MBNA/Restons CCJ (forgot to file defence) now have CO too, - want to set aside - CCA is pants!!

[DonKichote]

I have filled in an acknowledgement of service to a claim by MBNA represented by Restons,

 

where POA states:

“

The claimant claims payment of overdue balance due from the defendant under a contract dated on or about xx/xx/xxxx in the sum of £xxxx.xx (£5K+) inclusive of interest to the date of this summons at 8% per annum from xx/xx/xxxx to xx/xx/xxxx.

Particulars a/c no: xxxxxxxxxxxxxxxx

 

DATE ITEM VALUE

Xx/xx/xxxx Default Balance £xxxx.xx (over 5K)

Post Refrl Cr NIL

Later date xx/xx/xxxx Interest xx.xx

Total: XXXX:XX

Together with:-

Interest pursuant to s69 County Courts Act 19

At the rate of xxx.xx per day to the date of Judgement or sooner payment”

 

Prior to filing an embarrassed defence, I now wish to make a CPR 31.14 request to Restons for:

 

1 the agreement

 

2 the default notice (All I had was Notice of Sums in Arrears, a letter saying that failure to pay will result in registration of default with CCA.

Then they wrote and said a default is due to register for 6 years on my credit file and when this happens balance of the a/c WILL BE SOLD to a Third Party.

 

This does not seem to have happened as MBNA are the Claimant, all I had was a much older try-on from RMA)

 

3 the assignment??

 

and perhaps for

4 DPA??

 

As not all were mentioned on POA,

would you agree?

Anything else?

[jason_mnm]

Interest pusuant to s69 is not allowed for CCA 1974 agreements as far as i know...

 

Also you can look at http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

and http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

Edited January 24, 2010 by jason_mnm

[DonKichote]

Thank you jason mnm, I intend to send a CPR31.14 request for agrement and default notice to Restons tomorrow, unless anybody suggests including anything elseanything else.

 

Is a creditor required to confirm termination of the account or is the intention to do so on a future date given in DN sufficient?

 

bump

[diddydicky]

under CPR31.14 you can only request documents mentioned or referred to in the POC therefore

 

if the default notice is not mentioned in the POC then you cannot ask for it under 31.14

 

you will need to make a separate cpr18 request for any documents not mentioned in the POC

 

 

you do need to ask for a full account of how the amount in the POC has been arrived at

[DonKichote]

weel spotted, thank you diddydicky

 

Should I request anything else under Part 18 ???

 

bump

[diddydicky]

Should I request anything else under Part 18 ???

 

you can ask for any documents that you feel may be useful to your defence but resist the temptation to ask for loads of stuff that is not relevant

 

Copies of any default, termination or other notices relied upon

 

Copy of an communications logs showing manual interventions in your account

 

Full details of all charges added to the account since its inception with the dates applied and reasons

 

is about it i think

 

 

make the request as above- dont single out the default notice in particular

 

also if you have not done so get a SAR off to the OC right away (10 quid recorded and SIGN it- put a wavy line through the middle of your signature if you wish)

 

you dont want any delays in getting that information

[DonKichote]

Apologies for my ignorance, what is OC (for subject access request)??

[diddydicky]

sorry

 

OC = Original Creditor

 

DCA = Debt Collection Agency

 

CRA Credit Reference Agency

[supasnooper]

I'd advise that you read this thread as well - http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

[DonKichote]

MBNA have sent me most of the documents requested. I believe the agreement is faulty, one does not have my signature on, the one for the other card does not contain the prescribed terms. They arrived a week ago and I did not get my defence in time. Judgement was entered against me on Monday. What can I do now????

 

bump

[supasnooper]

You'll need to apply to get the Judgment set aside.

 

have a look at the links below -

 

Setting Aside a CCJ -

 

A Guide To Setting Aside CCJ's You Never Received

CCJ removal inc. step by step guide

Applying for a Set-aside

Spamalot - CCJ and interest on debt. ***WON***

Setting aside the original CCJ of your CCA

[DonKichote]

Thank you supasnooper

[supasnooper]

Please do take note that Judges do like to Set Aside applications to be made within 28 days of Judgment.

