Link mbna claim! ***settled***

[gforce2k]

Hi guys,

I need some urgent guidance if poss please.

My OH received a Claim Form from LINK Financial 2nd week of Feb (Issued on the 9th) for a £12k MBNA Card debt.

I have Acknowledged online as Defending but I'm coming up to the 28 days in just over a week and am not sure what defence to put in or if I should hit them with any requests/letters etc.

 

Having read up on the site I'm still unsure what may be relevant, every thread I have read is always subtly different, so apologies for asking the same questions everyone else is - I just want to be sure.

 

Is the agreement unenforceable?

- Before the debt was assigned to Link I CCA'd MBNA (2yrs ago) and they sent us a barely legible photocopy copy of a signed application form from 1999. Link printed the two sides of a min application form on both sides of an A4 sheet in an attempt to imitate a real application form and 'connect' the two parts. However the terms are still a separate photocopy image with much of the fine text faint/illegible and no guarantee any physical original remains.

- (btw the PPI box is ticked NO but was charged anyway for a few months in 99 - worth mentioning?)

 

CPR/extension?

If the best option is to issue a CPR 31.14 data request Link would get 7 days + 2 days to be answer so I need to send the letter tomorrow/Saturday latest or the 28 days will be up before the CPR deadline.

Should I send CPR 31.14 (?) or request an extension?? have I run out of time?

 

Can anyone help please??

I can scan docs tonight or type in more info.

 

Thanks.

GF2k

Edited March 4, 2011 by gforce2k

[gforce2k]

Hi, really hoping someone out there today that can help me with the next step on this.

 

I've attached scans of the claim sheet and the agreement they sent me (enlarged).

 

**deleted at request of OP**

 

Could someone take a look and let me know what letter(s) I should be sending to LINK / MBNA now (CPR 31.14/extension etc.) ??

 

Thx GF

Edited March 7, 2011 by cerberusalert

[coledog]

Hi

 

Only just seen this. You should have sent a CPR 31 request before this and I cannot read the POC as it is so small - can you post it using the 'insert inline' option or as a PDF file? Do not know which documents it mentions.

 

Hope you have seen this recent Link court case

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?296878-High-Court-Judge-says-MBNA-Link-Financial-quot-tortured-quot-a-customer&p=3323729#post3323729

 

Also some useful threads on CPR

 

CPR

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

http://www.consumeractiongroup.co.uk/forum/showthread.php?283443-Embarrased-Defences-and-the-problems-with-them.&highlight=

[gforce2k]

Hi Coledog,

thanks for the reply.

don't know why the images are scanning so small, trying again now.

In the meantime the POCs mention these documents:

"payable under an agreement referenced XXXXXXXXXXXXXXXX and opened effective XX/XX/1999"

"by XX/XX/2009 a default was recorded."'

"by an agreement in writing the debt has been legally assigned to the Claimant effective XX/XX/2009 and made regular upon the Claimant serving a Notice of Assignment upon the Defendant shortly thereafter."

Am I too late to CPR or can I rescue with a request for time?

Thanks.

GF2k

[cerberusalert]

If you upload them to a hosting site such as tinypic and then copy & paste the urls back here we'll see them full size.

[gforce2k]

Thanks for everything CA, will try that and repost links.

[gforce2k]

Ok,

finally got there with photobucket:

http://i1238.photobucket.com/albums/ff494/gforce2k1/CLAIM-LINK-MBNA-20110209-SAFE.jpg

http://i1238.photobucket.com/albums/ff494/gforce2k1/CLAIM-LINKFIN-MBNARES-APPLFORM-FRONT-SAFE.jpg

http://i1238.photobucket.com/albums/ff494/gforce2k1/CLAIM-LINKFIN-MBNARES-APPLFORM-BACK-SAFE.jpg

 

Could anyone let me know if CPR 31 is the right course now/still possible i.e. with an extension? if so how to go about getting an extension etc.?

Thanks.

GF2k

[gforce2k]

Hi guys,

I've been busy reading up and checking back on letters and have found that the DN letters didn't allow 14 days from receipt.

 

There is no DN from Link, just 2 from MBNA on the same day (letters slighlty different through).

These two were both sent on 8th June 09, received on the 13th and gave a deadline of 25th June so not 14 days.

I know when it was received because I always write down the letter's date and received date on the top right corner of each letter before filing.

 

See below.

 

 

 

Also could someone tell me if the NOA is correct?

 

I've checked with the court and deadline for defence is monday 14th.

Advice seems to be against an embarrassed defence which having left it too late(?) to SAR or CPR 31.14 leaves me with having to request an extension via N244 whilst I send those letters out.

