MBNA debt/ Akitv Kapital (via Varde Experto)*** Claim Struck Out***

[Mr Spoon]

Here goes...

 

I've been trying to find similar cases to my own, but have ended up confusing myself with masses of helpful advice - somebody please help.

 

I have a Virgin MBNA card with a total debt of around £17K.

I have stopped paying anything to them after the interest rate went through the roof, and I have been unable.

 

I sent a CCA (with a postal order) on 10th May and

when they phoned on 21st May I thought it was about that.

It wasn't, just general hassle,

so I copied the MBNA operative my letter (email) and waited.

 

I waited until 8th July, at which point I spoke to another unsolicited MBNA caller

and established that I should have sent my request to the "Customer Advocates Office",

not the general MBNA Chester address.

 

I sent another copy of my original letter (but no additional postal order).

As I was typing a covering letter I took another MBNA call from a chap who began talking legalese.

He asked me if I was handling this dispute myself or with help from CAG,

and stated that even when the received my CCA request they needn't send me anything useful.

 

 

He also referred me to the BBC website where a couple had been successful in their claim,

but had been hit with an equivalent amount (£100K) in legal costs.

 

 

He also said that they had done a credit check and seen that we are paying other debts

(another credit card with a balance of about £1800, a £10K unsecured loan and a £250K mortgage).

 

 

He said that as we were giving preference to other creditors he had done a check on the value of our property

and that as there is some equity he would have a "charge" put on it to recover the debt.

He added that MBNA had been successful in 90% of the cases that had gone to court.

 

Having read other posts I like to think that this is threatening bluff, but Mrs Spoon is worried.

 

Today the reponse to my CCA arrived -

a 2 sided A4 sheet with a copy of a signature box on one side,

and on the other a boxed bit of small print with "diamond" mark in the top left

and some interest rates on the right.

 

 

I'll wrestle with attaching copies if necessary,

but it is nothing that will tell me if the agreement is properly executed.

The date of the "agreement" is early 2005.

 

Here is the twist to my case (I think). In a moment of money-worry induced madness my wife applied for the card on my behalf, and signed the document.

 

Whilst I'm sure we spent the money,

I'm wondering what I can hope to achieve by following this up.

If we go down the route that my wife forged my signature are we going to get done for fraud?

 

We have had a "kind" letter offering us reduced payments or the writing off of a proportion of the debt.

 

What should I/we do next? Please help.

[dx100uk]

90% of MBNA agreement from the time are rubbish and unenforcable.

 

scan it remove pers details

and post it up on photobucket

then post the link here.

 

let get the knowledgable ones to take a look at it first.

 

dx

[pompeyfaith]

and stop the kind words mbna dont know the meaning of they will take an offer then sell the rest to a DCA

[Mr Spoon]

Thanks for the swift responses - nice to know I've been read.

 

Will get scanning later DX and pompeyfaith, kind was in quotes. I have read enough posts to know MBNA are only in it for themselves.

 

(that is my first ever smilie!)

[Mr Spoon]

As I said earlier,

 

 

the reponse to my CCA request was, eventually (first post details misdirected letter story),

 

Have MBNA complied with s78?

 

Do I now need to request a true copy of the full original form to allow Caggers to comment effectively?

 

Also, the relevant account looks likely to be in default imminently. Should I worry? Is there anything I should do before that happens?

[Mr Spoon]

Sorry about the stamps, I've wrestled with photobucket, and here are the 2 links:

 

http://i649.photobucket.com/albums/uu220/MrSpoonMrSpoon/MrSpoon-CCAresponse1.jpg

 

http://i649.photobucket.com/albums/uu220/MrSpoonMrSpoon/MrSpoon-CCAresponse2.jpg

[Mr Spoon]

Please could I have some advice...

 

I wrote (recorded delivery) to MBNA on 27/8 stating:

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out – this time limit has expired.

 

As you are no doubt aware section 77(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled, to enforce the agreement.

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested.

