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

[Guest CHEVRA]

I sent a defence in respect of MBNA and not giving me enough time to rectify they. They were out by 3 days. Judge would not accept my defence and said " you still owe the money".

[tony3x]

I sent a defence in respect of MBNA and not giving me enough time to rectify they. They were out by 3 days. Judge would not accept my defence and said " you still owe the money".

 

Whats the point of having regulations if the legal system ignores them.

 

I was going to use this as part of my defence so may have to reconsider. Also looking at unenforceable agreement as Section 61.(1) of the CCA 1974 states that the agreement should have a signature from the creditor when mine clearly does not. Also not sure whether the agreement fully satisfies as the reverse is adverts. The copy of the 'original terms' was supplied over a year after the original request.

 

I await more expert opinion and also what I have to do now that I have acknowledged service.

[Guest CHEVRA]

following with interest

[The Mould]

Whats the point of having regulations if the legal system ignores them.

 

I was going to use this as part of my defence so may have to reconsider. Also looking at unenforceable agreement as Section 61.(1) of the CCA 1974 states that the agreement should have a signature from the creditor when mine clearly does not. Also not sure whether the agreement fully satisfies as the reverse is adverts. The copy of the 'original terms' was supplied over a year after the original request.

 

I await more expert opinion and also what I have to do now that I have acknowledged service.

 

Service of an invalid default notice defeats the claim, because the creditor cannot continue to enforce the agreement in contraventionof statute – s.87(1) CCA 1974 (as amended), see also the qualified judgement handed downby the Court of Appeal in Brandon vAmerican Express which confirms this and the lower Courts are bound by.

See – Harrison v LinkFinancial also, service of a valid default notice is a statutory provisionwhich must be complied with beforethe creditor can proceed to enforcement action on the agreement.

Again, the lower Courts are bound by this qualified statement. Refer to both of these judgements in yourDefence and respectfully refer the District Judge to the same and invite him toread the same (do not include the transcripts of these authorities with yourDefence, if you are Defending, simply state that you rely upon theseauthorities in respect of the invalid default notice served and that at the trial you will refer to said section ofthe statute (above)and these authorities for the full terms and effect of suchwhich you invite the Court to read)

The invaliddefault notice does not extinguish the debt!

Is there any ppi on this agreement? Are there any excessive and disproportionatecharges applied?

Do you dispute the amount claimed? If so, why? Do you haveany points of law (other than the above) that you can rely upon in your Defenceto either completely defeat this claim or reduce your liability for the same? I mean no disrespect to you, but please beopen and honest with your response hereto, if you omit some fact that is adverseto your proposed Defence, this will only leave us in a position to advise youon the material posted and if that circumstance were to occur, then you willreceive advice that is wrong and unreliable for your case.

If you are going to argue s.61 non-compliance pre-2006 amendments,credit agreement non-enforceable, thenyou had better undertake serious, committed research so that you are able todemonstrate in Court that you know and understand such submissions in this areaand establish that the agreement does not comply with the same.

Kind regards

The Mould

[tony3x]

Thanks Mould.

There has been no PPI or any excessive charges. Up until the financial crisis I had no problems with servicing then my income dropped by around 40%. I had to make decisions so wrote to my credit card providers offering a reduced payment. Some accepted what I offered, MBNA did not. They said that they could only accept a payment that was approx 50% of my actual payment. I paid this for a while but they still kept calling at all hours chasing the arrears. In the end I just got fed up and after reading about CMC's I thought I would give it a go. That was 4 years ago. At one point MBNA took 12 months to reply to a letter concerning points on the CCA. Wescot took it on and eventually sent it back then Drydens took it on for Arrow. At one point Drydens returned the file to Arrow. I then didn't hear for a while until all this started.

 

I don't dispute the amount owed.

I could probably do with finding out what documents Arrow will reply on in court. Is there a way I can get these before I file a defence?

 

thanks

[AndyOrch]

"I don't dispute the amount owed.

I could probably do with finding out what documents Arrow will reply on in court. Is there a way I can get these before I file a defenceicon?

 

thanks "

 

If you dont dispute the amount owed then why are you defending? Disclosure follows the defence not before.

