Help needed,first posting

[cader]

Hello all.

 

This is the first posting on the forum,having found this site from xxxxxxxxxxx. Since Aug last year I've been following their 3 letter/estoppel notice system on all but one of my considerable debts(an existing Charging Order on that one). I don't know if these will be ultimately successful,mixed results so far,and one disastrous ending for me yesterday when another 'creditor' railroaded through another charging order on the house(co-owned by my wife who has no debt in her name,it's all my fault).

 

Anyhow,I really need an alternative view on one 'debt' in particular. 2 MBNA cards with Link Financial acting as DCA. On both accounts I requested Verification of Claim as per the 3 letter system,i.e. a full accounting of the debt,a hand-signed invoice as per the Bills of Exchange Act 1882,proof of Agency and of course a copy of the contract,giving the usual ten day grace period to provide same.All they sent was a letter saying the accounts were "assigned" to them in 2004.(The 'debts' go back to 2001)and a transaction summary for each account showing the payments I made whilst with the CCCS,which I stopped making in Sept.2011 when I began the 3-letter process.

 

So I then issued a Notice of Estoppel for each account after hearing nothing from them for the requisite 30 days.Over a month after that they sent a letter attempting to demolish the 3-letters and estoppels.Still no contract.This letter said both accounts were legally valid,and all the previous correspondence from them was headed with both account numbers..Then almost 6 weeks later,end of Feb. they have sent another letter,again saying the same as last time,but this letter was only headed with one of the account numbers,and they specifically only refer to that one account saying that this one is a legally binding document.And now suddenly they send a copy of the original MBNA Classic Card application form for this one account.

 

 

This is signed by me dated 3rd Jul.2001 and my wife,an extra card holder,on the same date.It is not signed or dated by anyone else(so is therefore not a legal contract??)They also sent a photocopied sheet with a small column headed Financial & Related Conditions,but this is again not signed or dated and could have just been added to the papers they sent from any source.They have also sent what would appear to be a tear-off slip type 'document' which lists Data Protection and which then has my signature on it(but not my wife's even though they put crosses by where they wanted me and her to sign).

 

The signature is dated by me as 16th November 2002! There is another signature barely legible because it is written directly over all the Data Protection printed inf,but that signature is dated 21st Nov.2002. Both these small slip-type papers state it is Virgin Credit Card,so this must be the other account they suddenly don't refer to when talking about ' legally binding.' Forum consensus on the GOODF was do not send the £1 under CCA because it acknowledges the 'debt'. Now I don't know what to do for the best.I am 58 years old and have spent many many hours going through forum threads,researching as best I could while trying to work full time.

 

I have to admit I am close to the edge now. I am so overwhelmed by all the supposed means by which I can try to get a life back and so-called defences. My direct experience as of the Court appearance yesterday (they even refused my request for an adjournment so I could try to prepare a defence)was that if it gets to Court then you have little or no chance of winning even if technically you are correct in law. The system is there to ensure that,and asking any judge to find otherwise is asking turkeys to vote for Christmas.

 

When I tried to defend by quoting Section 43 of the Bills of Exchange Act (if the debt is bought from the original lender,it is deemed to be paid in full,and as there is no contract with the purchaser of that alleged debt) the judge simply smiled and said that they now use up to date laws,the CCA,and not ancient outdated ones. Bang,Charging Order granted,if I want to contest it,I have to pay this fee and that fee and will be liable for costs against me if (when!) I lose.

 

The irony is there is no justice for people without money,but if you had the money to fight it you wouldn't be there in court in the first place. I will be paying these leeches literally until I die,I owe some 45K. I have an existence,not a life and that's why I latched on to the 3 letter system to try to get some sort of a future. Who knows what will happen now. I could really use some help if anybody can.Of course if the 'debt' and paperwork are fully compliant legally then I will pay them monthly again.

[ims21]

Can you please edit your post and put some spacing in....not many folks will read it sadly

 

ims

[rebel11]

Hi cader

 

Welcome to CAG

 

The guys will be happy to advise as soon as they are available.

 

Spaces added, please use paragraphs.

 

Also please read 1,2 and 3 in my signature.

[shortieb]

I'm not a lawyer and do sympathise with what you seem to be going through. I don't know all your circumstances from what you have posted here but, given what you have said, if it was me I'd be inclined to acknowledge the debt and plead poverty, let them take me to court and ask the judge to grant an order where I only had to pay them something like £1 a month! This is just what I would think of doing so that any court order is, in effect, against them so I could get on with my life.

[citizenB]

Have you actually received a claim from MBNA / Link ?

 

If so, can you please let us know the issue date and exactly what is said on the Particulars of claim ?