Consequentially any legal action you pursue will be averred as both unlawful and vexatious. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply you must, within 21 days, provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and as such the following applies:

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply

 

 

I also included a Subject Access Request and the £10 fee.

 

MBNA issued a default notice on 7 September, and on 11 September wrote stating that as I had previous agreed for them process my data under s10 of the DPA they will continue to do so. Also that someone else is dealing with my s7 request for a copy of data held.

 

 

I think I have gone as far as I can by reading other threads and now need some direction of my own.

 

Should I write demanding that the default is lifted (as the account is in dispute). Have they complied with my CCA request and can I withdraw my permission for them to process my data? Anything else I should be doing?

 

Please help, Mr Spoon.

[Mr Spoon]

I'm in almost exactly the same position as Tek Screw. My early issues were posted when I had issues with MBNA, and now Ativ Kapital have started CCJ proceedings. Not wanting to hijack this thread how shall I go about posting my current situation, please?

[Mr Spoon]

I originally sought the help of CAG back in July 2009 when I became unable to pay a Virgin credit card (MBNA), a claim now listed at getting on for £20,000.

 

My card "agreement" was begun in early 2005, and as part of my dispute I requested all paperwork from MBNA.

 

I disputed the contract with MBNA, and according to the N1 I defaulted mid-2009, and the debt was subsequently "assigned" to Varde Investments (Ireland) Ltd a month later.

 

In early 2012 the debt was assigned to Aktiv Kapital Portfolio AS, Oslo, Zug Branch.

 

I believe I followed advice by not agreeing to any "deals" with Varde or Aktiv, in that they would sell on the remainder to another DCA, but now I'm in the court process, and in need of some tailored advice, please.

 

My early posts detail the initial matter - should I cut/paste them here?

 

I have acknowledged the service of the N1 over the internet - it was issued on 13th October. Does that give me until 15th November to register a defence (33 days)?

 

I have sent letters asking Aktiv Kapital for all the information they have, and also to the claimants solicitor, Robert Marr, requesting the documents they refer to in the particulars of the claim: 1) the MBNA agreement, 2) Notices of assignment to Varde and AK

 

Today I got a letter from AK saying that my request under the Consumer Credit Act for documents has been passed to MBNA, and that in the mean time my account is on hold. At the top of letter it says the "Original Creditor" is "Varde Experto" - does this have any relevance?

 

Thank you in anticipation of any guidance you can give.

[honeybee13]

Hello there.

 

Please could you have a read of the forum stikky and post up the answers? It should help the guys to advise you. If you're in Scotland, it's a different stikky.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**%282-Viewing%29-nbsp

 

HB

[dx100uk]

so you have ack'd the claim

 

 

and sent CCA request

and

CPR?

 

 

dx

[Mr Spoon]

honeybee, will do.

 

dx, I have acknowledged the claim, sent the CPR and the CCA.

 

Thank you both.

[dx100uk]

ok time to read around then.

[Mr Spoon]

In order for us to help you we require the following information:-

 

Name of the Claimant ? AKTIV KAPITAL PORTFOLIO AS

Date of issue – top right hand corner of the claim form – this in order to establish the time line you need to adhere to. 13th October 2014

What is the claim for – the reason they have issued the claim?

Please type out their particulars of claim (verbatim) less any identifiable data and round the amounts up/down.

 

The claimant claims the sum of £22k for debt and interest.

On XX/XX/05 the defendent entered into an agreement with MBNA for a credit card under reference XXXXXXXXXXXXXXXX.

On XX/XX/09 the defendent defaulted on the agreement with an outstanding balance of £18k.

On XX/XX/09 the debt was assigned to Varde Investments (Ireland) Ltd.

 

On XX/XX/12 the debt of £18k assigned [sic] to Aktiv Kapital Portfolio AS, Oslo, Zug Branch.

Notices of assignment were sent in accordance with S136 Law of Property Act 1925.

