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

[The Mould]

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.

 

Hello there Chinawhite

 

Adopting your above paragraphs;

 

Para 1, description = simply describe as to your capacity in this matter - i.e a Mother of xyz children acting in person in these proceedings.

 

As regards to above para 2 - yes;

 

As regards to above para 3 - again, yes and ensure all details - claim no. account no. etc are entered on your separate A4 sheet (each pg) at the top right hand corner - in the header and that each page number is entered in the right -hand section of each page in the footer area.

 

Kind regards

 

The Mould

[42man]

You refer to the Code Of Conduct which they have breached in Line with CPUTR2008 (That is The Consumer Protection From Unfair Trading Regulations 2008) not the Consumer Credit Act.

 

With regards to the agreement then you should back it up with High Court Law (which a lower court should abide by)

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act 1974 see attachment 1 (attachment 1will be your CCA request along with your proof of postage)

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

The Consumer Credit Act in section 78(6) States that

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement;

 

The claimant refers to the authority of Jones vs Link Financial - [2012] EWHC 2402 (QB)

 

"This is not because he becomes under a contractual obligation to perform those duties, but rather because he cannot assert his rights under the regulated credit agreement without accepting the statutory obligation to perform duties under the 1974 Act relating to enforcement of those rights. "

 

"I agree with Professor Guest that this would apply to the statutory duties under ss.77, 78 (duty to give information to the debtor), ss.76, 87, 98 (duty to serve enforcement, default and termination notices), s.97 (duty to supply settlement figure), s.103 (duty to provide termination statement)"

 

"In my judgment the "duties" referred to in section 189 are therefore those statutory duties under the 1974 Act which the assignee has to perform in order to enforce his assigned rights. These duties have "passed by assignment" in the sense that it is by reason of the assignment that the assignee becomes obliged to fulfil them"

 

For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007.

 

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

(a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007.

 

REFERENCE TO CASE LAW

 

1. As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:
   ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest[.’
   

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

[42man]

Your argument about the interest rates is weak in my opinion, you should check the interest rates claimed in the alleged agreement match up to what the interest rate figure is on the statements.

 

The defendant also refers to

 

PHOENIX RECOVERIES (UK) LTD SARL v DEVENDRA KOTECHA (2011)

 

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Patten LJ) 26/1/2011

A creditor had failed to satisfy a debtor's request under the Consumer Credit Act 1974 s.78(1) for a copy of a credit card agreement as it had not, on the evidence, included the original, actual terms and conditions in respect of interest rates then in force. The creditor was, accordingly, not entitled to proceed to enforce the debt under s.78(6).

 

"Interest rates were a term of central importance in credit card agreements. There was a strong case that the interest charges which would have been specified in the terms and conditions when B and K made the agreement in 1998 were those in the leaflet and not those which appeared in P's evidence. Under s.78(1), a creditor was required to set out the actual, original terms and conditions of the agreement at the time it was made. In those circumstances, P had not proved that that obligation was satisfied, and it was therefore not entitled to progress to enforce the debt against K under s.78(6)."

[42man]

This for the CPUTR2008 point

 

The defendant also wishes to make known the statutes in the Consumer Protection From Unfair Trading Regulations 2008, and believes that the alleged creditor is in multiple breach of statute

 

Offences relating to unfair commercial practices. A trader is guilty of an offence if he engages in a commercial practice which is a misleading action under regulation 5 otherwise than by reason of the commercial practice satisfying the condition in regulation 5(3)(b).

 

Which clearly state...

 

Misleading actions

 

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

(3) A commercial practice satisfies the conditions of this paragraph if—

(b)it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

(i)the trader indicates in a commercial practice that he is bound by that code of conduct,

 

Interpretation.—(1) In these Regulations—“average consumer” shall be construed in accordance with paragraphs (2) to (6);“business” includes a trade, craft or profession;“code of conduct” means an agreement or set of rules (which is not imposed by legal or administrative requirements), which defines the behaviour of traders who undertake to be bound by it in relation to one or more commercial practices or business sectors;“code owner” means a trader or a body responsible for—(a)the formulation and revision of a code of conduct; or(b)monitoring compliance with the code by those who have undertaken to be bound by it;