 

Can anyone let me know if they think this is the right course of action please?

Regards,

GF2k

MBNARES-DN-1.pdf

MBNARES-NOA-1.pdf

MBNARES-DN-2.pdf

[gforce2k]

Hi again,

Running very short on time now so desperately hoping this timeline will help to clarify/weed out any mistakes/non-compliance/defence arguments etc. (docs inserted below are underlined and some possible areas of interest are in bold italics):

 

 

MBNA

1999

- Account Opened feb 09

 

99-2008

- ok up to mid 08 then credit crunch, late payments, interest creeping up, charges etc.

- last payment Aug 08

- Despite attempts to negotiate no acceptance of situation by MBNA or willingness to negotiate.

- (by this time min £250 interest pmth min payment £430+, then £1000+ etc.)

- Countless phone calls ensued, threats upsetting my OH so make agreement to pay c£95pmth, mbna refuse to stop interest though

 

2009

- payments made in dec & jan but for each £95 paid 2x£12 fees and £215 interest!?

- mbna still refused to stop interest / charges so we told them impossible to continue

09/02/09 - Posted CCA request & Telephone Harassment letters on 09/02/99

26/03/09 Received:

- letter dated 23/03/09 in response to CCA enclosing 'original and current agreements', ('original' was a tiny copy of an application form) in the letter admitting 'the copy of the original agreement is not very clear' but stating that it has 'all the prescribed terms' etc.

- letter dated 19/03/09 saying here's a copy of your 'current' terms (4 sheets of unsigned terms)

- letter dated 23/03/09 in response to telephone harassment letter explaining account closed, sorry we can't stop calling you etc.

02/04/09 - received general threat letter: court action, DCA etc.

22/04/09 - received 'notice of potential court order to your property'

08/05/09 - received pre-default warning letter: balance sold to 3rd party DCA etc.

12/05/09 - received threat to seek order to repay debt from equity from sale or re-mortgage of property

26/05/09 - received last statement

13/06/09 - received default notice dated 08/06/09, remedy deadline 25/06/09

13/06/09 - received default notice dated 08/06/09, remedy deadline 25/06/09 "we are aware that you are insolvent"...etc.

(Continuous calls throughout this preceding period)

 

LINK

03/07/09 - received 1st Notice of Assignment letter 'introducing' Link Financial as owning 'the balance' as of 19/02/10

27/07/09 - received letter stating "you recently received a letter from us regarding your MBNA ... account. This letter was a legal requirement under Section 136 of the Law of Property Act 1925" - only received the NOA letter before this one

02/11/09 - received 2nd NOA letter, exact same text

14/11/09 - received "Investigation of Assets letter", stating their office had made "an enquiry under the Land Registration Act 2002" proving we "have a significant asset, one that can be used to enforce a CCJ by way of a Final Charging Order" etc...

 

2010

28/07/10 - statement of Account

01/12/10 - letter "before action"

 

2011

31/01/11 - statement of account

09/02/11 - CLAIM Form

14/02/11 - ***DEADLINE FOR DEFENCE***

 

I realise I should have SAR / CPR'd straight away but for various reasons wasn't on the ball.

I'm now facing a defence deadline of Monday so really desperate for help.

 

I'd like to request the original agreement from Link but don't know best way to do it in time or in conjunction with a request for extension.

Also is it worth making a point about the balance being assigned to LINK (19/06/09), 6 days before the MBNA DN remedy deadline (25/02/09)?

ANY clarification would be much appreciated!

 

Here are the underlined docs in chronological order, apologies for repetition of some already posted.

 

09/02/09 - SENT THESE RECORDED DELIVERY & HAVE RECEIPT

 

26/03/09 - RECEIVED THESE

+4 SHEETS OF UNSIGNED TERMS & SOME STATEMENTS

 

13/06/09 - RECEIVED THESE ON SAME DAY

 

03/07/09 - RECEIVED THIS NOA, states MBNA Assigned Bal to LINK on 19/02/09 - 6 Days BEFORE Remedy deadline on DNs???

 

09/02/11 - RECEIVED CLAIM

[citizenB]

Points I have noticed that could be useful.

 

1: the Default notice.. is rather odd.. I wonder if anyone can comment on it.

 

[ATTACH=CONFIG]25652[/ATTACH]

 

Also the NOA, according to Link, it was assigned on 19th June 2009, but that was prior to the remedy date on the Default Notice.

 

You might find the Harrison - v - Link judgment of interest. Both the Notice of assignment and the Default notice were brought to the attention of the Judge in this case.

