Experto/Varde now Arrow/Shoos Claimform - old MBNA card debt

[roygoodbeat]

First a new default notice issued giving me just 14 days to pay (Have checked the credit record and only the original one is recorded there. Now I received a new offical notification stating:

 

This Arrears Notice is served in accordance with Section 86cof the consumer credit act 1974

As you are aware from our previous correspondence Varde Investments(Ireland) Limited (“Varde”) is the legal Assignee of the outstanding balance ofyour MBNA account, and under the terms of this assignment Experto CrediteLimited (“Experto”) has been appointed by Varde to recover any and alloutstanding sums. You are in breach of the ‘payment’ clause under your MNBA creditagreement, with MBNA account number xxxxxxx, by failing to pay the minimumamount required and your MBNA agreement has already been terminated.

 

It then goes on to say call us to pay up and for the firsttime, Experto have included an OFT advice sheet on arrears and debt.

Under what legal basis are they reissuing these documents?

 

First a new default notice issued giving me just 14 days to pay (Have checked the credit record and only the original one is recorded there) Now I received a new offical notification stating:

 

This Arrears Notice is served in accordance with Section 86cof the consumer credit act 1974

As you are aware from our previous correspondence Varde Investments (Ireland) Limited (“Varde”) is the legal Assignee of the outstanding balance of your MBNA account, and under the terms of this assignment Experto CrediteLimited (“Experto”) has been appointed by Varde to recover any and all outstanding sums. You are in breach of the ‘payment’ clause under your MNBA credit agreement, with MBNA account number xxxxxxx, by failing to pay the minimum amount required and your MBNA agreement has already been terminated.

 

It then goes on to say call us to pay up and for the first time, Experto have included an OFT advice sheet on arrears and debt.

 

Under what legal basis are they reissuing these documents?

[citizenB]

Sorry to laugh at you.. but that is NOT a default notice. It is a notice of arrears and they are legally obliged to send these out at least once a year. Just simply file it away.

[roygoodbeat]

I have largely ignored MBNA. They not only failed to produce everything on my Subject Access Request, they also filed an invalid default for the full amount.

 

They have since sold this to arrowsmith. I have now received a letter from Shoesmiths threatening court action procedures will start in 14 days.

 

I am a little out of tough, but what is the current situation with 1)

 

1) Invalid defaults,

2) Invalid Credit Agreements.

[slick132]

Hi RGB,

 

The 2 points above can be used to defend against a claim but you need to research the topics thoroughly to give yourself the best chance of success.

 

[roygoodbeat]

I need some urgent advice on this:

I took out a Bank of Scotland Credit Card in 2003. I raninto financial difficulties in March 2009.

I received this on the 11th October 2012:

 

A Northampton court claim filed by Shoosmiths.

 

Particulars are:

1) The Claimants claim for a sum of £xxxx beingmonies due from the defendant to the claimant under a regulated agreementbetween the defendant and MBNA Europe Bank and assigned to the claimant on20/12/2011, notice of which has been provided to the defendant.

 

2) The defendant has failed to make payments inaccordance with the terms of the agreement and a default notice has been servedpursuant to the Consumer Credit Act 1974.

 

3) The claimant claims the sum of £2xxx.

 

4) C has complied, as far as necessary wi thepre-action conduct practice direction.

 

In May 2009 I made a subject access request and alsorequested a copy of my credit agreement. As far as I am aware I have onlyreceived a reservation form from Bank of Scotland.

 

They have never supplied the T&C’s, no deed ofassignment from Bank of Scotland to MBNA or I don’t recall receiving one fromMBNA to Arrow Global. At the time I enquired on this site and a couple ofcompanies and I was advised it was an invalid agreement and they cannot pursuein the courts.

 

I also received a default for the full amount, as opposed tothe amount outstanding. I have written twice to MBNA accepting the unlawfultermination and accepting what was genuinely due at the time, not including anyunlawful charges. This was ignored by MBNA.

Just when I am getting my life back together, this! My partner is suffering from depression. Thisis the last thing we need.

Any advice? Can I still fight this?

 

[Bandit127]

Sorry to post and run - but please could you adjust the amount owing if you haven't already? (A google search with that amount would very likely pick this thread up).

 

When was the account started?

[dpick]

Hi if you are owt like me all you will receive with regard to the original agreement is a copy of the front of the agreement no prescribed terms on it and latest T&C from MBNA told them to take a leap.

 

dpick

[roygoodbeat]

Original Agreement was taken out in the first half of 2003. I have attached the reservation form and default notice.

[AndyOrch]

Hi Roy

 

You have 33 days in total to deal with this matter, 5 deemed served so 28 ( 14 to AoS and if you are intending to defend then another 14) to submit your defence.

 

Regards

 

Andy

[roygoodbeat]

Thanks.