 

Regards

 

Andy

[tony3x]

I am defending because I do not believe they have followed the correct procedure and also that the debt is not enforceable. Morally you could say that I am in the wrong but when I wanted help from MBNA they were not interested. I am also interested to know why MBNA did not take me to court over this if they thought that they would be successful, to finally get to this stage over 3 years after the default is strange to me and I think an abuse of the system.

 

I have constantly asked Drydens if they have a fully executed copy of the CCA to which they have never confirmed either way, juts kept sending me a copy of the 'agreement' that I already have.

[Alloyz1]

MBNA are a lender and their core business is lending. They do not want to proced to court in the main. They write the debt off against tax liability and sell it on to someone who will pursue you.

 

With the debt probably being allocated to Fast Track the risk you have is the potential for huge costs if you lose. As opposed to Small Claims where costs are limited, usually dependant on protocol followed by each party!

 

Whilst your DN is a credible arguement, and as The Mould quite rightly points out your defence has presidence to refer to, it all comes down to the DJ (undertsanding and willingness to understand) on the day; and there is a huge risk with the DN arguement.

 

It is not the most solid and iron clad defence scenario's IMHO.

 

Would it be a prudent measure to enter into negotiation for a settlement figure on installments? It could save you time, money and risk and should it go to court, shows an element of mediation?

 

Just my opinion and I know it may not be for everyone.

[The Mould]

I am defending because I do not believe they have followed the correct procedure and also that the debt is not enforceable. Morally you could say that I am in the wrong but when I wanted help from MBNA they were not interested. I am also interested to know why MBNA did not take me to court over this if they thought that they would be successful, to finally get to this stage over 3 years after the default is strange to me and I think an abuse of the system.

 

I have constantly asked Drydens if they have a fully executed copy of the CCA to which they have never confirmed either way, juts kept sending me a copy of the 'agreement' that I already have.

 

As I said earlier, the unenforceable route is a viable one, but you must commit yourself to serious research on the same - Wilson v First County Trust is a key authority on this element of your Defence.

 

 

If you do not dispute the amount claimed, then, although you are angry and upset as regards the manner in which these robots have mistreated you, I would advise you that you ought to make an offer to repay the debt at a monthly rate that is within your means.

 

I still stand firm on all material posted by me regarding the invalid default notice. 3 years ago there was substantive debate, discussion and heated arguments on this subject, I presented well reasoned arguments thereon and the trolls requested that I provide case law to back my arguments up, I said that the case law was to come, it has come and you can rely upon it to end this action brought by your creditor.

 

The problem is that the creditor has clearly terminated the agreement in reliance upon invalid DN, the agreement is a bilateral agreement and the creditor cannot reinstate/make live again unilaterally, your consent would be required to do such; you can use this as a bargaining tool as regards offering to repay at a lesser rate without any admission of liability to the amount claimed, failing which, you can argue that creditor terminated and insisted upon his strict rights at a time when he was not entitled to and had no just cause to do so, therefore, creditor is contract breaker and you are the innocent party.

 

Research breach of contract, fundamental breach that is and the remedies available to the innocent party.

 

Its your case and you must make the decisions which you feel will best suit you and your family. As above, since you do not dispute the debt, you have no Defence to completely defeat it, therefore, notwithstanding my foregoing material, put an offer in writing to your creditor asking that he accepts £xyz as a reduced amount to repay the debt claimed, which you do not admit liability for, until the debt claimed is paid.

 

Kind regards

 

The Mould

[tony3x]

Thanks for your responses.

 

Ideally I want to avoid any court action but have very limited available spare monthly funds. If I were to make an offer to make a monthly payment is there any sort of protocol as too how much I offer. Also I assume they would want an income & expenditure breakdown - Do they take into account my wifes income and outgoings?

Also what sort of %age would be an acceptable starting point for a F&F settlement - in case I can borrow the money.

 

As I have acknowledged service how would this effect any offers?

 

Any templates would be greatly appreciated.

[Guest]

do one of those template IE ones from the likes of cab/national debtline for eg for your eyes only at this stage, see where you are.

 

acknowledging service doesn't affect any offers. see alloyz thread for eg, settlement was around 25% of the amount claimed in the end, on instalments. slightly different circs though.

Edited October 9, 2013 by Ford

[The Mould]

Thanks for your responses.

