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

[chinawhite1]

Hi, another question !

 

I have been looking at my old statements for this account and have tried to work out interest rates that they were charging - the rate stated for purchases is 1.09 and the rate for balance transfers is 1.59. I cant remember what the balance on this card was for , whether it was purchases or transfers and the statement does not clarify this, just states balance previous statement. I have looked at each month and the interest rate varies from 1.01 in August 09 to 1.57 in nov 09 then back to 1.07 in October 09 and back up to 1.47 in Dec 09 - during this time the card was not used at all so no extra spending.

 

From Dec onwards the rate remained high at between 1.46 to 1.77 - I wrote to them in january , before I had received any CCA off them, saying i was having difficulty paying and asking if they would freeze interest and hold any action - on each statement after this they have added default sum and because of the default sums and interest still being added, this took me over the credit limit and they started charging me overlimit fees. !!

 

My question is - does the interest rate vary month by month like that or should it stay the same as it says on the statement. i,e, 1.09% ?? And also, even though I was disputing the CCA I did write to them advising of difficuties and they still continued to add charges and interest, do you think this is deemed unfair charges ??

 

Thanks for any help, bit confused !!

 

CW

[chinawhite1]

An example in money terms of this is on the Oct 2009 statement balance brought forward is £12974.61 payment direct debit is 129.94 interest charged is £139.81 and balance is 12984.48 - then on November statement balance brought forward is £12984.48 payment direct debit is 144.81 interest charged is £204.33 and balance brought forward is £13044 - thats a huge jump in interest when there had been no activity on account -

 

Im perplexed ! Does any clever person out there understand this, could this be correct, the interest rates stated on both those statements are 1.09 for purchases and 1.59 for balance transfers

 

thanks

 

CW

[unclebulgaria67]

There are calculators online, just google credit card interest calculator. I just had a look and it appears you are being charged the 1.59 rate on the balance. It is not exactly 1.59, but nearer to 1.60

[chinawhite1]

Oh okay thanks will have a look, i just wondered why such a big jump in interest from october to november when there was no activity on the account ?

 

thanks

[ims21]

Broadly speaking, £12,974.61 at 1.09% is £141 which seems to agree with your statement.

 

£12,984.48 at 1.09% would be about the £141 mark again.

 

However £12,984.48 at 1.59% is £206.

 

Have they used the wrong rate I wonder?

[chinawhite1]

yes it does seem to jump from the 1.09 to around the 1.59 - wouldnt they have had to notify me of that ??

 

I have drafted a set aside statement and also a letter to the solicitors who delivered the statutory demand, Would it be okay if I pasted it onto here for someone to check its okay before I send it ? Have used some of the info from here to complete it. ?

[ims21]

Yes you can post it up her but make sure reference numbers or other identifiers are not used.

[chinawhite1]

Great thanks.

 

 

Letter to Solicitor:

 

Dear XXX,

 

I have received the Statutory Demandsent by your Company or client. I would like the date I received thisdocumenting as the 13th March 2013. I intend to apply for this to beset aside.

To assist withmy defence (a copy of which I have attached for your information) I requirespecific information regarding the account to be provided forthwith.

1. Atrue copy of the executed credit agreement and any terms and conditions thatapplied to the account at the time of default and at the time the account wasopened

2. A transcript of all transactions, includingcharges, fees, interest,repayments and payments and both the original amount of the loan and anyrepayments made to the account.

3. Truecopies of any notice of assignment and/or default notice or enforcement noticethat you or the original creditor sent me, with a copy of any proof of postagethat you hold.

4. Agenuine copy of any deed of assignment, or proof that you have a legal right tothis money.

5. Agenuine copy of any notice of fair use of my data as required by the DataProtection Act 1998

6. Alist of third party agencies to whom you have disclosed mypersonaldata and a summary of the nature of the information you havedisclosed.

7. Clarificationof the date you acquired the debt, what organisation you acquired it from,their registered office, their company number (if any) and what legal titlethey had to this debt, and what credit license number they had at the time thatthe debt was purchased or entered into.

I will require this information as soon as possible. Imust advise you that if the information is not forthcoming, it will be reportedto the Court that you are trying to frustrate proceedings and denying me theopportunity to file a defence on this serious matter.

