Aktiv Kap/hassall SD *** old MBNA Card **Resolved by Tomlin Order**

[chinawhite1]

Hi

I have just had a letter delivered to me personally by a guy at my door and its a statutory demand under s.268 of the insolvency act 1986. Debt for liquidated sum payable immediately.

 

HELP !! what is this, are they forcing me to go bankrupt ??? it says i have 18 days to apply to court to set aside demand.

 

This if for an old MBNA account that I CCA'd and they sent a copy application form so I have not been paying it - its a really old account ive had it since probably 1990 and its for £14,727.

 

Im really worried that they are going to make me bankrupt so any help would be appreciated.

 

Thanks

 

cw

[DonkeyB]

Don’t panic! As you have seen, you have 18 days from now to respond to this, to apply to have the SD set aside.

 

Please tell us the history of the account. Has it been sold/assigned to a third party?

 

When did you send a CCA request and who to? What exactly were you sent in response? When did you last make a payment? Why did you stop paying?

 

Tell us all you can.

[chinawhite1]

Hi

 

I think this card was taken out early 1990's. In Dec 2009 I was going through a divorce and asked for a cca because there was some dispute between my ex and myself and they didnt send me one. They sent me a letter in January 2010 saying they aplogised for the delay responding and that they hoped to write further in due course. I sent them a letter saying they had 28 days to produce CCA. I actually dont think that Ive ever received anything from them regarding CCA, not even application form. I stopped paying because they couldnt send me CCA and basically I couldnt afford the repayments anyway because of divorce. I have made payment arrangements with other creditors i had and if they had been able to produce the document I would happily have initiated a payment plan.

 

They then sold the debt to experto credite in Aug 2010. I wrote to experto credite and advised them that I had not had copy CCA and on 15 sept 2010 i got a letter off them saying they were contacting MBNA regarding the copy agreements and would contact me once they had heard. I never got a copy but kept getting letters off them, the usual debt collector letter, then I think they sold it to Aktiv Kapital which is who this demand is now off via Wright Hassall.

 

Im a bit shocked because I didnt know they could do this.

 

Thanks

 

CW

[DonkeyB]

So what did they send eventually in response to your CCA request?

 

If it transpires the CCA request has not been fulfilled, that is grounds to set aside the SD.

[chinawhite1]

Right have checked through my paperwork properly (as was panicking) and they did respond for that particular account in Feb 2010 they sent me a copy of the application form that I had filled in and a separate copy of conditions of use which they said was printed on the reverse of the application form and with it they sent what I think is a recon of terms and conditions with my name and address on but not my signature.

 

I replied with a letter saying that it was an application form and that I would like the original CCA with my signature on . . MBNA wrote saying they were satisfied that the agreement they had sent me complied with all requirements. I did all this following advice on debt forums regarding CCA rules. I was under the impression that they could not enforce this debt. Anyway, the debt got sold on and letters came from experto credite.

 

Ill be honest and say that I didnt take much notice of any further letters because I just assumed that this was still in dispute because they couldnt produce the original.

 

Thanks.

 

CW

[DonkeyB]

Given it’s an MBNA account, the likelihood is that any Default Notice they issued was faulty. Do you have copies of any DNs?

 

Have you done any research to establish whether the reconstituted CCA is accurate?

 

Complying with a s78 request is not the same as being able to enforce a debt, but I think that applies to enforcement via a claim in the county court.

[chinawhite1]

Sorry for confusing post, I had two accounts with MBNA and it was the other one that they never produced any paperwork for . Will try and stop panicking in order to give proper info !!

 

thank you

[chinawhite1]

Hi

 

I have done some research but there are many conflicting opinions on whether a reconstitued CCA is accurate and I think that probably only a court could decide in the end, I think some cases have been lost and some have been won.

 

Ill have a look through my letter for a default notice.

 

Thanks

 

CW

[DonkeyB]

If you can post redacted versions of what they have sent, we can help. Would be interesting to see from the app form if we can actually match it to a set of T&Cs.

[unclebulgaria67]

They will still need the original CCA or copy of to enforce the debt in any court, for an account of this age. So you will have to apply for the set aside, as you have no choice. It does not cost you any court fee to do the set aside and if you win they cannot then proceed with a bankruptcy petition.

 

There are loads of threads on here, showing you what you need to do in regard to completing the set aside forms. Have a search and if you have any questions, then post back.

[chinawhite1]

Hi

 

Ive checked for default and I have letter dated 23rd feb saying important default notification, basically stating that i am in breach of terms and failure to pay will result in default. I then have one from 1st June 2010 sayin a default is due to register in the next few days. I then have one from 3rd June saying account due to default at the end of the month. My statement from march 2010 has late default sum and over limit default sum on it (both £12) and a notice of sum in arrears. I cant actually find anything that says I have been defaulted but I cant guarantee that I have every bit of paperwork - they may have sent one and for some reason its not with rest of paperwork although I would have thought that I would have kept one with other letters.

