PRA Group claimform old MBNA card 'debt'

[johno23]

Hi All

 

I have received court papers for a old MBNA Credit Carddebt that has been sold to PRA Group (Aktiv Kapital).

 

The last payment date was 3rd Feb 2009 and

 

have read some excellent posts on here and

 

have written to the cliamant informing that the debt is staued barred

 

and also completed my defence citing section 5 of the Limitation Act

 

However I have recieved a letter today from the claimants solicitor saying

 

" with respect, we disagree with you statement. The 6 year period runs from the date the cause of action accrued and in this case it is when the Deafult Notice was served on you.

 

Therefore, the claim has been brought within the 6 year period and is not stauted barred.

 

Please can someone help with a response.

 

Kind regards

[fkofilee]

Default Notice is not the cause of action. The cause of action is last payment plus 2 months.

[johno23]

Thanks fkofilee

 

Court action was issued on 20th May 2015 and last payment was made on the 3rd Feb 2009.

 

Where does it say last payment plus 2 months?

 

Have you got a reponse I should send to the solicitor, or do I just ignore and defend in court.

 

Kind regards

[fkofilee]

There isnt a defined rule, however, as a good guide its last payment plus 2 or 3 months...

[numbers666]

File AOS online.

 

Last payment was by your records 3/2/09 - 6 years is 3/2/15.

 

Adding 3 months to this is 3rd May 2015 (outside needed is 3 months).

 

SB IMHO is the defense.

 

Wait for the SCC action to be withdrawn. They will be pushing a 10 ton boulder up everest to continue.

 

In the meantime file the CPR request to the solicitor to get the documents they rely on to keep them occupied.

 

N

[BankFodder]

I would suggest that you try response such as the following:

 

You are quite wrong that the cause of action begins from the time that a default was issued.

 

The cause of action arises from the date of the first missed payment – in other words the breach of the contract.

 

This is a matter of law. An alleged creditor is not given any right in law to decide for himself when the cause of action will begin simply by issuing a default notice. If this was the case, then it would frustrate the law relating to limitations completely.

 

Limitation period is not administrative period which did ends upon the whim of an alleged creditor. It is a matter of law decided by parliament.

 

If you think that this is wrong then go ahead and issue the claim and we will discuss it with the judge.

 

In the meantime you are notice that the matter is statute barred and that you are prevented by the CONC rules from pursuing me any further.

[johno23]

I would suggest that you try response such as the following:

 

Many thanks Bankfodder, will get letter draft and sent recorded delivery Monday.

 

Kind regards

[dx100uk]

can you fill this out please

 

 

and have you ack'd the claim yet defend all?

how far are you in

have you filed the SB defence?

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**(1-Viewing)-nbsp

[johno23]

Received the following response from my letter that I sent as advised by bankfodder.

 

We disagree with the suggestion made in your letter that this debt is statue barred. The limitation period of 6 years runs from the date a casue of action arises.

 

The cause of action arose following a default notice being sent to you, as provided for by Section 87 (1) of the consumer credit act 1974.

That notice required you to remedy the breach of the agreement and identified the consequences of failing to do so.

That consequences was termination of the agreement.

The default notice was sent to you on the 9th October 2009.

 

Had you paid the arrears, then the agreement would have continued.

You failed to pay the arrears and the agreement was then terminated and the total outstanding balance due in full.

 

 

Accordingly, the limitation period begins to run from when you failed to pay the arrears as demanded and the agreement was terminated.

The claim is therefore within time and not statue barred.

 

The difference between this agreement and one where the last payment made gives rise to cause of action is that this was

a "running agreement" with rights and obligatios on both parties until such time as these were brought to an end or terminated by either party"

 

We trust our client's position is clear and confirm that we are instructed to proceed with the claim.

As we obviously take the view that this debt is not statue barred we also take the view that the FCA rules set in CONC do nto apply.

 

Other issues I have noticed

 

1) The credit agrrement is unreadable

2) The default notice was sent on the 9th October 2009, given until 26th October 2009, yet I received a lettter on the 23rd October 2009

saying the debt had been sold, therefore the account was terminated during the default period.

