Link/Kearns claimform - MBNA/Virgin Credit card 'debt' *** Claim Dismissed with Costs***

[RedPillGuy]

On line applications with tick box are normally followed with a further copy of the agreement (usually on receipt with your card) that requires your signature. (Hard Copy)

 

Your Standard Disclosure will be CCA and CPR requests and any responses...

 

Lets wait until the claimant provides their disclosures and witness statement before considering any offers of settlement.

 

Andy

 

Thanks Andy. Just for completeness - CCA and CPR requests and responses. Anything else usually submitted at disclosure stage?

[AndyOrch]

Thanks Andy. Just for completeness - CCA and CPR requests and responses. Anything else usually submitted at disclosure stage?

 

Anything you refer to within your defence or witness statement which you wish to rely upon.

[RedPillGuy]

before the telephone directions hearing started,

the Kearns solicitor and I agreed Disclosure by copies,

and said that to the judge on the phone,

 

 

the Directions Order that was subsequently sent out was disclosure by list.

Kearns have sent their list of disclosure through as attached.

 

I was hoping to actually SEE that they have no signed copy of the Executed credit Agreement.

indeed their list says "COPY Executed Credit Agreement"

and also says "Originals of documents sent to the Claimant

or no longer available due to the passage of time"

 

Do I just now request copies for all of these under CPR31.15©?

 

Kearns Disclosure

Disclosure.compressed.pdf

[AndyOrch]

" Do I just now request copies for all of these under CPR31.15©? "

 

Correct

[RedPillGuy]

Just to check - can anyone look at the alleged CCA and the DN that they sent me back in March 2016?

 

The DN dated 10 April 2012 definitely states payment by 24th April 2012 so less than 14 days+postage.

 

How, PRACTICALLY, does this help.

Anyone have experience of arguing (successfully) invalid DN on this basis?

 

The CCA they sent has no signature as it was an online application.

The first 5 pages are full A4 width,

but then the rest of the T&C from para 4a onwards are tall and narrow, indicating reconstituted??

 

As someone above also said,

it was usual back in those days to send out a signed application after the initial online application

- but nothing is mentioned in their standard disclosure except "Copy Executed Credit Agreement".

 

Is there a specific form of words I should use to request this, as opposed to what they have previously sent.

 

Finally as they only provided a disclosure list should I write the following as a CPR31.15 request:

"CPR 31.15 Request

 

Further to the above case number, and your Standard Disclosure N265 received 14th June 2017.

1)The Agreement ,

2) Default Notice.

 

Despite my requests under CPR 31.14 dated xx xxxx 2010 & xx xxxx 2010 respectively, you have failed to supply these documents.

 

For clarity, the documents you have previously provided in your letter of xx March 2016 do not represent properly reconstituted agreement or default notice.

 

In an attempt to again resolve this issue, I now require sight of the original documents, as I am allowed to do under CPR 31.15.

 

Specifically I request inspection of all documents listed in your N265 as follows:

(list here)

 

You will note that under this rule, you must allow me inspection or the original document within 7 days of the date of this letter..

"

[AndyOrch]

Already answered in my previous post.

 

Standard disclosure by list (N265) first then parties request what they want from the list..is standard procedure.

[RedPillGuy]

N265 sent to Kearns, along with a 31.15 request for copies of all documents they listed in theirs

[AndyOrch]

[RedPillGuy]

Court Order received today allocating a time and date for the trial.

Claimant has until 8th August to pay trial fees of £545 or claim struck out.

 

Also received from Kearns document bundle.

 

 

In my request I had asked for original agreement not any reconstituted agreements.

their covering letter says:

"the Copy Executed Credit Agreement is a literal copy.

The Agreement was electronically executed pursuant to S7 Electronic Communications Act 2000 and those electronic signatures are present"

 

Any thoughts anyone?

[RedPillGuy]

Just looking through the bundle,

 

 

the alleged CCA they have again provided is the same as the one sent previously.

I note that there are no signatures just a "tick box" both customer and on behalf MBNA.

Dated 9/2/2007

so does their assertion about "electronically executed" hold up?

 

Also the first 5 pages are full width A4,

but all of the T&C are then listed in a half width tall column so it does not look like it has come from the same document source.

 

The account was opened in Feb07, but they have only provided copy statements from Jan09 onwards

I cant compare the monthly interest rates on 07 statements to the CCA.

(The CCA says 15.8%APR, but by Jan 09 its 2.5292%/mth which is 30.35%APR)

 

They have provided a transaction list for the duration of the account.

 

They have provided copy NOSIA for Dec11, Feb12, Apr12, and then statements of account Sept31, Mar14, Aug14, Mar15, Sept15, Mar16, Sept16

 

No interest charged from Default (Apr12) until Mar16 statement where they whacked on several £k interest, £792 summons fee and £100 solicitors costs.

 

Finally they have included an "activities and memos report" which looks like their internal CRM logs of all contact attempts and letters etc. 8 pages long but it has 5 redacted entries.

Do I have any rights to see these if they are using the document in court?

 

Oh, and I can see in the attached Sale of debt agreement that my debt was part of £12m face value sold by MBNA to Link, but they redacted the purchase price

[dx100uk]

scan it all up please to one multipage pdf

[AndyOrch]

An agreement cant be executed by relying on the Electronic Communication Act 2000..that legislation simply verifies the authenticity of a signature...you made the application using the act...thats all that covers..not its execution.

 

http://legislation.data.gov.uk/ukpga/2000/7/notes/division/6/2/data.htm?wrap=true

[RedPillGuy]

I've sent them the copies of my disclosure documents.

