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

[tony3x]

Hi Guys,

Still trying to get all the docs scanned but scanner playing up so have got to try to get them done in work.

 

However going through the paperwork I came across something that may be of relevance.

 

The date of the default on my credit report is 04/01/10.

The date of the default letter from MBNA is 09/04/2010.

 

I have uploaded the DN and the CCA.

 

The default date on the notice of assignment is 19/01/2010.

The debt was assigned to Arrow on 15/01/2012.

[dx100uk]

there is no relationship between when a DN was issued and the CRA file default date, so nothing useful there

 

the agreement looks pretty std for MBNA as well.

very few claims today are ever rebuffed through CCA 'errors' so that's out the window prob too

 

I assume you stopped paying? why?

can you also outline these details please

 

can you post up the exact wording of the PoC on the claim form please

 

dx

[dx100uk]

looking at the DN

I think you might have something there

 

they have not allowed 14 days

 

sent 9th apr 2010

date to rectify 26th apr 2010

 

dx

[dx100uk]

just to expand:

9th was a friday

2 working days [if 1st class posted - you need to see harrison judgement on this]

[if the env had a big S on the env thats 2nd class 4 working days]

so that means deemed delivered weds 14th apr 2010 if 1st class

14 calendar days after that is 28th april

DN says by 26th apr 2010

if it was a big S env by UK mail inc thats second class so 30th apr.

 

you need to read the harrrison case

 

dx

[tony3x]

Thanks for the input so far. I will have a read of the Harrison case. I will be scanning all the docs tomorrow so will have them posted tomorrow night.

 

Unfortunately I don't think that I have the envelope that came with the DN.

 

this all started when the crash happened and my income dropped by around 40%.

 

I got suckered into one of the claims firms (CCLS of all people) which went pear shaped.

 

I then started dealing with things myself and agreed a reduced payment plan.

 

The only thing is that I was still continuously plagued by phone calls at all hours and days.

 

I tend to rebel against this , they will not get another penny from me.

 

Probably not the best idea but too late now.

 

There was a lot of letters back and forth inc the DN.

 

I then just replied to any letter I received until just recently when I missed one, then I get the claim form.

 

My main bone of contention was that they would not confirm whether or not they hold a copy of the CCA with mine and MBNA's signature on.

 

At one point Drydens wrote to say that they have passed the file back to Arrow and they are no longer dealing with it.

 

You may get a better idea when I post the letters up.

[dx100uk]

the last posts in this thread will be of use:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?381644-Blackhorse-finance-credit-style-Claim-form-received&p=4350439#post4350439

 

dx

[The Mould]

Date of DN is Friday 9th April 2010, this doesnot prove that DN was posted on the same.

 

In nearly all circumstances where a DN is served by acreditor, it is served by 2nd class post,

unless creditor canprovide proof to the contrary, the burden of such proof being on the creditor.

 

In your case posted here, although DN is dated 9thApril 2010 (a Friday), this does not prove date of posting,

which is the most important and relevant factor as regards such statutory notices.

Therefore, in the absence of the required date of postage and class of such,

the DN must have been sent by 2nd class postage which would mean that the same was served on you on the 15th April 2010

and that statute would require such notice to be remedied by 29th April 2010,

the default notice in question in this case is therefore, 3 days short of the mandatory 14 clear days that a creditor

must provide his debtor with to remedy the breach relied upon pursuant to s.87(1) CCA 1974 (asamended).

In the circumstances, the creditor cannot continue with these enforcement proceedings,

since to allow himto do so would be in contravention of s.87 (1) CCA 1974 (as amended).

Parliament did not intend on passing these laws simply for the sake of the language prescribed therein.

Statutory provisions really do mean statutory,

any creditor who fails to comply with such, has lost his case because it must fail for want of compliance with the statute that applies to the case.

 

Godzilla

 

Kind regards

 

The Mould

[dx100uk]

thanks mould

 

dx

[tony3x]

Thanks for you input. I have scanned all the docs received from Drydens, just need to scrub them a bit better, Certainly feeling a bit better about it after Moulds comments.

 

I have attached the POC

 

Obviously concious of the time to reply. The issue date is the 16th so if I am right I have 14 days from the 21st.

 

Will get all other docs up asap.

 

thanks again.

[tony3x]

Hi All,

I have now scubbed and scanned the docs from when Drydens took over as follows. I have tried to get them all in date order.

