MBNA / Idem... in court Friday 31 March 2014.. help needed. ** Claim Dismissed **

[DonkeyB]

But BOTH agreements (ie. from the OC via your earlier CCA request, and the claimant – two different agreements from different sources) are deficient in terms of Carey, aren’t they?

 

Also a bit irrelevant, as your main defence is that you have NEVER signed an agreement.

 

I think they will struggle with hearsay evidence – I imagine they want to have some internal ‘expert’ swear that they would not have issued a card without your signature. But we know that isn’t necessarily true...

 

So they can’t comply with the court order? You submitted your WS on time – when was their response due, as per the judge’s orders? If that deadline has passed, ignore them, and inform the court they have missed the deadline. You still have the skelly? It rips them to shreds.

[jackreacher]

Hi DB.. that one is still on the go between my goodself and lloyds. (Your help was invaluable) I shouldn't mix threads but in short. They have done a ws and a skelly and not changed a thing

 

They also have admitted they will not be bringing the original to court, not surprised forging bastuards, and yes they will be in breach of Judges orders. It is ordered to go in front of the same Judge. He will not be happy after giving them a last chance to sort their case out.

[DonkeyB]

Good!

[jackreacher]

I am thinking of sending this in order to get them to settle before court. All improvements welcome!!!

 

 

Dear Mr ,

 

I note your email from yesterday . You are now, no doubt aware of the great difficulties you will have in proving your claim.

You must now also be aware of the success rate of penalty charges being awarded. Particularly as you have stated in your T&C’s, “We may charge ( to cover our costs)”. I remind you that these conditions are binding upon you as the creditor.

Consequently “you will be put to strict proof of your true costs “. Including but not restricted to breakdowns of where costs are incurred.

In case you mistakenly think I can only claim back 6 years, I will be using section 32(1) of the limitation Act 1980. Which section depends upon your compliance to “being put to strict proof”.

 

32.--

(1) .... where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. ....

(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. . . .

______________________________________________________

AS you are aware I have attached case history of Kleinwort Benson V Lincoln City Council and Sempra metals contractual interest in restitution to my skeleton argument in line with Judges orders

You will also be aware that the Default Notice if served which is denied, would be made up with a large amount of unlawful charges.

Not withstanding the other points made in my skeleton argument, under the circumstances and in order to save time and money, it is suggested you agree to setting off my charges counter claim against your claim with no money to be paid to either party.

Both parties to carry the burden of their own costs.

[dx100uk]

don't think there is any need to send that

 

they know full well the issues and will prob fold I bet?

 

dx

[DonkeyB]

Agree wholeheartedly with DX.

 

The only thing you might point out to them is that the documents they are seeking have not only been released to them already, but should anyway be under their control, and that you have fully complied with the order of the court. But then why bother...

 

There really is no ‘overriding objective’ issue here that they can moan about – the claim has been issued, and the parties should now act on court orders.

[jackreacher]

Then it is decided.. I will mow the lawn instead.

[AndyOrch]

Then it is decided.. I will mow the lawn instead.

 

 

That would be more productive:wink:

[jackreacher]

lawn done..

 

Thanks for all your help you clever people. Court date is end of June for MBNA and middle of July for Lloyds.

As you can guess, in the words of Arnie "I will be back".

 

Regards JR

[jackreacher]

I am back.

 

Naturally I thought a credit card agreement signed at home was a cancellable agreement.

Reading through the threads it is quite confusing if it is, or not.

 

My application form has a cancellation notice box above the signature

'ending you have a short time to cancel details of this will be sent to you.'

 

The s62 copy has the same notice so cancellation rights seem to be in my agreement.

( although that is not the prescribed Cancellation notice for a s62)

 

I note that if a document showing cancellation rights is used where the Act does not give the customer cancellation rights,

the creditor or owner is treated as having voluntarily given the customer a right to cancel in accordance with the Act.

 

I also note the Rankines debacle.

 

Where does this argument stand now as I would love to use s64 in court.

 

I have looked for recent link but can find nothing.

 

Regards Jack

[dx100uk]

forget anything to do with rankines debacle!!

 

I think you are confusing signing a loan on business premises with a credit card agreement signed at home!

 

dx

[jackreacher]

I think there may be a way of using s127 (4) in certain situations. IE. In my case The claimant has stated the T&C's provided are my s62 copy.

Within that copy there are no prescribed terms so it does not contain 'All' the terms and conditions.

 

Using the FCA it states under 11.1.2 there is no right to cancel under a credit agreement unless. (2) There is a right to cancel under CONC 11.1.1 R where the lender has not complied with CONC 2.7.6 R (requirement to communicate terms and conditions etc), unless the distance contract falls with the exception in CONC 2.7.12 R and the firm has complied with the requirements of that rule.

 

Then 2.7.6 says;

CONC 2.7.6

01/04/2013

FCA

A firm must communicate to the consumer 'ALL' the contractual terms and conditions and the information referred to in the distance marketing disclosure rules (CONC 2.7.2 R to CONC 2.7.5 R) in a durable medium. That information must be made available and accessible to the consumer in good time before the consumer is bound by any distance contract or offer.

 

2.7.12 says;

CONC 2.7.12

01/04/2014

FCA

A firm may provide the distance marketing information (CONC 2 Annex 1R) and the contractual terms and conditions in a durable medium immediately after the conclusion of adistance contract, if the contract has been concluded at a consumer's request using a means of distance communication that does not enable the provision of that information in that form in good time before the consumer is bound by any distance contract or offer.