 

Based on the info I have provided, can someone advise me where I stand and do I have a chance of defending this?

[AndyOrch]

I would request a further section 78 (CCA) from Arrow now they are the legal owners (allegedly) and also request information pertaining to their claim by way of a CPR 18.1.Little point using the CPR 31.14 as they refer to next to nothing within their P.O.C.

 

You have the DN you have an application form...have you got all your statements and if so are the any unfair charges or miss sold PPI?

Within the CPR 18 you can request information purporting to the Assignment/Arrears Notices/ statements.

 

Start to gather your information now today ...the clock is ticking.

 

Regards

 

Andy

[roygoodbeat]

have to check on the statements but I did not take PPI. I know that they applied unfair charges.

 

What letter should I write in regards to CPR 18.1. Will they have to still submit a credit agreement and terms with this request as these will need to be used in court if they go ahead with their claim. The Section 78 I did with MBNA only gave me a copy of the application form, no t@C's. Only a copy of MBNA's.

 

Looking at my agreement and default notice, are they valid and enforceable?

[robcag]

Original Agreement was taken out in the first half of 2003. I have attached the reservation form and default notice.

 

Attached Files

• Full page photo.pdf‎ (4.39 MB, 0 views)
  
• Full page photo 2.pdf‎ (1.80 MB, 0 views)
  

 

 

Thanks.

 

Based on the info I have provided, can someone advise me where I stand and do I have a chance of defending this?

 

I'd say you have a very good chance of defending it;

 

1. The DN is defective in that they have not allowed time for service, it's short even if 1st class postage was used.

2. The application does not contain the prescribed terms - let's see what Andy's suggested s.78 CCA request turns up.

 

Rob

[roygoodbeat]

I'd say you have a very good chance of defending it;

 

1. The DN is defective in that they have not allowed time for service, it's short even if 1st class postage was used.

2. The application does not contain the prescribed terms - let's see what Andy's suggested s.78 CCA request turns up.

 

Rob

 

1) How many days should it state. Secondly can they claim for the full amount. At the time I accepted their unlawful termination due to this.

2) If I send the s78, what do I do in terms of a holding defence. If that is delayed then I may not have the chance to submit a defence. I had another claim back in 2010. The claimant did not submit everything in time for my defence. The court asked me to submit a defence anyway. Even on the day of the hearing the solicitors finally gave me everything they would be replying on at the hearing. This again was an unenforeable agreement but the judge did not want to seem to want to know this. I lost but was advised that the judge should not have allowed this. Did not have the money to appeal.

[AndyOrch]

have to check on the statements but I did not take PPI. I know that they applied unfair charges.

 

What letter should I write in regards to CPR 18.1. See Example below Will they have to still submit a credit agreement and terms with this request as these will need to be used in court if they go ahead with their claim. Yes if you demand that they are disclosed The Section 78 I did with MBNA only gave me a copy of the application form, no t@C's. Only a copy of MBNA's. Forget that do another one MBNA are not sueing you Arrow are and are now the legal owners.

 

Looking at my agreement and default notice, are they valid and enforceable?

See Robs Comments

 

Your Name

Your Address

IN THE XXXXXXXXX county court

CLAIM NO: Date:

BETWEEN:

XXXXXXXXXX

Claimant

and

XXXXXXXXXXX

Defendant

CPR request PART 18.1 REQUEST FOR FURTHER INFORMATION

To: XXXXXXXXXX (claimant)

 

 

Please answer/provide documented evidence of the following questions:

 

1. Upon what date was the last payment made on the account?

2. What was the source, method and amount of the payment?

3. Was a Default Notice issued pursuant to section 87 of the Consumer Credit Act 1974 (as amended) and if so:

a] Upon what date, for what amount and what was the date for remedy of the breach?

b] Was the issuance of the Default Notice noted in the communications log?

c] What method of postal service was used to send the Default notice?

4. Does the amount claimed include charges, and if so what are the total of those charges?

 

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU

 

Print Name.

 

Regards

 

Andy

[robcag]

DN issued 9/10/2009 (Friday), if deemed served via 1st class = 13/10/2009 (Tuesday). Add 14 clear days = 27/10/2009 (Tuesday). They stated 26/10/2009 (Monday), so they're bu88ered however they posted it!

 

Rob

[roygoodbeat]

Thanks. I read somewhere (Maybe getting confused) that some banks claim that after 6 months they can claim the full amount so that the default notice they issue can state the full amount?