 

AND THE CLAIMANT CLAIMS

1. The sum of £18k

2. Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8.00% per

annum from XX/XX/12 to XX/10/14

3791.27 and thereafter at a daily rate of 4.00 until judgement or sooner payment [pound signs missing]

What is the value of the claim? £22k

 

Is the claim for a current or credit/loan account or mobile phone account? credit card

 

When did you enter into the original agreement before or after 2007? before 2007 in early 2005

 

Has the claim been issued by the original creditor or was the account assigned

and it is the Debt purchaser who has issued the claim.

Apparently the claim has been assigned to a debt purchaser. Most recent letter from AK states original creditor as "Varde Experto"

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Experto Credito wrote to me...

Did you receive a Default Notice from the original creditor? Yes

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

Unaware of content of letters. All from AK destroyed, some from Experto kept.

 

Why did you cease payments:- The interest rate went through the roof, and with other debts to pay this became unmanageable.

 

Was there a dispute with the original creditor that remains unresolved?

Yes, I disputed the contract/interest rates, and whilst that was ongoing the debt was sold on.

Did you communicate any financial problems to the original creditor and make any attempt to enter into adebt mgnt plan?

Problems communicated, MBNA just threatened to put a charge on my house.

I hope that is enough to go on.

 

Mr Spoon

[Mr Spoon]

I've had an acknowledgement of the CPR dated 17/10/14.

 

It is just that, an acknowledgement, and states that the matters are being "reviewed" and "investigated". A full response will apparently be issued in due course...

 

Having read other threads I'm not anticipating any further response, and whilst I understand that a proper defence cannot be formulated without knowing what AK are basing their case on, I will have to post a defence, won't I?

 

Please advise my next step.

 

Thank you.

[dx100uk]

unless until they supply any paper work

 

 

it will be the holding defence

available on mostthreds here

 

 

but you need to await developments if any

 

 

just don't forget to file

 

 

post it here first

 

 

dx

[dx100uk]

don't forget you file date

 

 

dx

[Mr Spoon]

My date by which to file a defence is Monday 17th, and so below is my first attempt at a form of words.

Word you please be so kind as to consider and advise, thank you.

The claimant claims the sum of £22k for debt and interest.

On XX/XX/05 the defendent entered into an agreement with MBNAfor a credit card under reference XXXXXXXXXXXXXXXX.

 

 

On XX/XX/09 the defendent defaulted on the agreement with an outstanding balance of £18k.

 

 

On XX/XX/09 the debt was assigned to Varde Investments (Ireland) Ltd.

 

On XX/XX/12 the debt of £18k assigned [sic] to Aktiv Kapital Portfolio AS, Oslo, Zug Branch.

 

 

Notices of assignment were sent in accordance with S136 Law of Property Act 1925.

 

AND THE CLAIMANT CLAIMS

1. The sum of £18k

2. Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8.00% per

annum from XX/XX/12 to XX/10/14

 

3XXX.XX and thereafter at a daily rate of 4.00 until judgement or sooner payment [pound signs missing]

 

The defendant contends that the Particulars of Claim are vague and generic in nature. The Defendant accordingly sets out his case below and relies on CPR 16.5 (3) in relation to any allegation to which a specific response has not been made.

It is accepted that by spending money defendant entered into an agreement with MBNA, although Defendant did not himself sign any enforceable agreement.

It is denied that the account was defaulted, and was in dispute at that time. I have sought clarity by way of a CPR 31.14 request; the claimant has yet to comply.

 

I am unaware of any legal assignment or Notice of Assignment allegedly served from MBNA, Varde Investments or the Claimant. I have therefore sought clarity by way of a CPR 31.14 request. The claimant has yet to comply.

It is therefore at this time denied with regards to the defendant owing any monies to the Claimant, and the Claimant is therefore out 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; and

c) Show evidence of any breach and service of a Default Notice and subsequent Notices of sums in arrears; and

d) Show how the claimant has the legal right, either under statute or equity to issue a claim.

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

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

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.