 

Ideally I want to avoid any court action but have very limited available spare monthly funds. If I were to make an offer to make a monthly payment is there any sort of protocol as too how much I offer. Also I assume they would want an income & expenditure breakdown - Do they take into account my wifes income and outgoings?

Also what sort of %age would be an acceptable starting point for a F&F settlement - in case I can borrow the money.

 

As I have acknowledged service how would this effect any offers?

 

Any templates would be greatly appreciated.

 

Offer any amount that you can reasonably afford to repay the debt, but make sure that you include the clause that you do not accept liability for amount claimed.

 

No templates available as regards full and final offers.

 

You have stated that you believe that you have grounds to argue non-compliance with s.61 CCA 1974 (as amended), therefore, chance your arm and offer 30% in full and final settlement of this account in order to bring about a satisfactory resolution to both parties concerned, failing which, you will assert at trial that the agreement does not comply with section 61 CCA 1974 (as amended) and is therefore unenforceable pursuant to the House of Lords decision handed down in Wilson v First County Trust.

 

You must research this case and make the decision which you believe to be beneficial to you and your family.

 

Further, research, Brandon v American Express, Harrison v Link Financial and Woodchester v Swain and fundamental breach of contract. In your case, who is the contract breaker, you or the creditor?

 

Kind regards

 

The Mould

[Guest]

there is an eg template full and final on nat debtline. amend to suit though if using, ensuring no admissions (eg not the bit '....which i owe' ).

Edited October 9, 2013 by Ford

[tony3x]

Thanks guys,

F&F is probably out of the question as I will not be able to get 30%, be lucky to get 10%. Will have to seriously think about either monthly or risk court.

I will look at the cases recommended and take it from there.

[The Mould]

Thanks guys,

F&F is probably out of the question as I will not be able to get 30%, be lucky to get 10%. Will have to seriously think about either monthly or risk court.

I will look at the cases recommended and take it from there.

 

OK Tony

 

The invalid default notice defeats the creditor's enforcement action.

 

Kind regards

 

The Mould

[tony3x]

OK Tony

 

The invalid default notice defeats the creditor's enforcement action.

 

Kind regards

 

The Mould

 

Thanks Mould.

 

Just need to familiarise myself with the process from now on in. ie do I submit my defence to the court based on the invalid default or is there something else i should do first.

[Alloyz1]

http://www.consumeractiongroup.co.uk/forum/showthread.php?380935-Claim-Form-Received-***-Settled-by-Tomlin-Order***

 

Just to give you a flavour of how close I came to court and how it transpired to Settle

 

A

[Guest CHEVRA]

I certainley wouldn't borrow money to repay a debt !!

[AndyOrch]

I certainley wouldn't borrow money to repay a debt !!

 

Depends on the circumstances when faced with a County Court Claim that you have little or no defence to.

[The Mould]

there is an eg template full and final on nat debtline. amend to suit though if using, ensuring no admissions (eg not the bit '....which i owe' ).

 

 

Ford, I mean no disrespect to you, but template letters on full and final are useless and the wording of such are wrong and do not apply to each case of full and final.

 

No disrespect intended is repeated.

 

Kind regards

 

The Mould

[The Mould]

Thanks Mould.

 

Just need to familiarise myself with the process from now on in. ie do I submit my defence to the court based on the invalid default or is there something else i should do first.

 

The invalid default noticed served and relied upon by creditor, means that he cannot proceed to enforcement action in reliance of such. Quote Court of Appeal (relevant para) in your Defence and quote s.87(1) CCA 1974 (as amended).

 

As regards your contentions of s.61 CCA 1974 (as amended) - meaning pre- 2006 amendments, then argue this also in your Defence. Its your choice, but as you do not dispute the debt, make an offer to repay the debt per month at a rate that is within your means and that such is offered without any admission of liability for amount claimed.

 

Weigh it all up, sleep on it after research that is, then make your executive decision.

 

Kind regards

 

The Mould

[tony3x]

Recieved this today. Acknowledged service 04/10/13.

 

 

 

Is this standard procedure?

[dx100uk]

you'll need to PDF the doc

and attach it

 

dx

[The Mould]

Can you please follow dx100uk's advice and re=post the letter recveived, because the attachment is too small to peruse.

 

Kind regards

 

The Mould

[tony3x]

try again

Edited October 11, 2013 by citizenB
turned document the right way round