 

“trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trade

 

The defendant refers to the Code Of Conduct stated by the Credit Service Association of which Lowells are a member -

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

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 a view to ensuring that available data/information to inform the pursuit and recovery 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 is passed between parties, as appropriate and necessary

 

n. making undue, excessive or otherwise inappropriate use of statutory demands when pursuing arrears or debts

 

Comply with this Code of Practice and

follow any guidance notes issued by the

Board of the AssociationPublished by the Office of Fair Trading

[The Mould]

Further to the execellent advice posted here for you by 42man, I would also advise you to refer to the Court of Appeals' decision in Brandon v Amex (research this case) in respect of your invalid default notice argument.

 

Kind regards

 

The Mould

[chinawhite1]

Hi thanks so much for all your help and fantastic points.

 

Forms now delivered to court so will keep you informed as to the outcome.

 

I really appreciate all the advice and support from you all.

 

Many thanks. CW

[chinawhite1]

Hi just a quick question, will I get notification in writing of what the outcome of set aside forms was ? or do i have to ring the court ?

 

also, i have another case going through the small claims court today to which I sent in a statement as i was on jury duty, how will i be advised of outcome of this

 

thank you CW

[42man]

You will get a date for a hearing usually within the next couple of months, if you do then you should attend to fight your corner and claim your costs.... There has been the very odd occasion where a judge will make a judgment to set aside in writing without a hearing, but I have only ever heard of this happening on one occasion.

[chinawhite1]

Hi all

I have finally received the documents from my SAR request to MBNA. There is no mention or copy of any default notice that I can see so I guess thats good news for me ??

 

My case is due to be heard on Wednesday next week, I have the witness statement that I sent to the court, do I need to take/do anything else

 

Thanks. CW

[42man]

Just know your stuff and don't be bullied....you might like to have a read of this - http://www.consumeractiongroup.co.uk/forum/showthread.php?387645-Cabot-issuing-statutory-demand-via-stewart-barnes-Aqua-Card-debt&p=4231432#post4231432

[chinawhite1]

Hi Thanks 42man, have just read through the link, will do a timeline to jog my memory ! and re read witness statement. I will also look our for their solicitor and be wary !

Am going on my own so am dreading it but am determined not be be intimidated. MBNA are lowlife and have caused me nothing but stress.

 

Could i just check something - on the SD it states in notes for creditor that part c should contain details of original creditor and any intermediary assignees - part c only states orginal creditor mbna then assignee Aktiv Kapital - on correspondence from experto creditefrom 2010 it states that varde investments are now legal owner of account and they experto credite have been apponted to recover sums - i just wondered if this is worth pointing out to judge ??

 

thanks CW

[DonkeyB]

Yes, their application is flawed in that case. Looks like Varde sold it on to AK.

[chinawhite1]

Hi

have just returned from court - AK had submitted a letter via their solicitors , Wright Hassell (does anyone else see the irony in that name !!!) saying that as the debt was assigned they needed 12 weeks to get paperwork and so they would consent to demand being set aside ! so judge just said righto , I order it to be set aside - he did go on to say that it was an abuse of the judicial process and the courts to which I replied that yes It was and I was really quite indignant at being there to which he agreed !

 

He asked if I had any costs but I hadn't prepared any costs because was too stressed with the whole thing to even think about that . When I told the judge this he positively insisted that I submit some and ordered them to pay me £50 !!!!!!!!! - I will await their next move !

 

I would like to say thanks to everyone for all the help and advice I have received, I couldn't have done it without you - have donated a small amount to the site via paypal.

 

Thank You

 

CW

[DonkeyB]

Great! Get a complaint in to the OFT asap, and Trading Standards. Also a formal complaint to AK, and see what hogwash they come back with.

[DonkeyB]

Moreover, they could have agreed to the set aside before any hearing and saved the expense. Shame judges don’t actually do anything about abuse of process.

[caro]

Hi

have just returned from court - AK had submitted a letter via their solicitors , Wright Hassell (does anyone else see the irony in that name !!!) saying that as the debt was assigned they needed 12 weeks to get paperwork and so they would consent to demand being set aside ! so judge just said righto , I order it to be set aside - he did go on to say that it was an abuse of the judicial process and the courts to which I replied that yes It was and I was really quite indignant at being there to which he agreed !

