Claim form received from Drydens - MBNA debt poss faulty DN?

[The Mould]

Thank you Tony.

 

A county Court Judgement will only be entered against you if you accept the claim or fail to Defend the same.

 

The invalid default notice does not extinguish the debt, but it does deny the creditor any right to proceed to enforce the credit agreement.

 

The creditor has terminated the agreement, in my opinion he must reinstate the agreement and serve a valid default notice on you, in such circumstances, you can argue agreement no longer live or agree to reinstatement and comply with the required remedy on the new default notice.

 

If I was in your position, although I do not dispute the debt, which I would never admit to in writing, I would rely upon invalid default notice, contend that creditor is contract breaker and rely upon all the authorities I have posted here for you and argue non-compliance with s.61 CCA 1974, therefore, agreement is unenforceable in accordance with Wilson v First County Trust House of Lords.

 

The decision is yours to make.

 

Kind regards

 

The Mould

Edited October 11, 2013 by citizenB
replaced broken link

[tony3x]

Thanks Mould, I know I am taking a chance but what you have said certainly makes me feel better.

 

As the agreement was terminated by MBNA, not Arrow, I am right in assuming that they could not re instate it as they no longer own it and Arrow could not as I never had an agreement with them in the first place. I think it will be statute barred in a couple of years so would love to be able to hang out if that is the case.

 

I have looked all the cases you have posted and must admit some of it goes over my head, but seem to get the gist of things with the Wilson case.

 

Do I compose a letter in general terms stating my defence or is there a format to follow.

[citizenB]

Thanks Mould, I know I am taking a chance but what you have said certainly makes me feel better.

 

As the agreement was terminated by MBNA, not Arrow, I am right in assuming that they could not re instate it as they no longer own it and Arrow could not as I never had an agreement with them in the first place. I think it will be statute barred in a couple of years so would love to be able to hang out if that is the case.

 

I have looked all the cases you have posted and must admit some of it goes over my head, but seem to get the gist of things with the Wilson case.

 

Do I compose a letter in general terms stating my defence or is there a format to follow.

 

 

You are correct, if the creditor has terminated the agreement, there is nothing to issue a new/revised DN on unless the agreement is "unterminated" and that would need your acceptance!

[citizenB]

their letter implies that Judgment has been won in their favour! Surely that is very misleading?

[tony3x]

I have put this together to put on the N9B. Thoughts please.

 

Statement of Defence

 

I believe that enforcement should not be allowed as the Default Notice that was served on 9th April 2010 is in breach of Section 87(1) of the Consumer Credit Act 1974 for the following reasons:

 

1) On the 25th August 2009 a request was made to MBNA, under Section 78 of the Consumer Credit Act 1974 for a copy of the original credit agreement. A reply was received dated 3rd November 2009 that contained the following;

(i) A copy of the executed agreement

(ii) Up to date terms and conditions

(iii) Copy of the most recent statement

 

This is when the first breach occurred as Section 78 (1) of the Consumer Credit Act 1974 states

 

“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”

 

In this case the any other document would be the original terms and conditions that were applicable at date of the application and mentioned on the credit agreement.

 

Section 78 (6) Consumer Credit Act 1974 states that

 

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;

Copies of the ‘original’ terms and conditions were sent on 11th April 2011

 

2) The Default Notice is dated the 9th April 2010 (Friday) and states that the full amount of the outstanding balance is due by the 26th April 2010. This does not allow the statutory 14 days for remedy as;

(i) The date of service if by first class post would be deemed as being 2 working days after posting therefore 13th April 2010 thus the balance would be due by 27th April 2010.

(ii) If sent by second class post the date of service would be deemed as 15th April thus the balance would be due by the 29th April 2010.

[tony3x]

Any advice on this please. I need to get it off to the court.

 

thanks

[AndyOrch]

Any advice on this please. I need to get it off to the court.

 

thanks

 

Requires some serious tweaking Tony...reads like a Witness Statement.

 

Andy

[tony3x]

Thanks Andy,

first time at this so not really sure how to set it out.

 

I will have to have a look at some other defences.

[AndyOrch]

Here is one of mine as an example of draft :-

 

####DEFENCE:#####

 

1. Paragraph 1 is not admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with the Claimant as the Defendant did not enter into any Agreement with the Claimant.

2. Paragraph 1 is not admitted with regards to the Claimant terminating the alleged contractual Agreement as the Defendant did not enter into any Agreement with the Claimant.

3. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

6. On the alternative, the Agreement referred to in paragraph 1 was improperly executed contrary to Section 61(1)(a) of the Consumer Credit Act 1974 ('the Act').

7. The Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that it was improperly executed as set out above and by reason of Section 65(1) of the Act.

8. Further, by reason of the fact that there is no document which has been signed by the Defendant containing a correct statement of the amount of the credit under the Agreement, and by reason of Section 127(3) of the Act, the Court has no power to make an enforcement order in respect of the Agreement because a term stating the amount of the credit is a prescribed term for the purposes of Sections 61(1)(a) and 127(3), prescribed by the Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and paragraph 2 of Schedule 6.

9. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

 

Put their Particulars into paragraphs and number them and respond to each number.