[DonKichote]

Thanks for that tip supasnooper, I will get on with it as soon as the order comes through the post.

[DonKichote]

Pre-2007 agreement. Received as a result of CPR request, together with separate current and original T&C docs. It looks to me as it may be unenforceable under s127(3), can anyone confirm why, with reference to regulations?

 

bump

[citizenB]

The question is - why do you consider it to be unenforceable.

 

Tell us a little more about it for a start.

 

If it is as illegible IRL as it appears in the pdf then that would certainly be one reason and the regulation for that would be..

 

 

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

 

Regulation 2 states:

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature be easily legible and of a colour which is readily distinguishable from the .

 

Are the terms and conditions provided those you recall from inception ?

[DonKichote]

CitizenB, I am thinking of the apparent lack of creditor signature and the T&C being separate

 

Sorry honeybee13, I am losing hope and clutching straws here

 

CitizenB, the writing is just about legible, apart from the creditor signature area which looks like typexed out

 

CitizenB, I cannot remember the T&C being the ones received, the original ones are in the same font, I can upload them if it helps

[citizenB]

Righto, well sadly the lack of creditor signature means nothing and it can be rectified. Now had it been missing yours, that would have been a different story.

 

When was the agreement entered into - who with - is in default - are you still paying toward it ?

 

Does it look as though the terms and conditions are part of the original document ? Obviously the current ones wont be - but if you look at those they say you received at inception you might find discrepancies .. it has been known for reconstructions to carry telephone numbers or addresses that weren't relevant/in use at the time. Devil in detail as they say

[honeybee13]

Sorry honeybee13, I am losing hope and clutching straws here

 

No problem, I know how it feels to be stressed. The guys here will help you, as CB already is.

 

Hugs, HB

[DonKichote]

CitizenB, the Customer Satisfaction line differ between agreement and the alleged otiginal T&C, would that be a defence? If so, what regulation would be breached?

[renegadeimp]

Wow. Reading that copy reminds me of downing a load of alcohol on a friday night.

[citizenB]

CitizenB, the Customer Satisfaction line differ between agreement and the alleged otiginal T&C, would that be a defence? If so, what regulation would be breached?

 

Erm, sorry don't understand.. yes, please if you are able to upload the original T & C, that would be great

 

Please be aware that I am not an expert on these documents.. so I will do my best and if necessary try and find someone who might know a little more about these. I think this might be an MBNA agreement, yes ?

[DonKichote]

Citizenb, I meant the phone numbers are different, going about uptloading now

 

[ATTACH=CONFIG]46399[/ATTACH][ATTACH=CONFIG]46400[/ATTACH][ATTACH=CONFIG]46401[/ATTACH][ATTACH=CONFIG]46402[/ATTACH]

 

Citizenb, it is MBNA, sold on, default judgement, charging order, deferred Order for Sale. I need a solid defence to have a hope on undoing it all. Agreement in 2005.

 

CitizenB, it looks as if the T&C are not part of the agreement beacause the phone numbers are different. what regulation is breeched so that s127(3) could kick in?

 

CitizenB, anyoone else?

 

Would I be right to say that CCA 1974 s61(1)(b) is breached as the agreement does not embody all the terms other than implied (ie T&C), therefore it is not properly executed, so under s127(3) cannot be enforced in court ???

 

honeybee13, any ideas ?

 

bump

 

Anyone else?

 

 

 

bump

[Ganymede]

Citizenb, it is MBNA, sold on, default judgement, charging order, deferred Order for Sale. I need a solid defence to have a hope on undoing it all. Agreement in 2005.

 

 

 

 

Woah, is there another thread relating to this issue on here as you've just dropped a massive bombshell there.

 

When was the default CCJ issued against you?

 

Did you oppose the Charging Order?

 

Have you made any applications to Court previously?

 

Thanks.

[Alloyz1]

It may just be me but I cannot read the T&C as you have uploaded them too small, you need to upload same as first set. Plus I cannot see where you have uploaded the agreement?