[DuffNCustard]

Understand your frustration believe you me I racked up debts of over £90k before I hit the buffers. Whilst a lot of that was interest it was me that blew the money and it was me that paid it back via a DMP run by the CCCS. So presumably you have ruled out bankruptcy and IVA and having cancelled your arrangement with the CCCS the courts have not helped you out of your particular debt hell-hole. Looks like you're going to have to pony up the cash - full and finals? .pr a self run DMP. As you have an asset to protect you really don't have any wriggle room

[cader]

Hi citizenb. If you mean have they sent a court summons/claim,no they haven't yet.

[asokn]

What help do you need? It's a bit unclear at the moment what you're asking of the forum.

[cader]

I need to know whether the copy documents they have sent are CCA compliant or not.Thanks

[the_shadow]

Its quite interesting the judge mentioned up to date legislation when you talked about the sale of the debt. The actual law that governs sale of debts is the Law of Property which is a modern up to date bit of legislation from 1925

 

 

Anyway to the matter in hand, the fact you have mixed the two accounts in the first post makes it difficult for people to understand the issue. So you want to know if copy documents are sufficient for what... to take you to court? or as a s78 response?

 

For court a copy of the CCA plus the default notice and the notice of assignment should be presented however with recent cases Carey vs HSBC in particular reconstructions have been used and accepted by judges probably wrongly but thats the risk of county court.

 

 

S.

[asokn]

I need to know whether the copy documents they have sent are CCA compliant or not.Thanks

 

Without uploading the documents it's impossible to say if they specifically are OK. Copy documents per se are fine, the creditor can rely on copies in court.

[cader]

It's not the fact that they are copies-these copies weren't sent as a result of a S78,but under the 3 letter/estoppel system. As I understand it (I probably don't!!)the 'contract' has to be signed AT THE SAME TIME by both parties in order to be a valid one. This appears not to be the case with these copy docs.Also there are supposed to be 'prescribed terms'-does this mean the Terms and Conditions sheet they sent?

[citizenB]

It's not the fact that they are copies-these copies weren't sent as a result of a S78,but under the 3 letter/estoppel system. As I understand it (I probably don't!!)the 'contract' has to be signed AT THE SAME TIME by both parties in order to be a valid one. This appears not to be the case with these copy docs.Also there are supposed to be 'prescribed terms'-does this mean the Terms and Conditions sheet they sent?

 

If we are talking about a credit card application / agreement then you will most likely find a "stamp signature" somewhere on the MBNA document. If not, then I do not think it would be a bar to them issuing a claim as they could simply sign there and then.

 

I guess it could be argued that if the document wasnt signed within a few days of the debtor's signature then would they have been allowed to charge interest rates etc.. or if they are signing a copy.. because almost certainly they wont have the original.. would that be permitted.

 

The prescribed terms should be part of the original document as far as I am aware.. and should have been present at the time of signing. If you have a read of the attached judgment then you will see that they werent and Mr Harrison won his claim. Please note that in this instance, Mr Harrison was the claimant - he had been persecuted to hell and back by Link and sought an injuction to have them stopped. Link decided they would counterclaim for the outstanding balance on the card - some £20,000 and in that respect, MBNA were brought into the claim. MBNA put up a good fight, but dug themselves in very deep with their inadequate record keeping and other serious issues as will be see in the judgment. It might be of some assistance to you.

 

The Judge decided that the prescribed terms had NOT been present at the time of signature and MBNA's attempts to "reconstruct" were woefully inadequate as they simply didnt have the correct information to do so.

 

Harrison v Link Financial Ltd ALL ER (2011).pdf

[asokn]

The OP needs to drop this 3 letter/estoppel system as it is worthless junk.

 

A contract does not need to be signed by both parties at the same time, otherwise how would that be defined? Signature by both in the same second? That would be impossible. Instead both parties have to sign before the contract is executed and takes effect.

[citizenB]

The OP needs to drop this 3 letter/estoppel system as it is worthless junk.

 

 

I agree with you. I think the OP has created more problems for himself by even going down this route..

 

Subject Access Request - CCA request and a request made under CPUTR would have been far more in keeping with the way things are done. !

[the_shadow]

The OP needs to drop this 3 letter/estoppel system as it is worthless junk.

 

A contract does not need to be signed by both parties at the same time, otherwise how would that be defined? Signature by both in the same second? That would be impossible. Instead both parties have to sign before the contract is executed and takes effect.

 

Yep and even if its not signed as mentioned by Citb the judge will rule on whether any detriment has occured for the OP by it not being signed and executed prior to the OP spending the money.

 

S.