Virgin/MBNA passed to Optima - claim forms received - help! ***ICO dismissed****

[gem77]

Hi all,

I wonder if anyone can give me some advice please. I have a virgin Credit card (amongst others) over the last year our circumstances have changed and we were unable to pay the minimum payments so I have set up a DMP. A few creditors have accepted and some I am having a fight with. MBNA had accepted my reduced payment I have the letter saying so, this was in June and they suspended all interest and charges however today I have recieved a letter from Optima Legal stating they have been instructed by MBNA to secure payment from me of the full balance or they will start legal proceedings.

 

I have paid each month the amount I agreed with them.

 

Can they do this as they have accepted in writing my reduced payment. Should I write to Optima enclosing a copy of the letter?

Any advice would be much appreciated.

Many thanks

Gem77

[gem77]

Bump can anyone please advise me?

[dx100uk]

i would not worry about it at all.

 

its quite usual for this to happen.

 

ignore them

 

dx

[gem77]

I sent Optima a letter stating that MBNA had accepted my payment plan and I have kept up payments with them however I have now recieved a court claim from them. Now I am in a real panic and havent a clue what to do next. Could anyone one please advise me?

 

I have read a few posts but there are so many and are a bit confusing. Please help!

 

Gem

[dx100uk]

that a bit naughty

 

did you get all the usual run-up like default notice etc etc

typically if the acount is still owned by the OC

they are the only ones that can take you to court

 

i'l move your thread to the legal forum and add claim form received to the title

 

dx

site team

[gem77]

Thanx DX. A quick run down is that I wrote to MBNA stating i could only afford £18 a month they replied saying they understand and would accept this (although they stated they would accept £1 each month) but it is not enough to stop a DN and I would recieve the notices they are legally obiliged to send but just keep paying the "£1" each month. I wrote back thanking them and pointing out their error that I was paying £18 not £1. then recieved letter which im pretty sure was the DN, Then the Optima letter asking for the full amount or court action would be taken. I wrote back stating that MBNA had accepted my reduced payments and I have this in writing. Next I recieve the court order.

[gem77]

Can anyone please give me some guidance?

I have taken a look at the DN and I think it is faulty. It is dated the 9th August and gives me untill the 26th. It was posted in the usual uk mail envelope. Am I right in thinking thats a few days short? Could this be one of the routes to take with a defense?

[AndyOrch]

Hi Gem

 

When you receive a summons(CCBC) you have 33 days in total to complete the process.5 days deemed served so leaves 28 14 to AoS and a further 14 to submit a defence should you wish to defend the claim.

If you type out the the Particulars less any identifiable details

You have retained their response to accept your payment plan.

Have you had a Default Notice if so post up.

Who are the Sols acting?

Roughly the amount involved.

Have you requested a copy of this agreement?

 

 

Regards

 

Andy

[gem77]

Hi Andy,

 

The Solicitor is optima. Yes I recieved a default notice will post it up. As yet I havent requested a copy of the agreement but am going to get right on it.

 

The particulars of claim are as follows:

 

1. The claimants claim is in respect of a credit agreement regulated by the consumer credit act 1974, made between the claimant and the defendant, where by the claimant provided the defendant with a credit card and in return the defendant agreed to pay at least the minimum monthly payment requested in each statement.

2. The defendant failed to make the minimum payments, as required, and is therefore in breach of the said agreement.

3. A default notice was served on the defendant, which expired on 26/08/2010 and the defendant has failed to comply with he terms therein. A further demand for payment has been made, however the sum due remains outstanding. The Claimants claim is therefore the principal sum inclusive of accrued interest which as at stands at 5173.30 plus costs.

4. The claiment has complied with sections III and IV of the practice direction on pre action conduct.

 

 

It was a real knock in the teeth to get this after they seemed to be understanding and willing to help. I am just hoping the fact that they accepted in writing that I pay £1 a month whereby I was actually paying £18 might just go in my favour that they are being unreasonable or am i just clutching at straws?

 

Many thanks For all you help.

[gem77]

[dx100uk]

then that will be invalid simply by the postage days.

 

UK mail take upto 5 working days to get into the royal mail system

as its business 2nd class mail [denoted by the S on the envelope]

that will take upto a further 4 working days to arrive

 

dx

[Old Cogger]

then that will be invalid simply by the postage days.

 

UK mail take upto 5 working days to get into the royal mail system

as its business 2nd class mail [denoted by the S on the envelope]

that will take upto a further 4 working days to arrive

 

dx

 

Letter dtd Mon 9/8/2010 4 working days as per Bickford Smith (courts), for 2nd class UK Mail; gives you 14 clear days to remedy i.e. 27/8/2010. To use proof to say actually posted on 9/8/2010, well who knows as not needed to be recorded it seems, a judge would probably ignore as people have reported on occasions 1-2 out. see what others say always?

[AndyOrch]

Im afraid I have to agree with MIke DX

 

Gem " The claiment has complied with sections III and IV of the practice direction on pre action conduct." did they comply?

