PRA Group claimform old MBNA card 'debt'

[Guest]

as per andys etc post.

IMO re credit cards re bar. a def notice is merely a procedural requirement re a breach re s87 con credit act. if a def notice amount is not paid then the breach in it continues as the cause of action. ie the missed payment/breach complained of, not the date of the dn.

so if the breach is over 6 yrs by the time of the claim, then shld be barred.

some terms make 'allowance' for a late payment(s) etc before being in breach, check their terms if they've sent a recon/copy.

but, yes a notice of 'default' sum cld mean in default (breach) of the agreement.

[johno23]

Help just received a hearing of the claimant application for summary judgement to attend court on the 12th August!

[Guest]

these are the cpr re sum judgment

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

seems then they think your sb defence (presume thats what you did) has no 'real prospect'.

for you to argue/rebut otherwise.

andy etc will no doubt be along just now, sit tight.

[dx100uk]

whats the number on the form?

[johno23]

N244 form received

[AndyOrch]

Help just received a hearing of the claimant application for summary judgement to attend court on the 12th August!

 

Hi Johno responding to your PM.

 

Has the court enclosed a copy of their application (N244) and any witness statement in support of the application?

 

If not that is your first task as you will need this information to be be able to respond and object and submit your own witness statement.

 

Regards

 

Andy

[johno23]

Yes there is a copy of there application and witness statement. Basically it says that I have no chance of succeeding with my defence as the 6 year rule goes from the default notice.

 

Do you require any further information

 

Kind regards

[AndyOrch]

Yes there is a copy of there application and witness statement. Basically it says that I have no chance of succeeding with my defence as the 6 year rule goes from the default notice.

 

Do you require any further information

 

Kind regards

 

You will have to type the WS out verbatim (less any identifiable points) and what they have cited and rely on within their N244.... if you want advice how to challenge their application.

 

Andy

[johno23]

Thanks Andy

 

 

N244

 

 

Legal Representation

 

 

1. The claimant seeks summary judgement is accordance with CPR 24.2(a) (ii) and CPR 24.2(b) as the Defendant does not have a reasonable prospect of successfully defending this claim and there is no other compelling reason why the case should be disposed of at trial.

2. The Claimant refers the Defendant to CPR 24(5) (1) whereby it states that if the Defendant wishes to rely on written evidence at the hearing, they must file this written evidence and serve copies on every other party to the application at least 7 days before the summary judement hearing.

 

 

Have you attached a draft order - NO

 

 

At a hearing, 1 hour

 

 

Witness statement attached.

 

 

 

 

WITNESS STATEMENT

 

 

1. I am employed by the Claimant as a legal & compliance officer and i am duly authorised to make the witness statement on the claimants behalf. I make this statement in support of the claimants application for summary judgement on the defence, pursuant to CPR Rule 24.2(a)(ii), upon the gounds that the Defendant has no real prospect of successfully defending the claim on the defence. Save where otherwise appears the facts and matters to which i refer in this witness statement are within my knowledge and are true. Where facts and matters to which I refer within this statement are not within my knowledge, they are true to the best of my knowledge, information and belief, having been supplied to me the claimant MBNA Limited (hereinafter referred to as MBNA), Varde Investments (ireland) Limited (hereinafter to as Varde) and Aktiv Kapital Portfolio AS Zug Branch (hereinafter referred to as Aktiv).

 

 

2. I have seen the defence filed by the defendant dated 3rd June 2015. The court will also be aware that the claimant has filed and served fully particulars of claim dated 20th Masy 2015 which was served by first class post to the defendant on 21st May 2015. hence the defence now before the court has followed these full particulars.

 

 

3. Before I deal with the defendants pleadings, I believe it may be helpful to take the court through the process so far as it related to the the defendant obtaining credit from MBNA, It will be seen that the claim arises out of a running account agreement dated 20th November 2004.

 

 

4. The defendant completed an application for credit card facilities and submitted this to MBNA dated 20th November 2004. A copy of this application is exhibited along with the terms and conditions applicable at the date of the agreement and which is part of the application form and the terms and conditions applicable at termination. It will be seen this has been signed by the defendant.

 

 

5. Following acceptance by MBNA, the form duty endorsed and the full terms and conditions are sent to the customer who then has the opportunity to cancel the agreement without liability, In this case the defendant then used the card unequivocally demostrating his acceptance of the terms as exhibited.

 

 

6. The defendant continued to use the credit card from the inception of the agreement. I do not produce the entire statements for the account because each month's statement is 3 pages long and include the notification of any changes which might be applicable and thus would be over 360 pages long. I do however exhibit the final statement for the account. I point out that the amount showing on this is exactly the amount for which these proceedings have been issued. In other words there has been no additional interest levied since September 2009. This also means the annual statements provided for under the consumer credit act do not need to be provided as nothing altered.

 

 

7. As a result of default by the defendant in makiing instalment payments MBNA served the defendant with a default notice under S87 (1) of the consumer credit act. A copy of this notice is exhibited. The amounts shown is that which was applicable at the date of the notice and the balance now being pursued and as shown on the statement.

 

 

8. Following service of the default notice, MBNA assigned the account to Varde, who in turn assigned the account to Aktiv, who finally assigned the account to the claimant and therefore all rights enjoyed by MBNA under the terms of the credit account, including the right to enforce the agreement were tranfered to Varde and then to Aktiv and then to the claimant. Written notice under S136 of the Law of Property Act 1925 was given separately to the defendant in respect of each account. Copies of the notices of assignment are exhibited as applies.