 

Something else I have noticed relates to the T&C's _ I will try to get them scanned and posted asap.

 

The first set of T&C's that I received were when the case was being handled by CCLS. They are marked as the up to date ones. The details on these relating to apr's, default charges, handling fees etc are different from the application form. These are different to the T&C's that were sent to me by MBNA in April 2011.

 

Please correct me if I am wrong but with a CCA request should you not get the original and any subsequent T&C's. statement of account and a copy of the most recent statement. If this is the case they have issued the default when they have not fully complied with the CCA request.

[tony3x]

rescanned the jpg's as a single PDF

[dx100uk]

documents all merged and shrunk in post above

 

dx

[citizenB]

Your timeline

 

Issue date 16th September + 5 days for service = 21 September + 14 days to acknowledge = 5 October - if you are going to defend then you will receive a further 14 days which will be 19 October

[citizenB]

In respect of an s78 request you are entitled to receive...

 

copy or truthful reconstruction of the agreement

terms and conditions from inception and current or at default.

statement of account.

 

These are to be supplied in one package not piecemeal.

[tony3x]

In respect of an s78 request you are entitled to receive...

 

copy or truthful reconstruction of the agreement

terms and conditions from inception and current or at default.

statement of account.

 

These are to be supplied in one package not piecemeal.

 

The original CCA request to MBNA was i November 09 by CCLS. The reply from MBNA enclosed

1) A copy of the executed agreement

2)Your up to date t&C's

3) A copy of your most recent statement that has been signed.

 

Further T&C's (different) turned up in April 2011.

[tony3x]

Hi,

Looking at the reasons I need to put when filing a defence and it seems that I may have 2 avenues to go down.

1) the DN does not give the correct time for remedy. It should be 14 days starting the day after the date of service. The date of service being 2 (1st class) or 4 (2nd class) working days from the date of posting. That means that I would only have been given 12 days if 1st class and 10 days if 2nd.

2) The CCA request was not fully complied with as it only supplied one set of T&C's. These could not have been the original set as they are different from the T&C's on the application form. If this is correct that also makes the DN faulty.

 

All advice greatly appreciated.

[tony3x]

any advice on this please as I would like to file a defence tomorrow as my last day is the 4th. I will then have the extra 14 days to deal.

 

thanks

[AndyOrch]

Your timeline

 

Issue date 16th September + 5 days for service = 21 September + 14 days to acknowledge = 5 October - if you are going to defend then you will receive a further 14 days which will be 19 October

 

Regards

 

Andy

[tony3x]

Thanks Andy, I misunderstood the form a bit. If I am right all I need to do now is acknowledge the service and state that I intend to defend.

 

thanks

[citizenB]

Yes, you need to acknowledge the claim by 5th October - then you have 14 days in which to prepare your defence.

 

Have you got all the information you require ?

[tony3x]

I think that I have everything. Going through the paperwork you can see that the original CCA request was replied to in November 2009 but only included the then current T&C's. The DN was issued on 09/04/2010. I wrote to them on 19/04/2010 which they replied to in April 2011. This time including what they say are the original T&C's. I have letters where I claim that the account is in dispute as they have not complied fully with the CCA request. If I am write in thinking the DN was issued even though they had not fully complied with the CCA so is therefore in default. I think that I have every letter to & from since 2009.

 

Hopefully doing the write thing, then again no other real option.

 

thanks all.

[tony3x]

I have acknowledged service and the fact that I will defend. What will be the next part of the process. Do I have to prepare a defence with what I know even though I do not know what documentation they have.

 

As stated before I feel that the DN is faulty on 2 parts.

1) MBNA never fully satisfied their obligation from the original CCA request therefore they should not have issued the DN.

2) as pointed out previously I was not given the statutory time to remedy the default.

 

Thanks

[citizenB]

Did you receive the Notice of Assignment from Arrow Global and is the claim above or below £10,000 ?

[tony3x]

I have the notice of assignment (dated 15/01/12) and the claim is above £10k.

 

Would I be right in thinking that there is an issue with the debt being assigned with a potential faulty DN?

[AndyOrch]

I have the notice of assignment (dated 15/01/12) and the claim is above £10k.

 

Would I be right in thinking that there is an issue with the debt being assigned with a potential faulty DN?

 

Not really