 

I am reading 2.7.6 as the s62 copy . My s62 copy does not contain any cancellation notice at all. On that basis I think there is a good argument to say the claim is unenforceable under 127(4)

 

What do You think.. remember I am just learning...

[AndyOrch]

All very well and true JR but you may be getting a little too deep in your arguments.......

 

Take a look at this thread :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?404712-Claim-Form-received-AK-on-MBNA-debt-Advice-please/page5

 

Post# 86 If you get a DJ like this...I dont think you would have time to explain your arguments.

 

Regards

 

Andy

[AndyOrch]

Duplicate post by the forum

[jackreacher]

Totally agree Andy.. Nice to know I had worked it out on my own though. Means I am learning.

 

I have stronger and easier points although I do have s64 in my skeleton. I am also looking for legal representation, but only have 18 pence and half a pound of butter. Although I do have £9,000 in Itemised credit card penalty charges if someone wants to do a deal??

 

Should I lose they will no doubt want to put a charging order on my house. However in the T&c's at 19.2 it states;

" Your responsibilities under this agreement will not be secured by any security which you have already given us or may in the future give to us."

What does that mean exactly, regarding a charging order??

 

JR

[AndyOrch]

" Your responsibilities under this agreement will not be secured by any security which you have already given us or may in the future give to us."

 

That is as the agreement stands now....should they get judgment then the agreement is dispensed with and the judgment will then be secured by way of a Restriction/Charging Order.

[jackreacher]

Thanks very much Andy.. would have been nice but alas!

 

I would like to say your help Andy is invaluable along with the other more knowledgeable people on this site. Should I succeed in my penalties claim I will be sticking a nice donation in the CAG POT as should everyone else.

 

Is there any better threads for the penalty charges I have read Shellys' but I am still not clear on the best way to put my argument. Which I have to win as it is more than the Claim!

[slick132]

Hi JR,

 

Re the Credit Card penalty charges, what bank or card is this for, or are there more than one.

 

[jackreacher]

Hi slick,

 

Mbna credit card. I have a list of all charges from my SAR . I have put the counter claim template in regarding penalty charges. . Running it at 29.9% as that is what they have put in their Charge off s78 conditions. the way I see it is, they have unlawfully taken £9000 from me and lending that money out and making another £9000. Even if they give me back £9000 they are still £9000 up.

 

The bit I need to nail is why the charges are actually unlawful and why I should get them back, something to impress a judge and hard to argue against. I know there must be a good easy explanation/ case law.

 

I also have £1200 on my lloyds case and have a counterclaim in.

 

regards JR

[slick132]

Hi JR,

 

Ok, so you're referring to the counterclaim to this claim, not another case.

 

Have you seen the Court Bundle doc't linked here - http://www.consumeractiongroup.co.uk/forum/showthread.php?423796-SabreSheep-Vs-Natwest-Moorcroft&p=4556956&viewfull=1#post4556956 It may be a little old but it includes the basics.

 

[jackreacher]

Genius Slick..Just what I needed.

I will go through it today.

[jackreacher]

Interesting development.. I have received a new s78 reply.

 

A quick explanation of account numbers ; the claimant states " account 1234 turned into 5678 at charge off and then and only then did this number exist. The account simply changed numbers for accounting purposes."

 

Todays s78 reply has a statement of account showing the balance as £0.00, the amount left to pay as £0.00 etc. Surely it means I have nothing to pay..lol. I have had £0.00 before when the account has changed numbers at charge off but never the after charge off number, weird.

 

( I should also add I have proof, contained within their Logs that 5678 existed a year before charge off so 1234 did not change into 5678)

 

Fortunately they have left the copy of my executed agreement without the prescribed conditions, heading, address,name.

 

In Court in a week, so will be back..

[BRIGADIER2JCS]

Interesting development.. I have received a new s78 reply.

 

A quick explanation of account numbers ; the claimant states " account 1234 turned into 5678 at charge off and then and only then did this number exist. The account simply changed numbers for accounting purposes."

 

Todays s78 reply has a statement of account showing the balance as £0.00, the amount left to pay as £0.00 etc. Surely it means I have nothing to pay..lol. I have had £0.00 before when the account has changed numbers at charge off but never the after charge off number, weird.

 

( I should also add I have proof, contained within their Logs that 5678 existed a year before charge off so 1234 did not change into 5678)

 

Fortunately they have left the copy of my executed agreement without the prescribed conditions, heading, address,name.

 

In Court in a week, so will be back..

 

 

The negative balance just indicates the status of the account after it was sol by the creditor:

 

 

The account/debt was sold in its entirety with all the rights and obligations of the original agreement passing to the debt purchaser.

[jackreacher]

The negative balance just indicates the status of the account after it was sol by the creditor:

 

 

The account/debt was sold in its entirety with all the rights and obligations of the original agreement passing to the debt purchaser.

 

That is what I thought except they deny having any obligations (regarding penalty charges) although have failed to produce the Deed of assignment, despite the Judge asking for it.

[BRIGADIER2JCS]

That is what I thought except they deny having any obligations (regarding penalty charges) although have failed to produce the Deed of assignment, despite the Judge asking for it.

 

 

Dis the judge make an order stating the DOA Must be produced within a certain time scale? If so failure to comply is contempt. get dome info on this.

 

 

Idem will not I think deal on the penalties.