SET ASIDE DEFENCE

I apply for the statutory demand to be setaside as the creditor is aware the debt is in dispute, the originalcreditor failed to comply with its obligations under the Consumer Credit Act,and I believe that the creditor issued this statutory demand as an abuse ofprocess intended to pressure me into paying the full amount of a disputed debtcontrary to the OFT debtcollection Guidelines.

MBNA Account numberxxxx xxxx xxxx xxxx – In dispute

1. CCA section 78 dispute

On the 1st August 2009 I requested by recordeddelivery a copy of the executed credit agreement covering the above MBNAaccount pursuant to the Consumer Credit Act 1974 section 78. I didnot receive anything until February 2010, despite sending further recordeddelivery requests. On 12thFebruary 2010 I received a copy of an application form which was unsigned byMBNA and had prescribed terms which could not be linked to any agreement whichthey claimed I had signed and a set of again unrelated terms andconditions. On the 4th March2010 I wrote to MBNA to advise them that without production of the saidagreement I was unable to assess if I was indeed liable for any alleged debt tothem, nor did it give me any chance to evaluate whether any original agreementwas “properly executed” as required by the Consumer Credit Act 1974.

2. Unfair charges

I continued to pay MBNA whilst waiting for CCA request to befulfilled until December 2009. At thistime I was involved in a divorce and was in financial difficulty. On the 24th January 2010 I wroteto MBNA to advise that I was seeking advice and assistance regarding my currentfinancial difficulties and requested that they hold any action on the accountand that they freeze interest and/or any other charges (at this point I hadstill not had any response to my CCA request). MBNA did not acknowledge my letter andcommenced the addition of default sums and continued the addition ofinterest. These default sums took meover the credit limit on the account at which point MBNA proceeded to add overlimit default sums. They continued toadd these charges until the account went into default on the 30thJune 2010.

3. No default notice received

The account went into default on the 30th June2010. At no point prior to this date did I receive a valid statutory default notice. Byvirtue of a breach of contract and pursuant to s87 (1) Consumer Credit Act 1974the Claimant is required to serve a default notice in the form prescribed byConsumer Credit Default Enforcement and Termination Notices Regulations1983(The Regulations). No notice compliant with the Consumer Credit Act wasserved.

The account was passed to Experto Credite and on the 21stAugust 2010 I wrote to them advising them that this debt was in dispute withMBNA and requested that the account be returned to the original creditor forresolution. This request was notcomplied with. The account is therefore still in dispute.

.............................................................................................................................................................................................................................

I wasnt sure how to finish statement off.

Thanks for your help

CW

 

 

[DonkeyB]

Why send them your defence? No need. Why show your hand?

 

This almost reads like a CPR request – which does not apply here. It will be ignored.

 

Concentrate on the info you have and CAN get within the time. At court, the judge will probably give them time to source documents such as CCA and default notice. The DN will almost certainly be deficient.

[chinawhite1]

Hi thanks for reply, should I just advise the sols that i intend to try and set aside the statutory demand or should i just not contact them at all ?

 

Is the statement for SD okay ??

 

 

 

thanks

[42man]

You seem to be doing pretty well, If it was me in your shoes then I would also send a SAR to the original creditor, I know it is outside the time to respond but as has been often the case, not all the paperwork is usually there, you want the signed agreement if possible, the default notice (to check it is compliant), statements for the duration, any PPI. What usually happens is that the opposing party try to ask for 'time' to produce paperwork, and as has been seen on here, they struggle to find it all.

 

Have a look at this defence, make sure you put in all the high court supporting law, and please try and understand what is being said. There are some variances in the interest rate (good to see you checking them) You might find this link useful - http://www.consumeractiongroup.co.uk/forum/showthread.php?169592#post1830350

 

This thread will help you through the process - http://www.consumeractiongroup.co.uk/forum/showthread.php?379550-Help-!!!!!-I-have-been-served-a-statutory-demand/page4&highlight=bwlegal

 

There is a half decent 6.5 here too - http://www.consumeractiongroup.co.uk/forum/showthread.php?381778-LOwell-Statutory-Demand-old-Egg-debt&highlight=jones

[chinawhite1]

Hi thanks i am looking at all the threads now - its a lot to get your head round !!

