Old MBNA Card + LINK + County Court Action - Your advise please ** Set a Side/now defence**

[AndyOrch]

Hi HWTH

 

Responding to your PM.

 

Strange that the DJ requested a true copy of the application rather than the agreement, application means nothing is not enforcible without the valid credit consumer agreement and its prescribed terms.

Where are all the statements he ordered them to disclose re the conduct default, and termination and calculations of the amount claimed?

 

Regards

 

Andy

[highwaytohell]

Hi Andy,

Sorry for the late response to the above, damm scanner at home went pear shapped so had to wait till I got in the office.

 

Ok the only statement they sent is the credit card statement (attached) no other statement.

 

I have marked what I THINK I can claim back under the PPI thing, although I know its not PPI.

 

So....... In your opinion, how should I proceed with defence.

 

I think the Terms and Conditions are totally a waste of time as you cannot "Easily" read anything, in fact most pages you cannot read at all.

 

Many thanks

 

HTH

CCStatemement.pdf

[AndyOrch]

DEFENCE:

 

1. Paragraph 1 is admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with MBNA International Bank Ltd (now MBNA Europe Bank limited)

2. Paragraph 1 (Viii) is denied with regards to the Claimant issuing a demand dated 15th April 2011.

3. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; Original debt amount £7060.80 MBNA, Claimants amount original Particulars of Claim dated 27th September 2011 £7834.08 and amended Particulars of Claim dated 19th July 2012, £7965.08.It is averred that the total claimed contains unfair charges and interest above the recommended guidelines of the OFT findings are unlawful at common law and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

6. On the alternative, the Agreement referred to in paragraph 1 was improperly executed contrary to Section 61(1)(a) of the Consumer Credit Act 1974 ('the Act').

 

(a) The only document which was signed by the Defendant in or around the date that the Claimant alleges that the Defendant entered into an Agreement with was an Application with MBNA International Bank Ltd (now MBNA Europe Bank limited) ('the Creditor').

(b) The Agreement mentioned in paragraph (a) of these Particulars, stated that the Total debt outstanding was £7834.08, consisting of a premium for a policy of Payment Protection Insurance ('the PPI').

© The Defendant was required to purchase the PPI as a condition of the Creditor entering into the Agreement: on or around 21st January 2001.

(d) The said premium for the PPI was an item entering into the total charge for credit as determined in accordance with the Consumer Credit (Total Charge for Credit) Regulations 1980, and was therefore, by reason of Section 9(4) of the Act, not to be treated as part of the credit even though time was to be allowed to its payment.

 

7. The Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that it was improperly executed as set out above and by reason of Section 65(1) of the Act.The Application is barley legible.

 

8. Further, by reason of the fact that there is no document which has been signed by the Defendant containing a correct statement of the amount of the credit under the Agreement, and by reason of Section 127(3) of the Act, the Court has no power to make an enforcement order in respect of the Agreement because a term stating the amount of the credit is a prescribed term for the purposes of Sections 61(1)(a) and 127(3), prescribed by the Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and paragraph 2 of Schedule 6.

 

9. By reason of the facts and matters set out above, and the Claimants failure to comply with the DJ Mr xxxxxxx order dated to supply all relevant information and true copies of any agreement and to supply all data of how the account was conducted and figure claimed to be verified, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

Ok HWTH Edit to suite and check the details.

 

As you are Emailing this defence you will need to add the header (Claimant v Defendant case number etc) and also add a Statement of Truth.

 

Regards

 

Andy

[highwaytohell]

Hi Andy,

 

Sorry for the late response, been on the road since 5am and just booked into the hotel, did see the notification come in on my iphone but not a lot I could do driving.

 

I will get this composed into an email and sent off tonight with a read receipt. Hopefully there wont be any problems changing the hearing date, as I will be out of the country on the current date.

 

Really appreciate your help and assistance, which has been outstanding, despite my panicking The offer I made yesterday only goes a little way, but as I said, if I can help with anything then just ask, if I can do it I will.

 

The other forums have a lot to live up to when compared to "Consumeractiongroup" who ARE the No 1 ;-)

 

Once again many many thanks and will keep everyone posted.

 

 

HTH

[Prudence]

Any update HTH?

Kind regards, Pru

[highwaytohell]

Hi Pru,

 

Sorry for not responding but have been working away and we did'nt have 3G to connect to....felt lost without my Comms Kit.