 

 

9. Aktiv also served the defendant with a default notice on 4th November 2014 and a copy of this is exhibited.

 

 

The Defence

 

 

10. Turning to the defence, I do not agree that the claim is statute barred. Under Clause 5 of the Limitation Act 1980, "an action founded on simple contract shall not be brought after the expiration of six years fro the date on which the casue of action accrued".

 

 

11. The cause of action arose following a default notice being sent to the defendant. The notice required the defendant to remedy the breach of the agreement and identified the consequences of failing to do so. That consequence was termination of the agreement.

 

 

12. Accordingly, the limitation period began to run from when the defendant failed to pay the arrears as demanded and the agreement was terminated. The cause of action arose following failure to comply with the default notice.

 

 

13. The default notice was sent 9th October 2009 and again on 4th November 2014 and accordingly the claim has been brought within the six year time limit and is not statute barred.

 

 

14. For the reasons set out above, I would ask the court to find the defendant has "no real prospect of successfully defending the claim" as provided for under CPR 24.2 and there is no compelling reason why the case should be disposed of at trial and to enter Summary Judgement in favour of the claimant in the amount sought accordingly together with an award of costs of such judgement, which I would ask the court to summarily assess.

[AndyOrch]

Many thanks Johno....

 

Okay you can disregard all of that witness statement up until the defence part and point 13...that's padding and inconsequential with regards to their application and what they wish to attain.

 

Here is the important part.......

 

" 13. The default notice was sent 9th October 2009 and again on 4th November 2014 and accordingly the claim has been brought within the six year time limit and is not statute barred."

 

Did you get 2 default notices ?

Did you clear the arrears from Default Notice 1?

Did the agreement resume if you did clear the arrears?

 

 

Regards

 

Andy

[johno23]

Thanks Andy

 

I did get two default notices.

 

No payment has been made at all since 3rd February 2009.

[AndyOrch]

They are trying to rely on the first or second DN as the cause of action...?

 

You need to draft a witness statement in objection to their application ...concentrating on the above as your main contention...this must be served on the court and the claimant not less than 7 days pre hearing of the summary judgment.

 

What date is the hearing?

[johno23]

12th August 2015.

 

I think there argument is the first default notice, as they mention I had until 26th October 2009 to clear the arrears.

 

Can you help with my witness statement, I am lost!

 

Thanks

[AndyOrch]

So last payment was February 2009....Default issued 9th October 2009...time allowed to clear until 26th October........claim issued 20th May 2015.

 

Default Noticed issued some 8 months later.They deem the claim was issued in time by 6 months.

 

So the argument becomes on the delayed issue of the DN.

[johno23]

Is our argument that the 6 year rule started from the notice of default sums and withdrawing my credit facility as stated in their statement on 18th March 2009, is that classed as cause of action?

[AndyOrch]

Unfortunately no..it is the issuance of the default notice that is classed as the cause of action and 26th October 2009 is the date that they are then allowed to litigate.

 

Its not straight forward Johno and your witness statements will have to overcome this by way of the deferred period by 8 months....its not simple but is attainable as some Judges will go with the first payment due missed date.

[johno23]

Do I need to borrow some money from family and offer a full & final settlement or will I have a good case with my witness statement.

 

What do you mean when the default notice was issued 8 months later?

[AndyOrch]

Your last payment was Feb 09...the default should have been issued after 2/3 payments...say May 09...they issued it in October...8 months later.

[johno23]

Ok what do you suggest as a witness statement, or do you feel I need to offer a full & final.

 

In other words what are my chances.

 

Kind regards

[AndyOrch]

Their weak point and one that the witness statement fails to address is the time lag....8 months gap...that is your main contention and starting point.I cant just give you a definitive witness statement Johno it takes hours of research and study into what argument you can present.....let me sleep on it and Ill post back with options.

 

Dont compromise your defence just yet by jumping to knee jerk offers of settlement.

[johno23]

Ok Many thanks for your help.

 

I will look forward to your response.

 

Kind regards

[johno23]

Also Andy

 

Are we able to go in the fact the default notice is invalid.

 

1) enough days from the 9th October - 26th October 2009 if served 2nd class post.

 

2) I revived a letter from Experto Credite dated 23rd October 2009 during the default period.

 

We are writing to advise that Varde Investments Limited has bought the interest of MBNA in the above referenced account, including the outstanding balance. Consequently, Varde Investments is now the legal owner of the account.

 

Are they allowed to sell the account during the default notice dates.

 

Kind regards

[AndyOrch]

Also Andy

 

Are we able to go in the fact the default notice is invalid.

 

1) enough days from the 9th October - 26th October 2009 if served 2nd class post. No

 

2) I revived a letter from Experto Credite dated 23rd October 2009 during the default period.

 

We are writing to advise that Varde Investments Limited has bought the interest of MBNA in the above referenced account, including the outstanding balance. Consequently, Varde Investments is now the legal owner of the account.

 

Are they allowed to sell the account during the default notice dates. Yes

 

Kind regards

 

Stick to your SB defence...dont start clutching at straws...smacks of desperation.

 

Andy

[johno23]

How do I go about the witness statement?

[AndyOrch]

Type Witness Statement into the search bar above top right (under the CAG logo) this will bring threads up that refer to witness statements...in particular Summary Judgment and submitting a witness statement.

 

As advised I will assist but you can make a start and research in to how the format and contents should comply.