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

[Guest]

good point.

yes, the amount on a dn must be accurate (woodchester case)

 

it seems that they are relying on the term re the whole balance (rather than the usual min payment term/arrears) as they mention in the dn

(they have to specify which term has been breached and what needs to be done to rectify that breach).

 

need to double check that term they rely on,

whether compliant re a dn, etc?

 

does harrison also address this issue?

Edited October 18, 2013 by Ford

[MandM]

The '8f' term is mentioned on many mbna DNs. Sometimes it does exist. But whether or not it does shouldn't matter as that means mbna would be allowed to introduce a term that overides Sec 87 IMO.

 

If the defence used is the one posted previous then it does mention that they have claimed the full amount - although the emphasis is on the dates issue......but it is mentioned . So should be fine.

 

Hopefully someone with better knowledge than me can confirm this.

 

Mike

[tony3x]

I think that '8f'' covers them on this as it states

 

-you or your legal representative must pay the whole balance if

the agreement ends

you fail to make a payment in full when it is due

you break an important part of this agreement or repeatedly break this agreement and fail to sort the matter out

a bankruptcy order is made against you or you make a voluntary arrangement with your creditors

you die

 

There may be some unfair terms in there but not so sure that there is anything I can rely on.

 

Want to get this filed tonight as last day tomorrow. All advice appreciated.

[Guest]

have bumped your thread for you.

[tony3x]

Any more advice on this before I file. I would rather get this out of the way tonight rather than tomorrow.

 

thanks

[AndyOrch]

Is that all of the defence Tony?....seems to be no conclusion.

 

 

Andy

[tony3x]

Is that all of the defence Tony?....seems to be no conclusion.

 

 

Andy

 

Not sure how to end it. Would I have to say something about having no grounds for allowing the judgement.

 

Basically I am relying on the DN being defective based on non compliance in the 2 areas.

 

Never done anything like this before and must admit that sometimes it is a bit over my head.

[AndyOrch]

You could use mine....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.

 

Closes the door.

[tony3x]

Thanks Andy, I will do that.

 

Going to file now as follows:

 

*****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;

3) 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.

[citizenB]

 

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

• 1. Interpretation Act 1978, Section 7

• This states:-

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "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 effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

• 1.

Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2.

To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a)

in the case of first class mail, on the second working day after posting;

(b)

in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3.

Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4.

This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

 

 

Does this help ?

[citizenB]

Did I see you mention that the Whole balance outstanding was requested on the Default Notice ? Unless the whole balance was actually arrears at that time, then that is not allowed.

They can only ask for accelerated payments AFTER the Default notice has been issued and expired.

[Guest]

citb

cheers, thats what i meant there re 'normal' postage rules.

yes, seems they have gone for the full balance re that term.

[tony3x]

Hi all,

All filed and now I have to wait and see.

 

Can anyone give me an idea of the process now and what to expect.

 

Re the balance - yes the DN was for the whole amount as per '8f' in their T&C's.

 

Para 2.14 and 2.15 of this are interesting

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

 

Only thing is I can't seem to find the actual section in the prescibed period regs

[marylikes]

Hi Tony, this may be to late for you to consider but as i am researching similar stuff myself i picked up on this....

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.

That reads like you do not know the date of service of the DN. Which is a direct question you could be asked which may be fatal to your argument. Maybe you should have asserted a service date unless the claimant can prove otherwise, rather than leave it open ended?

[Series3]

what makes you say it was second class post?

[dx100uk]

what makes you say it was second class post?

 

MBNA used UK Mail company

 

big S on the env means second class

99% of MBNA docs were sent out 2nd class UKMAIL.

 

dx

[marylikes]

Hi Tony, you will find some useful information here from about page 21 onwards, that may help you out i think.

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

 

 

Also to add, it contains information relating to the tactics shown by example in that letter from Drydens you recieved.

Edited October 21, 2013 by marylikes
Added info

[Old Cogger]

what makes you say it was second class post?

 

 

MBNA always use TNT 2nd. (S). but some judges are idiots and try to tell you it is 2 days regardless of what day of the week, but Harrison case states "Deminimus" and should be quoted if a court case but not before as they can always correct prior to selling off, Others will comment I am sure?

[The Mould]

The Brandon v American Express case Court of Appeal should be relied upon in respect of invalid statutory default notices.

 

I have not read your case in its entirety, please explain the full meaning of "8f" as laid out in their terms & conditions.

 

Have they terminated pursuant to sa.87(1) of CCA 1974 (as amended)?

 

Kind regards

 

The Mould

[tony3x]

Section 8f says

'you or your legal representative must pay your whole balance if;

this agreement ends

you fail to make a payment in full when it is due

you break an important part of this agreement or repeatedly break this agreement and fail to sort the matter out

a bankruptcy order is made against you or you make a voluntary arrangement with your creditors or you die'

 

I do not have any letter saying the account is terminated but the DN says;

'On or after the date shown your account will be closed and your credit agreement will be terminated'

[The Mould]

Section 8f says

'you or your legal representative must pay your whole balance if;

this agreement ends

you fail to make a payment in full when it is due

you break an important part of this agreement or repeatedly break this agreement and fail to sort the matter out

a bankruptcy order is made against you or you make a voluntary arrangement with your creditors or you die'

 

I do not have any letter saying the account is terminated but the DN says;

'On or after the date shown your account will be closed and your credit agreement will be terminated'

 

Then they have terminated via statutory s.87(1) CCA 1974 (as amended), if DN is invalid, creditor can neither rely on s.87(1) or s8f!

 

Brandon v American Express Court of Appeal is your saving grace and foundation of your Defence.

 

Kind regards

 

The Mould

[tony3x]

thanks Mould.

Received letter from the court today to say that my defence has been acknowledged and a copy is being served on the claimant. Goes on to say that the claimant may contact me direct to try to resolve any dispute and that if it cannot be resolved the claimant will inform the court on how they want to proceed. etc.

 

I guess a pretty standard letter.

[Guest]

 

I guess a pretty standard letter.

 

yes, they then have 28 days to respond to court. if they don't respond, then it will be auto stayed.

[tony3x]

can anyone tell me when the 28 days starts. The court letter is dated the 21st Oct and says they have 28 days from receipt of defence.

[zydeco]

21st. Oct + 5 days deemed served, 26th. Oct.

+ 14 days to acknowledge,9th Nov.

+ 14 days to submit defense. 23rd. Nov.

 

I think that's right.