 

Questions:

1) Can I mention that I find it concerning that AK should begin this action without proof in place?

2) As the matter pre-dates 2007 should I include that any documentation produced in eventual response to the CPR 31.14 request should not be a composite?

3) Should I number my paragraphs?

[AndyOrch]

" 3) Should I number my paragraphs? "

 

Yes and also their particulars then the defence can be cross referenced to their points.

 

Andy

[Mr Spoon]

Thank you andyorch. Here is the draft with numbered paragraphs, how is it for content, please?

1) The claimant claims the sum of £22k for debt and interest.

On XX/XX/05 the defendent entered into an agreement with MBNAfor a credit card under reference XXXXXXXXXXXXXXXX.

 

2) On XX/XX/09 the defendent defaulted on the agreement with an outstanding balance of £18k.

 

3) On XX/XX/09 the debt was assigned to Varde Investments (Ireland) Ltd.

 

4) On XX/XX/12 the debt of £18k assigned to Aktiv Kapital Portfolio AS, Oslo, Zug Branch.

 

Notices of assignment were sent in accordance with S136 Law of Property Act 1925.

 

AND THE CLAIMANT CLAIMS

1. The sum of £18k

2. Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8.00% per

annum from XX/XX/12 to XX/10/14

 

3XXX.XX and thereafter at a daily rate of 4.00 until judgement or sooner payment [pound signs missing]

 

The Defendant contends that the Particulars of Claim are vague and generic in nature. The Defendant accordingly sets out his case below and relies on CPR 16.5 (3) in relation to any allegation to which a specific response has not been made.

 

1) It is accepted that by spending money Defendant entered into an agreement with MBNA, although Defendant did not himself sign any enforceable agreement.

 

2) It is denied that the account was defaulted, and was in dispute at that time. I have sought clarity by way of a CPR 31.14 request; the claimant has yet to comply.

 

3 & 4) I am unaware of any legal assignment or Notice of Assignment allegedly served from MBNA, Varde Investments or the Claimant. Defendant has therefore sought clarity by way of a CPR 31.14 request. The Claimant has yet to comply.

It is therefore at this time denied with regards to the Defendant owing any monies to the Claimant, and the Claimant is therefore out 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; and

c) Show evidence of any breach and service of a Default Notice and subsequent Notices of sums in arrears; and

d) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

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

 

On the alternative, as the Claimant is an assignee of a debt, it is denied that the claimant has a right to lay a claim due to contraventions of Section 136 of the Law and Property Act and Section 82A of the consumer credit Act 1974.

 

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.

[AndyOrch]

Im not liking your point 1 Mr Spoon...I think you need to reconsider that response.

 

Andy

[Mr Spoon]

Im not liking your point 1 Mr Spoon...I think you need to reconsider that response.

 

Andy

 

I didn't think you'd like it and was wondering if their was a way to refer to the way the account was initiated. If not, I will go with:

 

"1) It is accepted that the Defendant entered into an agreement with MBNA, although it is disputed that any monies are owed to the Claimant."

 

What do you think?

[AndyOrch]

Far better...or perhaps...

 

1) It is accepted that the Defendant as had financial dealings with MBNA in the past, although I am unable to recall the precise details of the alleged debt by which the claimant refers to within this claim.I have requested clarity by way of a section 78 request, the claimant has failed to comply or even made respond to my legal request"

 

Then expand further down the defence on your CPR and CCA request/s.

 

Andy

[Mr Spoon]

 

Then expand further down the defence on your CPR and CCA request/s.

 

Andy

 

I have amended point 1, and added a date the CPR (and CCS) were sent to point 3/4. How can I expand on that/those, please?

 

1) It is accepted that the Defendant as had financial dealings with MBNA in the past, although I am unable to recall the precise details of the alleged debt by which the Claimant refers to within this claim. I have requested clarity by way of a section 78 request, the claimant has failed to comply or even respond to my legal request.