 

Please can someone help and advise.

[AndyOrch]

"The difference between this agreement and one where the last payment made gives rise to cause of action is that this was a "running agreement" with rights and obligations on both parties until such time as these were brought to an end or terminated by either party"

 

Well the default Notice states when it should be paid by otherwise its terminated

 

The cause of action (when the limitation period starts running) for simple contract debts (running credit), is usually when your agreement says the creditor is able to take court action because you have fallen behind with payments. This will usually be after one or two missed payments. Sometimes, a debt will have no set repayment time. For these sorts of debts, working out the cause of action is more difficult.

 

Andy

[dx100uk]

what was the date of the claimform please

you didn't fill that link in.

 

 

dx

[johno23]

Thanks dx100uk

 

Name of Claimant: PRA Group UK

 

Court Issue Date: 20th May 2015

 

Defence by: 19th June 2015 (I have already put in a defence at present of statute-barred, the court have written to the claimant and provided them with 28 days to see if they want to proceed.

 

Particulars of Claim:

 

 

1.The claim is for recovery of an account due under a credit agreement which has been subsequently legally assigned to the claimant.

Particulars of claim will be served within 14 days of service of the summons including a claim for interest under s69 county court act 1984 from the date of termination to the date hereof of 8.00% being £4883.90 & further interest on a daily basis until payment or judgement at a daily rate of £2.41p.

Value of Claim: £16,702.63, Account claimed £15,887.68, Court fee £714.95, Solicitors Cost £100

 

Claim is for a Credit Card

 

Original Agreement: 20th November 2004

 

Notice of assignment:

In the court bundle there is a letter from Experto Credite dated 23rd October 2009 (during the default notice period that Varde Investments have purchased the debt, under the terms of the assignment Experton Credite has been appointed by Varde Investments to recover all outstanding sums).

 

 

Default Noitice: MBNA dated 9th October 2009, In order to remedy this breach we must receive a payment of £1454.65 by 26th October 2009. Your account balance is currently £11003.78.

 

Payment: Last payment on account was made on the 3rd February 2009.

 

No attempt to settle the debt, admit the debt or enter in to a debt management plan.

[johno23]

Any advice?

[AndyOrch]

Not until we know if they wish to proceed or whether it is stayed after the 28 days.

[johno23]

Thanks Andyorch

 

I received yesterday notice of proposed allocation to the Fast Track by court.

 

Also by the 24th July I need to complete the following

 

Complete the Directions Questionaire.

Attempt to agree directions with all parties

File proposed directions (whether or not agreed) with the Directions Questionaire.

 

Please can someone help, also does this mean that the claimant has responded to the court to say that they want to proceed with the claim.

 

Kind regards

[AndyOrch]

So they have proceeded...hence the N181...this is known as the Allocation stage....bump your thread a bit nearer the date (say a week) to submit and Ill run through the completion and advise on directions.

 

Regards

 

Andy

[johno23]

Thanks Andy

 

 

Regarding an update.

 

 

I have received last week a letter from the claimaints solicitor giving me 14 dyas to accept there draft directions.

 

 

They are:-

 

 

1) The claim is allocated to fast track.

2) Disclosure of documents shall be dealt with as follows

a) Both parties shall give each other standard disclosure by list, the lists to be served at 4pm on 21st August 2015.

b) Any request for a copy, or inspection, of any document shall be complied with by 4pm on the 4th September 2015.

3) Both parties shall, by 4pm on 2nd October, serve the witness statements of all witnesses (other than expert witnesses) on whom the party intends to rely including the partys own statement.

4) The parties may not rely on or adduce the evidence of any witness whose statement has not been served in accordance with this order without further permission form the court.

5) Completed pre-trial checklists shall be sent to the court by 4pm on 13th November 2015.

6) The claim shall be listed for trial during the trial window from MOnday 30th November 2015 - Friday 11th December inclusive with a time estimate of two hours.

 

 

At present they say I have 14 days to agree or amend the draft directions, I have recently sent a letter under CPR 31.14 asking for documents including a credit agrement which is legite as the one they sent is unreadable, providing them with 7 days for these documents.