 

Regards

 

Andy

[dx100uk]

there are other threads or instances of this i'm sure

 

someone found out before that the 'UK Mail' provider used by MBNA state the 'S' on their envelopes means 2nd class business post

they also state it can take upto 5 days for their mail to enter the 'last step' which is delivery to door by royal mail.

 

this might all be on their website

 

its certainly on a recent MBNA thread.

 

now 'if' this can be used alone to invalidate a DN is another matter.

 

dx

[AndyOrch]

You cant go into battle with these guys basing a defence on whether it was received in time or not.The DN is exemplary, format and content no question.

A DJ 9/10 will not base a decision on delivery, the fact remains you received it.Irrespective whether it was short by 1 or 2 day why didnt you settle the breach in the remaining 11/12 days?

It really is a weak argument and one I would never advocate as the basis of any defence.One needs something a tad more tangible to argue.

 

Did they comply with PAP, this was amended 6th April 2009 and is quite now stringent on what the Claimant must do before litigation is commenced in any claim.

 

Lets wait for Gem to reply and get to the basis of what we can base a defence on.

 

Regards

 

Andy

[gem77]

what are sections III and IV of the practice. where would I find this out? I have read through lots of threads and they get quite confusing.

[gem77]

sorry Andy what is PAP? sorry if im seem a bit thick my head is buzzing at the mo

Would it help if i posted on here all the correspondance i have been sent?

[AndyOrch]

SECTION III – THE PRINCIPLES GOVERNING THE CONDUCT OF THE PARTIES IN CASES NOT SUBJECT TO A PRE-ACTION PROTOCOL

 

6. Overview of Principles

 

6.1

 

The principles that should govern the conduct of the parties are that, unless the circumstances make it inappropriate, before starting proceedings the parties should –

(1) exchange sufficient information about the matter to allow them to understand each other's position and make informed decisions about settlement and how to proceed;

 

(2) make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR in order to do so.

 

 

6.2

 

The parties should act in a reasonable and proportionate manner in all dealings with one another. In particular, the costs incurred in complying should be proportionate to the complexity of the matter and any money at stake. The parties must not use this Practice Direction as a tactical device to secure an unfair advantage for one party or to generate unnecessary costs.

 

 

SECTION IV – REQUIREMENTS THAT APPLY IN ALL CASES

 

9. Specific Provisions

 

9.1

 

The following requirements (including Annex C) apply in all cases except where a relevant pre-action protocol contains its own provisions about the topic.

[AndyOrch]

Disclosure

 

9.2

 

Documents provided by one party to another in the course of complying with this Practice Direction or any relevant pre-action protocol must not be used for any purpose other than resolving the matter, unless the disclosing party agrees in writing.

 

Information about funding arrangements

 

9.3

 

Where a party enters into a funding arrangement within the meaning of rule 43.2(1)(k), that party must inform the other parties about this arrangement as soon as possible and in any event either within 7 days of entering into the funding arrangement concerned or, where a claimant enters into a funding arrangement before sending a letter before claim, in the letter before claim.

(CPR rule 44.3B(1)© provides that a party may not recover certain additional costs where information about a funding arrangement was not provided.)

 

 

Experts

 

9.4

 

Where the evidence of an expert is necessary the parties should consider how best to minimise expense. Guidance on instructing experts can be found in Annex C.

 

 

Limitation Periods

 

9.5

 

There are statutory time limits for starting proceedings (‘the limitation period’). If a claimant starts a claim after the limitation period applicable to that type of claim has expired the defendant will be entitled to use that as a defence to the claim.

 

9.6

 

In certain instances compliance may not be possible before the expiry of the limitation period. If, for any reason, proceedings are started before the parties have complied, they should seek to agree to apply to the court for an order to stay (i.e. suspend) the proceedings while the parties take steps to comply.

 

 

Notifying the court

 

9.7

 

Where proceedings are started the claimant should state in the claim form or the particulars of claim whether they have complied with Sections III and IV of this Practice Direction or any relevant protocol.

 

 

Transitional Provision

 

9.8

 

The amendments to paragraph 9.3 do not apply to a funding arrangement entered into before the 1st October 2009 and paragraph 9.3 in force immediately before that date will continue to apply to that funding arrangement as if paragraph 9.3 had not been amended.

[AndyOrch]

Put simply Gem did the Sols comply with the above and give you necessary allowance to come to or put your side before litigation was commenced?

 

 

 

Andy

[gem77]

OK thats confused me!!!! All I have had from MBNA is 2 letters a default notice then a solicitor letter. The first letter was agreeing to accept £1 a month and freeze all charges and interest although I was paying £18 and that is how much I have always stated.

[AndyOrch]

Ok Gem can you post up the Sols letter less any personal identifiable details.

 

 

Andy

[gem77]

they gave me 14 days from the date of the letter to hear from me. I wrote to them stating that MBNA had accepted my reduced payment and at present that is all I can afford as they could see from my Income and expenditure note that I sent them.

[gem77]

will post it up now for you.

[gem77]

Oh NO just relised I left a reference number on Page 2. How do I delete it?