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

 

Please remember that in this instance, Harrison was the Claimant

[gforce2k]

Thanks CitizenB,

I've looked over the judgment and there seems to be some mileage with the DN dates conflicting with the assignment date, the harassment calls and lack of terms being sent with the application form etc.

My problem is how to incorporate all this into a meaningful & succinct defence document and what else i should be faxing/posting right now?

 

I don't want to wait until Monday and just rely on a hurried defence, will the court grant an extension at this late stage? if so what's the best method?

General opinion seems to be against an embarrassed defence so I'm floundering a little.

 

I'm kicking myseld that I didn't CPR or SAR stratight away so I'm hoping there is some way I can still do this and ask for the extension?

Should I still issue a standard template SAR to MBNA & CPR 31.14 request to Link and separately try to get an extension somehow?

Is there a way to request an extension and at the same time issue SAR/CPR requests before Monday?

Is there a way to put in some kind of a 'holding defence' whilst CPR/SAR goes out?

 

Would this be best by N244 or is there a template letter or do I need to call Link first to request an extension & then write a CPR/extension request letter?

With defence due Monday I need to fax/post something today ideally.

 

Should I fax an N244 it will go to a DJ and effectively pull the claim file whilst he decides (gives a couple more days)?...

Link will probably put in for a summary judgment on Monday so I need to file something before to hold/extend whilst cpr/sar requests go through OR put in a complete defence which I feel unprepared for.

 

Can you or any other CAGers think of other threads/judgments that may have this info or particular CAG people I should approach?

Best wishes

GF2k

[DonkeyB]

Have a look at the Harrison v Link Financial judgment on this page (PDF). The judge mentions at some point the issue of Link buying the account while the DN was supposedly still active, but he accords little relevance to it.

 

Also, if the DN was bad the account has not, technically, been terminated! This is what this case law says, and enforcement cannot be brought on the back of a bad DN.

 

http://www.consumeractiongroup.co.uk/forum/content.php?707-MBNA-and-Link-Financial-tortured-their-customer!

[DonkeyB]

Sorry, I know it was already posted... wanted to draw your attention to the fact that the judge said there can be no enforcement of the back of an improper DN...

[gforce2k]

thanks DB,

Sorry to be thick but is the DN I have posted definitely provable as bad?

because of the dates or is there something else I should mention?

 

thanks,

GF2k

[Cadbury1879]

Hi file a defense, if any doubt.I filed this on MCOL with things added in to do with my case.

I dispute the full amount claimed by the claimant and I do not recognise the Claimant's Claim in any way for the following reasons.

The Claimant states that the claim relates to a credit agreement entered into by the parties, but no copy of the contract or documents alleged to constitute the agreement has been attached or served with the particulars of claim, therefore I have no knowledge of the agreement mentioned by the claimant in the particulars of claim. This is in breach of the requirements of Practice Direction 16 section 7.3. "Where a claim is based upon a written agreement a copy of the contract or documents constituting the agreement should be attached or served with the particulars of claim" .Additionally, by not attaching or serving a copy of the alleged agreement the claimant has failed to provide me with sufficient information to deal with the claim. This is in breach of Practice Direction - Protocols section 3.1(a) "not having provided sufficient information to the defendant".

 

My case was very similar to yours, never did go to court, as I excepted Links Tomlin Ordert offer.

I'm not suggesting this is the right route, all depends on individual circumstances. I would however suggest that filing a defense of some sort, is better than the potential of default judgement, or other similar scenarios.

 

All the best

Cadbury

[gforce2k]

Thanks Cadbury1879, if I don't fax an N244/anything tomorrow it will have to be some kind of embarrassed defence i imagine.

can anyone tell me if an extension is still possible?

[citizenB]

TBH, I really dont know where you stand. It has been advised that an embarrassed defence is of no use. I will try and find some help for you.

[gforce2k]

Thanks CB,

 

if i can somehow get an extension allowing me to cpr & sar that would be my preference.

if i put an n244 in today by fax that may work but only if the right wording/valid reasons for extension - if anyone can advise that i can do that straight away.

thanks.

gf2k

[Cadbury1879]

Thanks Cadbury1879, if I don't fax an N244/anything tomorrow it will have to be some kind of embarrassed defence i imagine.

can anyone tell me if an extension is still possible?

 

Hi gf

IMO only ,

I have been through a similar situation,

I would file a defense listing everthing you have recorded on this thread.In plain English mention the dodgy DN etc etc

The time clock is ticking, send a sar to mbna plus a CPR to link, if you have not already done so.

Relying on link or the courts for an extension can result in the ccj being granted,if not carefull.Lots of folks have trusted extentions and find it hasn't happened.