[roygoodbeat]

See Robs Comments

 

Your Name

Your Address

IN THE XXXXXXXXX county court

CLAIM NO: Date:

BETWEEN:

XXXXXXXXXX

Claimant

and

XXXXXXXXXXX

Defendant

CPR request PART 18.1 REQUEST FOR FURTHER INFORMATION

To: XXXXXXXXXX (claimant)

 

 

Please answer/provide documented evidence of the following questions:

 

1. Upon what date was the last payment made on the account?

2. What was the source, method and amount of the payment?

3. Was a Default Notice issued pursuant to section 87 of the Consumer Credit Act 1974 (as amended) and if so:

a] Upon what date, for what amount and what was the date for remedy of the breach?

b] Was the issuance of the Default Notice noted in the communications log?

c] What method of postal service was used to send the Default notice?

4. Does the amount claimed include charges, and if so what are the total of those charges?

 

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU

 

Print Name.

 

Regards

 

Andy

 

Had a letter back from Shoosmiths.

 

Had sent in two letters. One from the above and CPR part 14.

 

They state:

 

With reference to the above matter and your recent correspondence, we can confirm the following information immediatly.

 

1) The last payment on this account 2nd June 2009

2) The default notice was sent via 1st class post

 

Other information you have requested is not held by ourselves, therefore we have requested this information from our client. The information is:

 

1) The agreement

2) Notice of assignment

3) The default notice

4) The termination notice

 

Please note that our client is not obligated to provide this information within the timescale you state. As you have filed an acknowledgement of service you now have until 19 November to file a defence and the grounds for your defence. Blah bal blah....

 

I gave 7 days for CPR 14 and 14 days for CPR 18.

 

Surely these documents should have been sent with the service of notice as it is mentioned in their particulars of claim? How can I make a defense and get any legal advise if they don't sent it with plenty of time.

 

What do they mean by their client is not obliged. Seems to me they are ignoring the rules.

[AndyOrch]

CPR ( Civil Procedure Rules ) the Claimant is not obliged to respond to any request unless followed with an application to court to enforce order. However they will always state they will try to as this prejudices them in the matter as being none compliant and will affect costs when that is to be decided. Any defence is toothless if based on the fact that none compliance with a CPPR request...that is not a reason to defend only to support.Hence my suggestion to make a section 78 request this is the only request that puts the claimant in default and attacks the crux of any claim.

 

Documents are not required to be served with the summons due to the constraints of the CCBC (Northampton) CPR 16(2) however :-

 

(2) If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow.

 

Regards

 

Andy

[roygoodbeat]

The particulars of claim does not state that these are to follow.

 

I did a section 78 on MBNA a long time ago. I will send one to Arrow however, like before they will most likely not send a copy of the original ones, only the current terms which are not relevant.

 

If I am correct (Correct me if I am wrong), after the Wakesman ruling, a reconstrution copy would satisfy a section 78 request, however, in terms of enforcement, the lender has to supply the terms and conditions at the time and any changes since.

 

I remember a case I lost with Sainsburys. The solicitors only came up with the t&c's at the hearing, but these were described as similar to the original. The judge did not want to hear about non compliance of CPR or section 78, nor the fact that alot of the paperwork was only given to me an hour before the case was due to be heard.

[AndyOrch]

Its more about the agreement than the T&Cs...you dont enforce with the T&Cs.

 

Andy

[roygoodbeat]

I have 4 days left in which to submit a defence. I have not received anything from the solicitors or creditor apart from the last payment date and that the default notice they claim was was sent first class. No credit agreement, no default notice and no answers to any of my other questions. They have not adherred to the CPR requests.

 

The particulars of claim do not state that the documents are to follow.

 

I did not do a section 78 as I have been unwell, however, I made a section 78 request back in 2009, of which MBNA only sent a copy of the application form and the current terms of conditions, and are therefore still in breach. As arrow have taken over the account, does this means that the same conditions apply as they have taken over the rights and everything to do with the original account?

 

Secondly, I have read that at the time MBNA used to send default notices out by second class post, not first class as the solicitors claim?

[unclebulgaria67]

Embarassed defence that the claimant has not replied to the CPR request made and therefore without full disclosure you cannot offer up the defence that could be made, if the requests had been complied with.

 

Hopefully someone will be along shortly to help you with such a defence. There are many threads on here with examples of what to write.

[roygoodbeat]

Any help with an embarassed defence would be great.

[unclebulgaria67]

It is something like this, but you will need to adapt this for your own situation. Write down the points where the claimant has failed to provide information which would be required by you. The main one is that they have not provided the CCA.

 

Defence

 

1.Even making allowance for the Northampton Bulk Regime the claim fails to disclose sufficient information as required by the CPR, there is no reference to any account number, no date of alleged agreement, no date of alleged default or details of any default notice served in accordance with s87 (1) Consumer Credit Act 1974, the claim is missing vital information.

 

2. Without admission that any cause of action is shown by the Claimant it is denied that the Claimant has a claim whether as pleaded or at all.

 

3. No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon

 

4. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimant’s claim appears without merit

 

5.Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.