 

 

Please can someone advise on what I should do regarding draft directions from the claimant.

 

 

I have also received a letter from the court informing me that the court has been moved to my home town.

 

 

thanks in advance!

[AndyOrch]

Standard Fast Track directions johno I cant see any reason not to agree...if I may suggest one proviso...

 

a) Both parties shall give each other standard disclosure by list,all original documents to be disclosed, the lists to be served at 4pm on 21st August 2015.

 

Dont worry about the CPR for now...once the above is agreed copy it and attach to your N181...the N181 is relativity easy to complete ...post if you are unsure.

 

Andy

[johno23]

Thanks Andy

 

When u say originals do you mean copies, really can't read the credit agreement, need to see the original.

 

Also is it defo statute barred, feeling nervous now!

 

Can you guide me with N181 form, really lost

 

Thanks

[AndyOrch]

Well the best original they have......no reconstituted version or Illegible microfiche copies. Dont worry the word " originals " will get your message across.

 

RE statute barred......

 

Default Noitice: MBNA dated 9th October 2009, In order to remedy this breach we must receive a payment of £1454.65 by 26th October 2009. Your account balance is currently £11003.78.

 

Payment: Last payment on account was made on the 3rd February 2009.

 

Claim issued 20th May 2015

 

 

Claimant states.....

 

"The difference between this agreement and one where the last payment made gives rise to cause of action is that this was a "running agreement" with rights and obligations on both parties until such time as these were brought to an end or terminated by either party"

 

The ICO would advise/direct that a default notice should be issued after 3 missed payments (May 09) not 8 months ( 9th October 09) they terminated the account 26th October 09 (17 days after issuing the DN)

 

You possibly breached the agreement 30 days after your last payment (3rd Feb 09) March or 60 days April or 90 days May.A creditor cannot expand/extend the statute of limitations by issuing a DN as and when it feels like.

 

I will post examples of how to complete the N181 tomorrow...getting tired now ...long day.

 

Regards

 

Andy

[johno23]

Thanks for your help Andy.

 

Examples of N181 would be very helpful.

 

Kind regards

[AndyOrch]

http://www.consumeractiongroup.co.uk/forum/showthread.php?439308-Redwood-harwoods-school-fees.-Claimforn-received/page4

 

Post#75 will give you an idea.

 

Regards

 

Andy

[johno23]

Thanks Andy

 

 

Just a bit lost with one point, if you could help.

 

 

I) Other information

Do you intend to make any applications in the future Yes/No

If Yes What for?

 

 

In the space below, set out any other information you consider will help the judge to manage the claim - Do i confirm my defence that it is SB?

 

 

Thanks in advance!

[AndyOrch]

Thanks Andy

 

 

Just a bit lost with one point, if you could help.

 

 

I) Other information

Do you intend to make any applications in the future Yes/No

If Yes What for?

 

Just state no for now...its a stupid question because if you said yes how would you know what for...it should give the option..Unsure...your reason.... depends on the court and claimant if they follow the correct process

 

 

In the space below, set out any other information you consider will help the judge to manage the claim - Do i confirm my defence that it is SB?

 

No you have already submitted your defence...the DQ is to allocate the claim not a further opportunity to add to your defence.

 

 

Thanks in advance!

 

 

Regards

 

Andy

[johno23]

Thanks Andy for all your help really appreciated.

 

Ok I have found a bank statement dated 18th March 2009.

 

You have failed to make a minimum payment

 

Failing to make your minimum payment can mean that you have broken the terms of your credit agreement and could result in us taking legal action against you. It could lead to your having to pay additional costs and make it more difficult to obtain credit in the future.

 

Your account facility remains withdrawn.

 

Also statement dated 17th April 2009.

 

This statement is also your notice of default sums

 

One or more default sums for late, over limit or returned payments, is included in this month statement. Please see the transaction information for details of your default sums and the total of such sums. We are required by the consumer credit act 1974 to issue this notice.

 

Is this evidence as the date of cause of action and when the 6 years runs from for statute barred

 

Kind regards