 

thanks

 

CW

[chinawhite1]

Hi could I just check something, do the credit card company have to inform you that they are changing your interest rate - because on another card my ex had with mbna they hiked up the rate just out of the blue one month without telling him and when he rang them they basically said they could put the rate up any time they liked to whatever they wanted. Is this right ?

 

thanks CW

[DonkeyB]

You must be informed of a rate change. But I believe your right to pay it off at the lower rate would be subject to paying the minimum amount each month. T&Cs should explain, but the clauses will be buried very deep indeed.

[unclebulgaria67]

Hi could I just check something, do the credit card company have to inform you that they are changing your interest rate - because on another card my ex had with mbna they hiked up the rate just out of the blue one month without telling him and when he rang them they basically said they could put the rate up any time they liked to whatever they wanted. Is this right ?

 

thanks CW

 

They have to give you at least one months notice of an interest rate change, so you have a chance to pay off the account or move balance to another card. There is a new law making this a requirement.

 

It is under a new lending code that they have signed up to. Under this code of practice they

 

Should not.

 

 

• Increase rates in the first year of card membership: providing the card holder has not breached the card's terms and conditions.
  
• Increase rates more than once every six months: providing the card holder has not breached the card's terms and conditions.
  
• Increase rates when a customer is in serious debt: meaning more than two months behind with payments or has asked a not-for-profit debt advice agency to call the provider to inform them of a debt problem.
  

should

 

 

• Give 30 days notice of an interest rate increase: this period allows cardholders time to negotiate on the points above. It should also be enough time for them to close the card and go elsewhere or reject the rate rise , if they want to. Additionally, notification of a change to interest rates is now a requirement under law as well as a guideline.
  

[chinawhite1]

Hi thanks for the info, as this card was taken out in 1994 and the rate changes im referring to are in 2009 am i right in saying I cannot quote the new law? but that they should, even then, have informed of a rate change ? At that time I was actually paying the minimum amount every month so they had no reason that I can see to put rate up just out of the blue.

 

Should I include this info in my statement under the unfair charges para ?

 

 

thanks CW

[unclebulgaria67]

Check with the FOS about this, as sometimes I believe that they will consider any new law or code to have been something that companies should have been doing, as good practice to be fair to consumers. Any new code or law obviously only applies from the date it was introduced and signed up to by companies. But the FOS will often make a decision which is based on a principle of fairness. There may be FSA rules that will apply in regard to fairness, that did apply at the time. e.g Treating Customers Fairly (TCF) which applied from 2008.

 

Obvously we are dealing with a court here, so you could quote legislation, codes of practice or FSA rules that apply, provided you say when they were applicable from. It just gives a picture of the how the credit card company treated you and how the law/regulators have acted in regard to previous bad practice. Remember this is for a set aside, so the judge is only looking at whether there are issues that could only be decided in a normal county court claim process.

[chinawhite1]

Hi thanks for everyones help,

 

apologies if this post is duplicated thought I had posted it once but cant find it now. This is my latest draft of statement so if everyone thinks this is okay ill get on with it asap

 

 

I apply for the statutory demand to be setaside as the creditor is aware the debt is in dispute, the originalcreditor failed to comply with its obligations under the Consumer Credit Act,and I believe that the creditor issued this statutory demand as an abuse ofprocess intended to pressure me into paying the full amount of a disputed debtcontrary to the OFT debtcollection Guidelines.

 

MBNA Account number – In dispute

 

1. CCA section 78 dispute

 

On the 1st August 2009 I requested by recordeddelivery a copy of the executed credit agreement covering the above MBNAaccount pursuant to the Consumer Credit Act 1974 section 78. I didnot receive anything until February 2010, despite sending further recordeddelivery requests. On 12th February 2010 I received a copy of anapplication form which was unsigned by MBNA and had prescribed terms whichcould not be linked to any agreement which they claimed I had signed and a setof again unrelated terms and conditions. On the 4th March 2010 I wrote to MBNA to advise them that withoutproduction of the said agreement I wouldnot have any chance to evaluate whether any original agreement was “properlyexecuted” as required by the Consumer Credit Act 1974.