Once the defence has been submitted the balls in there court.Again I stress I am no expert, however in my case it resulted IMO a " score draw" with no Ccj,have a TL

however.

It's very late in the day, so I would submit a defense now!!

 

Cad

[caro]

I agree with cadbury. Just concentrate all your efforts on your defence.

[pt2537]

if you are going to defend and file a defence, you really need to plead everything properly as if you do not it can come back and bite you when you least expect it.

[gforce2k]

hi pt2537,

i submitted a defence online on monday but i thought i had to rush it when i found out that instead of having the whole day i had to do it by 4pm so i found an embarrassed defence template from a next case and changed that quickly.

unfortunately the online defence box only allows 122 lines so i spent too much time moving text around and reducing the text to do a proper job.

in short i'm not happy with the defence and don't feel it covers everything so any advice as to an additional letter to the court to rectify this would be appreciated.

as it is i'm hoping link will have to submit the documents requested in the defence so i can then point out the DN/assignment/agreement legibility discrepencies but i don't know if i should also SAR mbna / cpr 31.14/15 in case.

 

i'll scan and post up the defence.

thanks,

gf2k

[gforce2k]

Aaaargh!

Just opened the pdf file I submitted for my OH to copy and paste the defence text in this post and was shocked to find a MASSIVE MISTAKE!!!

The defence says NEXT RETAIL

I had originally changed it to LINK and MBNA!, all i can think of is that it happened when shorten the text again for the umpteenth time I re-copied from the source document (an old Next defence) and repasted it without changing the names.

 

HELP! what do i do? send in a letter begging the court's forgiveness, pressed the wrong button etc?

 

This is what was submitted (can't believe i didn't notice it until now!)

------------------------------------------------------------------------------------------------

1. I XXXX XXXX make the following statement as my defence to the claim made by NEXT RETAIL LIMITED

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims are embarrassing to the defendant as the claimant's statement of case is insufficiently

particularised and does not comply with CPR part 16. In addition the following documents that the claimant cites in the Particulars of Claim have not been served attached to the claim form:

a) A copy of the purported written agreement.

b) A copy of the purported Default Notice.

c) A copy of the purported Notice of Assignment.

 

5. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet

 

Credit account

6. The account referred to relates originally to a NEXT catalogue account and furthermore is classed as running-account credit as defined within section 10 (1)(a) Consumer Credit act 1974 which states inter alia

(a) running-account credit is a facility under a personal credit agreement whereby the debtor is enabled to receive from time to time (whether in his own person, or by another person) from the creditor or a third party cash, goods and services (or any of them) to an amount or value such that, taking into account payments made by or to the credit of the debtor, the credit limit (if any) is not at any time exceeded, and

 

7. Therefore, based upon the claimant's particulars of claim, the claimant would appear to be trying to circumvent the regulation of the Consumer Credit Act 1974 under which this account type is governed.

 

8. The Consumer Credit Act 1974 requires that where credit is provided by a creditor to a debtor, there must be an agreement between parties containing the prescribed terms as set out in section 60(1) of the consumer credit act 1974 and signed in the prescribed manner as laid out in section 61(1) (a) Consumer credit act 1974

 

9. Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court

 

10. The Claimant is therefore put to strict proof that such agreement exists

Consequences of Non Disclosure of the agreement

 

11. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil

Procedure Rules I have not yet had the opportunity to assess if the documentation the claimant would need to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point

11 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

13. With regards to the Authority cited in point 12, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

The default notice

14. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist, there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1)conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

 

15. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

16. Notwithstanding point 15, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the

Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

17. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management

Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Conclusion

18. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's

statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

19. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

 

20. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information

required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to

investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I

believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act.

The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided.

------------------------------------------------------------------------------------------------

 

What a muppet! please tell me I haven't completely screwed this up irreparably!

[caro]

You need to apply to amend your defence or it is almost sure to be struck out as embarassed, and the claimant get judgment. You'll need to use an N244 and pay a fee.

 

I would urge you not to put in an embarassed defence or to use the defence above. It was written some time ago, and there's been quite a lot of case law since which means you are unlikely to win with it IMHO. I know that until recently it was a sticky in the legal issues forum, but it was unstuck a couple of days ago for the reasons I've already given.

 

You must not delay thought because in the time it takes you to apply to amend your defence, the claimant could apply to have it struck out and get judgment by default.

[gforce2k]

thanks caro,

so what wording should i use in the n244? is there a template or applicable thread?

should i also request any documentation or an extension?

should i cpr / sar even at this late stage?