 

2) It is denied that the account was defaulted, and was in dispute at that time. I have sought clarity by way of a CPR 31.14 request; the claimant has yet to comply.

 

3 & 4) I am unaware of any legal assignment or Notice of Assignment allegedly served from MBNA, Varde Investments or the Claimant. Defendant has therefore sought clarity by way of a CPR 31.14 request sent on 16th October 2014. The Claimant has yet to comply.

[AndyOrch]

My date by which to file a defence is Monday 17th, and so below is my first attempt at a form of words.

Word you please be so kind as to consider and advise, thank you.

The claimant claims the sum of £22k for debt and interest.

On XX/XX/05 the defendent entered into an agreement with MBNAfor a credit card under reference XXXXXXXXXXXXXXXX.

 

 

On XX/XX/09 the defendent defaulted on the agreement with an outstanding balance of £18k.

 

 

On XX/XX/09 the debt was assigned to Varde Investments (Ireland) Ltd.

 

On XX/XX/12 the debt of £18k assigned [sic] to Aktiv Kapital Portfolio AS, Oslo, Zug Branch.

 

 

Notices of assignment were sent in accordance with S136 Law of Property Act 1925.

 

AND THE CLAIMANT CLAIMS

1. The sum of £18k

2. Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8.00% per

annum from XX/XX/12 to XX/10/14

 

3XXX.XX and thereafter at a daily rate of 4.00 until judgement or sooner payment [pound signs missing]

 

The defendant contends that the Particulars of Claim are vague and generic in nature. The Defendant accordingly sets out his case below and relies on CPR 16.5 (3) in relation to any allegation to which a specific response has not been made.

It is accepted that by spending money defendant entered into an agreement with MBNA, although Defendant did not himself sign any enforceable agreement.

It is denied that the account was defaulted, and was in dispute at that time. I have sought clarity by way of a CPR 31.14 request; the claimant has yet to comply.

 

I am unaware of any legal assignment or Notice of Assignment allegedly served from MBNA, Varde Investments or the Claimant. I have therefore sought clarity by way of a CPR 31.14 request. The claimant has yet to comply.

It is therefore at this time denied with regards to the defendant owing any monies to the Claimant, and the Claimant is therefore out 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; and

c) Show evidence of any breach and service of a Default Notice and subsequent Notices of sums in arrears; and

d) Show how the claimant has the legal right, either under statute or equity to issue a claim.

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

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

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.

 

Questions:

1) Can I mention that I find it concerning that AK should begin this action without proof in place?

2) As the matter pre-dates 2007 should I include that any documentation produced in eventual response to the CPR 31.14 request should not be a composite?

3) Should I number my paragraphs?

 

If they have complied to your CCA request with a reconstituted version then you cant use my suggested alternative point 1 draft as they have complied (in a way)

 

Here is a further example on how to show /expand on on CCA and CPR request.

 

####Defence####

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is noted although I am unaware of any assignment between the claimant and MBNA or what the account number in question refers to.The claimants particulars are vague spurious and lacking any precise reason or nature of claim.

 

3. Paragraph 2 is denied I am not aware of any assignment as stated above or any requests for payments.I have never received statements or Notice of Sums in Arrears given that the claimants plead they are the legal owner of any alleged debt.

 

It is my understanding and pursuant to the CCA2006 amendments that the claimant is prevented form any enforcement during this lack of service.

 

4.Notwithstanding the above on receipt of the above claim a request for information pursuant to the consumer credit Act (section 78) and CPR 31.14.The requests were made on 11th April 2014 by recorded delivery and signed for by the claimant on 14th April 2014. To date I have received no response or acknowledgement from the claimant’s solicitor.

 

The claimant is therefore in default of the statuary 12 days.

 

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

 

6.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

 

It is denied with regards to the Defendant owing any alleged monies to Aktiv Kapital. The Claimant is put to strict proof to:

 

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

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

© evidence any nature of breach and show service of a Default Notice and Notice of sums in Arrears.

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim.

 

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