 

 

 

2. Unfair charges

 

 

 

I continued to pay MBNA whilst waiting for CCA request to befulfilled until December 2009. At thistime I was involved in a divorce and was in financial difficulty. On the 24th January 2010 I wroteto MBNA to advise that I was seeking advice and assistance regarding my currentfinancial difficulties and requested that they hold any action on the accountand that they freeze interest and/or any other charges (at this point I hadstill not had any response to my CCA request). MBNA did not acknowledge my letter andcommenced the addition of default sums and continued the addition ofinterest. These default sums took meover the credit limit on the account at which point MBNA proceeded to add overlimit default sums. They continued toadd these charges until the account went into default on the 30thJune 2010.

 

On checking paststatements there is also a variation in the interest rate with no notification.In October 2009 interest charged was £139.81 but in November this went up to£204.33. This is a jump from a rate of around1.09% to approximately 1.59%. There hadbeen no activity on the account and minimum payments were being made duringthis period. According to paragraph 11bof their terms and conditions MBNA should have advised me of this rise at least30 days before it took effect. I was notadvised of this change in rate and was put at an immediate disadvantage. When I rang MBNA to enquire why the interestrate had changed they advised me that “they could put the interest rate up anytime they liked”. I consider this to beunfair and therefore dispute the total amount owed.

 

 

 

 

 

3. No default notice received

 

The account went into default on the 30th June2010. At no point prior to this date did I receive a valid statutory default notice. By virtue of abreach of contract and pursuant to s87 (1) Consumer Credit Act 1974 theClaimant is required to serve a default notice in the form prescribed byConsumer Credit Default Enforcement and Termination Notices Regulations1983(The Regulations). No notice compliant with the Consumer Credit Act wasserved.

 

 

 

The account was passed to Experto Credite and on the 21stAugust 2010 I wrote to them advising them that this debt was in dispute withMBNA and requested that the account be returned to the original creditor forresolution. This request was notcomplied with. The account was thenassigned to Aktiv Kapital. I have notreceived a notice of assignment confirming this.

Edited March 15, 2013 by chinawhite1

[chinawhite1]

SORRY !!!

 

ive had a rethink and revised - yet again, any comments welcome many thanks.

 

 

I apply for the statutory demand to be set aside as the creditoris aware the debt is in dispute, the original creditor failed to comply withits obligations under the Consumer Credit Act, and I believe that the creditorissued this statutory demand as an abuse of process intended to pressure meinto paying the full amount of a disputed debt contrary to the OFT debt collection Guidelines.

The defendant refers to the Code Of Conduct stated bythe Credit Service Association

 

The code of conduct clearly states

 

Every member shall:

a conduct its business in compliance with all relevant legislation,

regulations, regulatory guidance and requirements and this Code of

Practice

 

v when an account is reasonably disputed or a complaint is received,

suspend collection activity and investigate and where applicable

refer the matter to their client

 

aa treat debtors fairly and not subject debtors (or their authorised

representatives) to aggressive practices, or conduct which is

deceitful, oppressive, unfair or improper, whether lawful or not

1. a) Conduct its business lawfully, comply with

all relevant UK legislation, regulation

and judicial decisions and trade fairly and

responsibly.

 

 

Office Of Fair Trading

 

3 UNFAIR OR IMPROPER BUSINESS PRACTICES

 

e. When seeking to recover a debt, failing to take appropriate steps with aview to ensuring that available data/information to inform the pursuit andrecovery of a debt is accurate and adequate, such that the debtor and the(amount of the) debt can be correctly identified from that data/information

 

• a person being pursued for an incorrect amount.

 

f. failing to ensure that an accurate and adequate history of the debt ispassed between parties, as appropriate and necessary

 

n. making undue, excessive or otherwise inappropriate use of statutorydemands when pursuing arrears or debt

 

 

 

 

 

 

 

 

 

MBNA Account number – In dispute

CCA section 78 dispute

On the 1st August 2009 I requested by recorded deliverya copy of the executed credit agreement covering the above MBNA accountpursuant to the Consumer Credit Act 1974 section 78. I did not receive anything until February2010, despite sending further recorded delivery requests. On 12thFebruary 2010 I received a copy of an application form which was unsigned byMBNA and had prescribed terms which could not be linked to any agreement whichthey claimed I had signed and a set of again unrelated terms andconditions. On the 4th March2010 I wrote to MBNA to advise them that without production of the saidagreement I would not have any chance toevaluate whether any original agreement was “properly executed” as required bythe Consumer Credit Act 1974.