 

Regards

 

Andy

[tony3x]

Hi guys, just trying to get my head round this as I have until friday to post defence.

 

I am a bit confused by the deemed service dates as CPR 6.26 states

 

The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or

if not, the next business day after that day.

 

Now my DN is dated on a friday (9th) so does that mean service date is the monday or the tuesday, assuming first class post. If it is the Monday the remedy date is 14 days (26th) but if it is the tuesday or 2nd class it falls outside the 14 days. I am thinking that I may be done on this.

 

I know Mould & DX think its ok but after reading Brandon & Harrison I am not so sure. please try to put me out of my misery.

 

thanks

[tony3x]

Thanks Andy, just seen your after I posted my last bit. Will work on this tomorrow

[The Mould]

Hi guys, just trying to get my head round this as I have until friday to post defence.

 

I am a bit confused by the deemed service dates as CPR 6.26 states

 

The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or

if not, the next business day after that day.

 

Now my DN is dated on a friday (9th) so does that mean service date is the monday or the tuesday, assuming first class post. If it is the Monday the remedy date is 14 days (26th) but if it is the tuesday or 2nd class it falls outside the 14 days. I am thinking that I may be done on this.

 

I know Mould & DX think its ok but after reading Brandon & Harrison I am not so sure. please try to put me out of my misery.

 

thanks

 

If posted on Friday by 2nd class, then date of service would by the Thursday.

 

Please refresh my mind on this DN matter, date of DN letter and the wording contained therein as regards what you are required to do in order to remedy breach stated therein and the time-scale upon which you must remedy the same.

 

Kind regards

 

The Mould

[tony3x]

Hi Mould,

Copy of DN here

 

 

thanks

[Guest]

one poss 'minor' non compliance re underlined text; the text (lettering) underlined should be different in form to the rest of the text in its paragraph. see the default notice regs. para 5 (b). ie 'yet more prominence'

also, afaik, the cpr rules re service are re service of docs sent once litigation has started. otherwise is the 'normal' deemed rules re postage?

is that enough to rely on? don't know, check with others.

was it first or second class?

Edited October 17, 2013 by Ford

[Guest]

DN regs Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.pdf‎

[dx100uk]

surely Harrison applies here

 

we know that MBNA use UKMAIL

if that env had a big S that's 2nd class

 

takes 5 days to get into Royal mail

and 4 days to deliver.

 

even if it was 1st class ukmail that still takes 2 days to even get to RM delivery

 

dx

[Guest]

yes, as you say, but can it be shown in court that it was second class? or was thirdparty mail, and that it takes x days (whether first or second) to get into royal mail?

[tony3x]

Thanks guys,

Unfortunately I do not have the envelope. Back then I did not realise the importance.

 

I am sure that I read somewhere that the creditor has to have a record of whether it was 1st or 2nd class.

 

My issue is whether Saturdays are included. If so the 2nd day (if 1st) would be the Monday.

[Guest]

cred should have a record (log) of things issued (sent) and things in. have you previously done a sar on this? that usually throws up their logs. for court, they'll prob then have to do a statement re their postage.

yes, get them to prove compliance

Edited October 17, 2013 by Ford

[tony3x]

No SAR yet.

Is it worth doing one now?

 

need to get working on this now as I would like to file tonight, tomorrow latest.

[tony3x]

Guys, what about this for wording:

 

*****DEFENCE*****

 

1) Paragraph 1 is not disputed

2) Paragraph 2 is not disputed however the Default Notice served is defective as follows;

 

(i) The Default Notice is dated the 9th April 2010 (Friday) and states that the full amount of the outstanding balance is due by the 26th April 2010. This does not allow the statutory 14 days for remedy as;

 

(a) The date of service if by first class post would be deemed as being 2 working days after posting therefore 13th April 2010 thus the balance would be due by 27th April 2010.

 

(b) If sent by second class post the date of service would be deemed as 15th April thus the balance would be due by the 29th April 2010.

 

(ii) A request under section 78 of the Consumer Credit Act 1974 had not been fully complied with as section 78 (1) states;

“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”

 

In this case the any other document would be the original terms and conditions that were applicable at date of the application and mentioned on the credit agreement and not recieved.

 

Section 78 (6) Consumer Credit Act 1974 states that

 

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;

[dx100uk]

yes, as you say, but can it be shown in court that it was second class? or was thirdparty mail, and that it takes x days (whether first or second) to get into royal mail?

 

i'm sure the info regarding this is in the Harrison case.

 

dx

[marylikes]

Section 7 of the Interpretation Act 1978 may help you out.

http://www.legislation.gov.uk/ukpga/1978/30/section/7

 

7 References to service by post.

 

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

I'm researching this very thing myself

[Guest]

i'm sure the info regarding this is in the Harrison case.

 

dx

 

am with you hopefully things can be presented accordingly, and not distinguished.

[MandM]

Hi,

 

Is the amount claimed on the DN the full account amount? If so, should your emphasis not be more on this than the date issue?

 

Sorry if I've missed it earlier in your thread, I did have a quick read through but couldn't see it mentioned.

 

DN should be for the arrears, not the full account otherwise it makes the DN pointless.

 

Mike