 

Anyway, yesterday I received the below pack of documents from Link. I'll let you and Andy form your own opinions before I jump in.......Interestingly, in Para 14 of their reply, they say the agreement was incepted by post with no pressure.

 

In actual fact I was badgered into it by two young girls at a Service Station who were pushing these credit cards.

 

Anyway, doc attached and will await feedback on where I should go and what should I do next.

 

I did ask Link to agree an adjournment as I am out of the country until after the 25th of the month, and there is a hearing booked for the 20th. They refused point blank, so I am just waiting for the court manager to come back to me.

 

HTH

Link Latest Sep 12.pdf

[highwaytohell]

Hi Andy,

 

As you may have already seen, Link have responded to my Defence.....Below in the post to Pru.

 

Thanks

 

HTH

[AndyOrch]

No surprises there HWTH

 

Usual response and denial however having tested the water and their response it is clear that they wish to negotiate rather than proceed and I feel that this option should be given some consideration given that this will go Fast Track and you could be liable for costs.

 

Regards

 

Andy

[Old Cogger]

What a sick country system whereby a person because they are poor cannot get correct justice in so much that they do not have the means to represent themselves without threats of high (exorbitant cost) which in many cases far beyond their means, so the threat to nuckle under and agree what they do not believe in is shocking for a so called Human Society, just like we have no money so the food you see you cannot have = so die, that is a sick world, rant over.

[AndyOrch]

Always been the case Mike in this Country but the above scenario can be used to HWTH advantage...negotiate a F&FS by way of consent.

 

Andy

[Old Cogger]

Always been the case Mike in this Country but the above scenario can be used to HWTH advantage...negotiate a F&FS by way of consent.

 

Andy

 

 

Yes agree with you there.

[highwaytohell]

Thanks guys for the info, I fully agree with you when you say they are against the poor and those without the large sums to fight these cases. I am willing to discuss settlement with them, but what figure to start with, thats the problem. I have no doubt that they will only have paid a percentage for the MBNA debt, and of course they are going to push and push for the max they can.

 

 

With these things, is there no sort of "middle man" who can help come to a reasonable settlement ?

 

If I am talking settlement with them, what advice would you offer ?? I was thinking that whatever the sum agreed was, they would also have to agree to:

 

 

• Withdraw any further action
  
• Withdraw any records with the likes of Experian
  
• Agree that this was full and final settlement against the debt
  

Any other advice ?

 

 

Thanks

[AndyOrch]

ADR (Alternative Dispute Resolution) the option is on your AQ when you get to that stage. Alternatively you can just approach their Sols and test the water start at 10/15%.

Whichever way you agree you will not lose the adverse credit reporting that must stay in line with the ICO guidelines.

 

Regards

 

Andy

[Old Cogger]

start with 10% then see what happens?

[highwaytohell]

Thanks Andy and Mike,I will make 10% my starting point and see where we get with that. Will keep the thread updated as I go along.ThanksHTH

[highwaytohell]

Hi all, well just wanted to bring you up to speed on how things are going.....

 

I filed my defence, they responded as per above, although a couple of their responses are deliberate lies, which I shall point out to the DJ.

 

I have been dealing with their Mr Croll, who doesn't bother to return calls whe he says he will. Link tells me that Mr Croll "is without direction" which I guess means he cannot make decisions.

 

I made an initial offer of 10% of the debt, which they rejected and said they would accept £7129, I argued the point that they would of not paid the full value of the debt from MBNA and that they were being greedy.

 

They said the judge would automatically grant them the additional £2500 interest hence the figure they came up with.

 

I made a further offer of £4500, again Mr Croll never bothered to phone back as he had agreed, and eventually I phoned them to find out it had been rejected and that they were sticking to their guns on £7129.

 

They are also pushing for me to accept their direction for trial, which at the moment I have not responded to. I get the feeling they don't want the 30min session with the DJ.

 

They are pretty miffed at the moment as the session with the DJ was set for 24th Sept, I asked Link to agree to a change of date as I would be out of the country, they totally refused, so I wrote a letter of explanation to the Court and DJ......end result is that the date has been changed, much to the annoyance of Link.

 

So at the moment it's a stalemate position on the settlement.

 

Any advice, comments or recommendations would be most welcome.

 

HTH