Unfair charges

I continued to pay MBNA whilst waiting for CCA request to befulfilled until December 2009. At thistime I was involved in a divorce and was in financial difficulty. On the 24th January 2010 I wroteto MBNA to advise that I was seeking advice and assistance regarding my currentfinancial difficulties and requested that they hold any action on the accountand that they freeze interest and/or any other charges (at this point I hadstill not had any response to my CCA request). MBNA did not acknowledge my letter andcommenced the addition of default sums and continued the addition ofinterest. These default sums took meover the credit limit on the account at which point MBNA proceeded to add overlimit default sums. They continued toadd these charges until the account went into default on the 30thJune 2010.

On checking paststatements there is also a variation in the interest rate with no notification.In October 2009 interest charged was £139.81 but in November this went up to£204.33. This is a jump from a rate ofaround 1.09% to approximately 1.59%. There had been no activity on the account and minimum payments werebeing made during this period. Accordingto paragraph 11b of their terms and conditions MBNA should have advised me ofthis rise at least 30 days before it took effect. I was not advised of this change in rate andwas put at an immediate disadvantage. When I rang MBNA to enquire why the interest rate had changed theyadvised me that “they could put the interest rate up any time they liked”. Iconsider this to be unfair and therefore dispute the total amount owed.

 

 

 

No default notice received

 

 

it is also drawn to the courts attention that no defaultnotice required by s87 (1) Consumer Credit act 1974 has been provided

It is denied that any Default Notice in the prescribed formatwas ever received and the Defendant puts the Claimant to strict proof that saiddocument in the prescribed format was delivered to the defendant

Notwithstanding the above points, I put the claimant tostrict proof that any default notice sent to me was valid. I note that to bevalid, a default notice needs to be accurate in terms of both the scope andnature of breach and include an accurate figure required to remedy any suchbreach. The prescribed format for such document is laid down in Consumer Credit(Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)and amendment regulationsthe Consumer Credit (Enforcement, Default and Termination Notices) (Amendment)Regulations 2004 (SI 2004/3237)

Service of a default notice is a statutory requirement aslaid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes itclear that a default notice must be served before a creditor can seek toterminate the agreement or demand repayment of sums due to a breach of theagreement. therefore without a valid default notice, I suggest the claimantscase falls flat and cannot proceed and to do so is clearly contrary to theConsumer Credit Act 1974

Failure of a default notice to be accurate not onlyinvalidates the default notice (Woodchester Lease Management Services Ltd vSwain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract whichwould not only prevent the court enforcing any alleged debt, but give me acounter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER119

The account was passed to Experto Credite and on the 21stAugust 2010 I wrote to them advising them that this debt was in dispute withMBNA and requested that the account be returned to the original creditor forresolution. This request was notcomplied with. The account was thenassigned to Aktiv Kapital. I have notreceived a notice of assignment confirming this.

Edited March 15, 2013 by chinawhite1

[chinawhite1]

OOOPs can any of the site members remove the account number from my posts please - didnt remove it after copy and paste !!!

 

thanks

[chinawhite1]

Sorry

 

have just realised can edit my own posts ! im an idiot !

[The Mould]

You are not an idiot my dear fellow.

 

So far, your response to this Statutory Demand appears to be correct in law.

 

Failure of a creditor to respond to hios debtor's CCA request = no enforcement action can be taken, further, a reconstituted copy of alleged credit agreement served in response to CCA request is sufficient for said CCA request, but insufficient for enforcement proceedings.

 

Further, failure of a creditor to serve a valid statutory default notice upon his debtor pursuant to sec 81 CCA 1974 (as amended) will result in the creditor being denied any enforcement action commenced by him.

 

Kind regards

 

The Mould

[chinawhite1]

Hi

 

having done my witness statement I am now filling in form 6.5 ,can anyone offer any help - 1a, name and address and description of person ? what do i put for description ??

 

also, do I put that I do not admit the debt because .... and then put because debt in dispute ????

 

also, my statement is on a separate piece of paper , do i put on the 6.5 details attached ??

 

many thanks.

[chinawhite1]

Sorry but am waiting to take to the court, just need to know what I put in section 2 of form 6.5 - Do I just write in that the debt is in dispute and then put statement attached ??

 

Thanks..

 

CW

[caro]

I've alerted the site team that you need help, but in the meantime perhaps you could look at some of the success threads for some pointers.