 

 

Next step is that they have top pay the court fee by 4pm on 8 Aug or the claim is struck out.

 

 

After that we have to simultaneously exchange witness statements by 4pm on 9th August (the following day).

 

I've attached redacted copies of the documents they have provided:

The alleged Agreement,

Termination notice,

DN,

NOSIA

and SOA

and assignments.

 

 

Anyone able to have a look at these for me?

Docs1.pdf

[AndyOrch]

The account was terminated 10th April 2011..therefore no interest can be added to a terminated account...any true balance is £14,069. not £18,771.

 

And C claims-

1. 14XXXXXX, AND

2. Interest Persians so s69 county court Act 1984 at a rate of 8% per annum form 29/08/12 to 03/12/2015

of 3XXXXX and at a daily rate of 298 unit any judgment or sooner payment.

DATED 03/12/201

 

They waited over 4 years to issue the claim so the section 69 interest would accrue.

 

Regards

 

Andy

[RedPillGuy]

Thanks Andy, so they CAN add the interest under s69?

 

And regarding the Agreement - what weight having an unsigned agreement? You suggested earlier that the Agreement they provided is an online application but not an executed (and signed) agreement. Given that this is a FEB 07 application/agreement how would I argue invalidity without signature (caselaw?)

[dx100uk]

default notice is faulty doesn't allow 14 days+postage.

[RedPillGuy]

Also does the part where the application says (under right to cancel) "We will send you exact details of how wand when you can do this", and above the MBNA signature checkbox it says"The rest of your terms and conditions can be viewed by clicking the Terms and Conditions link at the top of this page" - do these not contravene Wilson and another vs Hurstanger Ltd (2007)

 

"Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document and backed up by the provisions od section 127(3), ensure that these core terms are expressly set out in the agreement itself; they cannot be orally agreed; they CANNOT BE FOUND IN ANOTHER DOCUMENT...." ??

[AndyOrch]

Section 69 is at the discretion of the court subject to how the claimant has presented its claim...and it can be 2/3/4 % ...the 8 % is not a given......nice to see Link have already included it within their statements...bit presumptuous still it bolsters their figures.

[RedPillGuy]

OK, so next step is I have to submit WS by 9Aug (simultaneous with claimant), and skeleton argument 3 days before trial. I take it the WS is more brief and factual, whereas the skeleton arguments reference all the statutes?

 

Besides timeline, My defence rests on a) no signed agreement, and b) invalid DN (dates). Further arguments about interest later on.

 

I've looked through ALL success threads that include the term "witness statement" and cant find any similar with an electronic checkbox. Can anyone point me in the right direction of a form of words to use in the WS regarding the enforcability of an Agreement without a signature?

 

Regarding the DN, if the dates are a straight 14 days, is there any references to what constitutes "service date" including assumed postage? And if not s88 compliant how do i argue that the whole case falls over? Any links to existing threads?

 

As an aside the DN they have recently sent and one they sent a few years ago is identical EXCEPT the font used and that the signature has changed. Worth pointing out to the judge that they make up new documents to suit?

[RedPillGuy]

Oh, also noticed a number of £12 Late fees in the statements - are these still considered legal and if not what impact on the defence?

 

Regarding the DN I found a shed-load of great text for the skeleton arguements at post#23 on http://www.consumeractiongroup.co.uk/forum/showthread.php?196312-Invalid-Default-Notices/page2

[AndyOrch]

" I take it the WS is more brief and factual, whereas the skeleton arguments reference all the statutes? "

 

No..the other way around....

 

Skeleton is purely bullet points to assist you the Judge and to a degree the claimant

[RedPillGuy]

Deeper down the rabbit hole... If the DN only gave 14 calendar days, not the requisite postage days as well, but MBNA did not terminate until a couple of months later - do the erroneous dates still make the DN defective? If so does that make the termination an unlawful recession? And if that is the case does it make the claimant unable to enforce the agreement in total, as there is now now valid agreement? Finally does that open up the prospect of damages Kpohraror vs Woolwich and removal on credit file?

[RedPillGuy]

An agreement cant be executed by relying on the Electronic Communication Act 2000..that legislation simply verifies the authenticity of a signature...you made the application using the act...thats all that covers..not its execution.

 

http://legislation.data.gov.uk/ukpga/2000/7/notes/division/6/2/data.htm?wrap=true

 

Andy, the caselaw at Bassano v Toft & Ors [2014] suggest otherwise - see https://www.scl.org/news/3037-consumer-credit-and-online-signatures

 

Any opinion on that?

[dx100uk]

that's for post april 2007 online agreements.

 

 

yours was Date of Signature 9/2/2007

[RedPillGuy]

dx, I'm not arguing but trying to understand what legislation takes precedence so as to argue my case.

 

If you look at the link, you will see that the 2014 judgement upholds based on the Electronic Communications Act 2000 (incl s7) an "I agree" checkbox as a signature.

 

I understand the date you are referring to S. 127(3)-(5) repealed (6.4.2007) by Consumer Credit Act 2006.

 

 

Because my agreement predates the repeal s127 (3) "The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

" - i.e. the court should not order enforcement of my debt without a "Signed" agreement.

The claimant will claim un ECA2006 that they do.

 

Andyoch himself seemed to say this is true for agreements AFTER December 2004

(see post 16 at http://www.consumeractiongroup.co.uk/forum/showthread.php?444366-Judge-amp-Priestly-(old-MBNA-debt)-reconstituted-agreement-provided-for-court-case)

 

Confused