 

He asked if I had any costs but I hadn't prepared any costs because was too stressed with the whole thing to even think about that . When I told the judge this he positively insisted that I submit some and ordered them to pay me £50 !!!!!!!!! - I will await their next move !

 

I would like to say thanks to everyone for all the help and advice I have received, I couldn't have done it without you - have donated a small amount to the site via paypal.

 

Thank You

 

CW

 

Pleased for you china.

 

I think you must be somewhere near me as wright hassall are based locally and the name has always amused me.

[chinawhite1]

Thank you Caro

 

I'm actually nowhere near where their address is - it surprised me at the time the letter was delivered to me that the guy had travelled a considerable distance to deliver it - must have been a "wright Hassall" for him !!!!!!!!!

[chinawhite1]

Donkey B -- can you point me in the direction of any template letters etc for OFT and trading standards to get me started ??

 

Thanks CW

[quails]

Congratulations! A supportive Judge makes all the difference. I do think Wright Hassall are very aptly named too!

[Poppay2]

Hi Chinawhite

Same thing here with Rite Hussell they also asked for adjournment, my heart sank as I thought had to wait another 8 weeks, but I stuck up for myself and asked that the adjournment not be granted, as I beleived they had sufficient time to prepare and that there was no CoCA and I had a letter stating that dated nearly 2 yrs ago and that the SD was an improper use of the insolvency procedure.

I won, SD set aside and costs of £30 awarded to me.

Yay for CAG.

Will also make a donation when payday comes.

[chinawhite1]

well done poppay 2

 

after the judgement i received a letter with a copy of the letter they had sent to the court, their letter to the court said that as i had asked for documents under s78 they needed time to get these from original lender and would contact me when they have them - i have had no documentation sent to me from them - today i have received a county claim court form !!!!!!!!!!!!!!!!!! I will send my defence in but I just wondered if they can lodge a claim with the court without having sent me any cca, default notice or answered my interest rate dispute ??

 

thanks CW

[postggj]

If this matter has already been in front of a circuit judge , now a county court claim

 

The judge is not going to me impressed

 

This in a sense is a second form of litigation, two bites at the cherry

 

I am at a loss to advise as one claim was a bankruptcy petition, the second is a claim under a different form of contract, but are directly linked by the same cause, that being an assigned debt and the same claimant.

As a rule CPR 38.7 would come into play, but i do not have enough knowledge to advise on this being one claim was bankruptcy, the second debt, be it all done under the county court roof

 

I will be interested in what procedure the claimant can bring further litigation after getting there knuckles rapped

 

Can you type out the claimants particulars of claim on this new court claim

 

JUST GONE OVER THE THREAD AGAIN

 

HAVE YOU BEEN TO COURT OVER THE BANKRUPTCY PETITION

 

IS IT STILL GOING ON

 

HAS IT BEEN SET ASIDE

 

IS THIS NOW A NEW COUNTY COURT CLAIM

[42man]

What are the particulars of the claim ? (don't be too specific with dates, numbers etc). I also suggest sending the CPR31.4 - have a read here - http://www.consumeractiongroup.co.uk/forum/showthread.php?159445-Getting-Them-To-Reveal-Their-Vitals.-Using-CPR-31.14-to-Your-Advantage

 

I suggest you stick to the timetables, and you must mention your set aside of the demand too. However as has been said on here on a few occasions, judges have said that the debts chased under the insolvency laws can still be pursued under county court claims, so you still may have a battle on your hands....

[chinawhite1]

hi squaddie

yes went to court for SD and it was set aside and it is now a county court claim I will post particulars of claim if my very temperamental computer allows !

[chinawhite1]

claimant - aktiv capital portfolio

solicitors - right hassle

particulars - the claimant is an assignee of the following debt notice of assignment having been given in writing (ive never had this)

UK series £xx,xxx account no xxxxxxxx - despite demands for payment the above sum remains due - claimant therefere claims the sum of £xx,xxx interest due under s.69 and costs