 

 

If i apply to set aside and loose what happens ?? do they just make me bankrupt straight away ?

 

thanks

 

CW

[DonkeyB]

But nothing that actually says ‘default notice’?

[chinawhite1]

Sorry, I have just found another copy of app form they sent me only this one actually has the conditions of use on the reverse. Im unsure how to post this as I dont have access to a scanner , could I take a photo and post that ???

[DonkeyB]

Yes. But use some basic edit software to remove any personal or account details.

[chinawhite1]

[ATTACH=CONFIG]42405[/ATTACH]

 

[ATTACH=CONFIG]42404[/ATTACH]

 

 

 

[ATTACH=CONFIG]42403[/ATTACH]

 

 

[ATTACH=CONFIG]42402[/ATTACH]

 

 

[ATTACH=CONFIG]42401[/ATTACH]

 

I think these might be a bit rubbish !!!!! ill try and get access to a scanner.

 

No I cant actually find anything that says default notice, only letters saying its about to default.

Edited March 13, 2013 by citizenB

[chinawhite1]

Help !! i have mistakenly posted the pics in a post that I was reading earlier today (no idea how I did it !) its a post called lowell/hampton statutory demand won + costs - could somebody tell me how to move the post to this thread please ?

 

thanks

 

CW

[The Mould]

Help !! i have mistakenly posted the pics in a post that I was reading earlier today (no idea how I did it !) its a post called lowell/hampton statutory demand won + costs - could somebody tell me how to move the post to this thread please ?

 

thanks

 

CW

 

Ask the Site Team my dear fellow (try dx) and try to remain calm (easy, you might think, for me to say, however, it really is not that easy for me to say)

 

Kind regards

 

The Mould

[unclebulgaria67]

Help !! i have mistakenly posted the pics in a post that I was reading earlier today (no idea how I did it !) its a post called lowell/hampton statutory demand won + costs - could somebody tell me how to move the post to this thread please ?

 

thanks

 

CW

 

I have alerted the site team. The pictures are too small anyway to read. It looks like the application form, which as bits which could be a CCA, but is possibly not that actual CCA that you would have been issued with, once your application had been accepted by MBNA.

[The Mould]

1990's agreement - the Wilson v Fist County Trust - House of Lords Decision may apply RE sec 127 CCA 1974 (BEFORE 2006 AMENDEMENTS), that is to say, improperly executed credit agreement means that the same cannot be enforced by virtue of said sec 127 CCA 1974 - irrefutable.

 

Further, failure by a creditor to serve a valid statutory default notice = no enforcement action cvan be taken against the creditor - irrefutable

 

Kind regards

 

The Mould

[chinawhite1]

Thank you !! So my reason to set aside would be that the debt is still in dispute because of the agreement and also I have never received a default notice ??? What then happens if the judge doesnt agree and set it aside ?

 

with regards to the default notice, I have checked my credit report and the default is on there - does that mean that it is assumed they have served me a notice ? Also, does the agency that bought the debt i.e. aktiv capital who bought if off experto credite, have to serve another default notice ? i.e. does one have to be served each time the debt is sold ?

 

Thanks

 

CW

[The Mould]

Thank you !! So my reason to set aside would be that the debt is still in dispute because of the agreement and also I have never received a default notice ??? What then happens if the judge doesnt agree and set it aside ?

 

with regards to the default notice, I have checked my credit report and the default is on there - does that mean that it is assumed they have served me a notice ? Also, does the agency that bought the debt i.e. aktiv capital who bought if off experto credite, have to serve another default notice ? i.e. does one have to be served each time the debt is sold ?

 

Thanks

 

CW

 

If the agreement is pre-1990's and improperly executed for the purpose of sect 61 CCA 1974, then the lower Court Judge in these Statutory Demand proceedings cannot argue against the House of Lords judgment handed down in Wilson v First County Trust (you ought to search this case, print the transcript thereof off and peruse the same).

 

Further to the above my dear fellow, if your creditor has not served a valid statutory default on you pursuant to sec 81 CCA 1974, then your creditor cannot seek to enforce this agreement against you.

 

Kind regards

 

The Mould

[chinawhite1]

Hi thanks for that , i will search case and have a read through

 

thanks

 

CW

[The Mould]

Hi thanks for that , i will search case and have a read through

 

thanks

 

CW

 

Good stuff

 

In the meantime do not lose sight of the timescale upon which to file your Response to this Statutory Demand ("SD"). Check with your local County Court and ask if they deal with these Statutory Demands.

 

I will send an SOS Site Team member 42man.

 

Kind regards

 

The Mould

[caro]

Help !! i have mistakenly posted the pics in a post that I was reading earlier today (no idea how I did it !) its a post called lowell/hampton statutory demand won + costs - could somebody tell me how to move the post to this thread please ?

 

thanks

 

CW

 

Post with pics moved to correct thread.

[chinawhite1]

Thank You