3 times over the limit, that you get this judge in court. You can say 'I know it is against the law to drink and drive but I did not have an accident so it does not matter, can you find me not guilty? The law is the law, you cannot just keep changing the rules.

 

There are so many flaws in the judgement, as far as CAG posters are concerned I do not have time to point them all out, but here's another one.

 

The judgement applies to cases where no enforcement action is taken. But what about cases where the claimant has taken action and the DN states a termination date. If the DN is defective the termination does not comply with S87/88 and the creditor is not entitled to 'sums not yet due' (HFC etc.).

 

Next the comments about the claimant having the contractual right to terminate without notice cannot possibly overide a termination on a defaulted agreement. Once a DN is issued then S87/88 must be the important section because that is the route that the claimant has followed.

 

The fact that the claimant does not enforce the debt for months or years after the date given on the DN cannot possibly mean that the defendant was given sufficient time to remedy the default. The claimant was given, in this case, 14 days. There is no doubt about this as it was stated in the DN. This does not comply with legislation full stop. As soon as the claimant enforced the debt it should have sealed their fate.

 

However, in my opinion, the judgement highlights another point I have tried to bring to peoples attention. Do not use weak arguments just to pad up the defence. So they did not include certain documents with the claim. Were they really wrong to notify credit reference agencies about the default.

 

The main defence appears to be the defective DN and the claimants rights afterwards. Therefore, Brandon accepted that he had defaulted and the defence is that Amex cannot claim sums not yet due. But he had defaulted so Amex are obliged to notify the credit reference agencies. If he had won the case he could ask them to remove it on the basis the notice was defective, so why argue it first.

 

Thats off the top of my head. Thats my opinion any others?

 

Pedross

[barrowby]

Hi,

 

Not wanting to Hi-Jack your thread MBNAed!....merely try to canvas some of the knowledge that seems to be around this thread.

 

How is a defective DN (i.e. days short to comply) coupled with the fact that the DN was registered on credit file (3 companies) before the date of the DN place a defence?

 

As you might have guessed this is a position that i find myself in (along with a non complient agreement)

 

Thanks in advance

[emandcole]

If you can show the DN was registered with the CRA's before the date given (the DN should give a date to provide remedy before) then you could evidence the claim that the creditor did not give you the required time to provide payment and restore the relationship. It would constitute an unlawful repudiation of contract as they did not extend the rights available to you.

 

I presume you have a copy of your credit file showing it was registered before the date given on the DN?

[Chipmeister]

If you can show the DN was registered with the CRA's before the date given (the DN should give a date to provide remedy before) then you could evidence the claim that the creditor did not give you the required time to provide payment and restore the relationship. It would constitute an unlawful repudiation of contract as they did not extend the rights available to you.

 

I presume you have a copy of your credit file showing it was registered before the date given on the DN?

 

If a default has been registered on the credit file before the date given in the DN, should one be writing to MBNA accepting their unlawful repudiation of contract?

[Chipmeister]

Any thoughts on this please folks?

[Chipmeister]

bump!

[barrowby]

Bump!....for Chipmeisters sake....and mine!

 

I have the same issue...hope someone on here can help.

 

Thanks