MBNA court Activ Kapital

[AndyOrch]

This is why its important to post any draft for verification.....its a simple error and I can understand your logic...but could you convince a court that you genuinely didn't know the virgin card was a badged MBNA? I suppose if you was unaware then your statement is truthful but was you unaware?

 

To change a defence involves an application and fee and consent of the claimant/court...

 

 

Regards

 

Andy

[shamrocker]

Apologies, I thought I'd pestered you enough by that point. Lesson learnt.

 

Actually, you are correct to a point. I had no idea it was an MBNA card for a number of years after I received it. I thought it was a Virgin Money and had no idea who MBNA actually were at that point - I thought maybe Virgin had changed their name. That's going back a while though and wouldn't be correct in the context of the POC - i.e. I was fully aware of the MBNA connection when I read the POC, but not when the card was issued.

 

Do you think it's best left alone, like I submitted it, and just hope for the best? Or worth changing it on the basis that it was a genuine error/mis-understanding?

[AndyOrch]

Would changing it add any material value to your defence ? Dont forget you submitted your defence under oath a truthful account and response to the claimants claim.

 

If it were changed how would you change it ? what impact would it carry on your defence ? would it be more viable to admit the claim and withdraw the defence?

 

Hoping for the best is not really a good foundation to defend a claim and may prove costly.

 

 

Difficult decision...as you have found there is a skill in drafting defences.I suppose you could ring CCBC and ask if the defence could be resubmitted as there is a genuine error contained in it?

 

 

Andy

[shamrocker]

Would changing it add any material value to your defence ? Dont forget you submitted your defence under oath a truthful account and response to the claimants claim.

 

If it were changed how would you change it ? what impact would it carry on your defence ? would it be more viable to admit the claim and withdraw the defence?

 

Hoping for the best is not really a good foundation to defend a claim and may prove costly.

 

 

Difficult decision...as you have found there is a skill in drafting defences.I suppose you could ring CCBC and ask if the defence could be resubmitted as there is a genuine error contained in it?

 

 

Andy

 

I will try ringing them as it's got to be worth a try.

 

In your opinion, does the fact that I denied the agreement outweigh the fact that a fully compliant agreement doesn't seem to exist. Or, is the whole point that I agree to the agreement buy plea non-compliance and no CCA?

 

Forgive my ignorance on this.

[AndyOrch]

If they produce an agreement and subject the age of this agreement they may provide a reconstituted version along with statements and proof of use then you are up the creek....

 

If you had stated " it is neither admitted or denied " then that places the claimant in a position of burden to then produce a valid signed copy of either an application/agreement

 

If you had stated " It is admitted that I did enter into an agreement with Virgin CC on or around xxxxxxx etc etc....

 

then 3 comes into play. " It is denied with regards to the Defendant owing any monies to*

the Claimant and The Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the*

Claimant; and

 

If they cant provide you have not stated an untruth because you admitted but they cant provide therefore they are then burdened.

 

Yes?

[shamrocker]

Andy - I've spoken to CCBC and they've said I can resubmit via email.

 

I think one quite large penny has suddenly dropped with all this, and exactly I am trying to argue against.

 

Now, so do I basically go back and change the 'denied' bits to 'accepted' within points 1 and 2? Then, leave points 3 to 9 intact?

 

Your thoughts would be much appreciated.

[shamrocker]

Crossed posts..I didn't see yours above before posting.

[AndyOrch]

" Andy - I've spoken to CCBC and they've said I can resubmit via email."

 

Have another go and post here first.

[shamrocker]

" Andy - I've spoken to CCBC and they've said I can resubmit via email."

 

Have another go and post here first.

 

Will do. Thanks for your patience

[shamrocker]

Andy, another draft:

 

---------------------------------------------------------------------

 

1. Paragraph 1 is neither admitted nor denied with regards to the Defendant*

entering in to an agreement referred to in the Particulars of*

Claim ('the Agreement') with MBNA.

 

2. Paragraph 1 is neither admitted nor denied with regards to 'the defendant*

defaulted' on the Agreement with MBNA.

 

3. It is denied with regards to the Defendant owing any monies to*

the Claimant and the Claimant is put 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 for; and

© show how the Claimant has the legal right, either under*

statute or equity to issue a claim;

 

4. As per Civil Procedureicon Rule 16.5(4), it is expected that*

the Claimant prove the allegation that the money is owed.

 

5. 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.

 

6. On the alternative, the Agreement referred to in paragraph 1*

was improperly executed contrary to Section 61(1)(a) of the*

Consumer Credit Act 1974 ('the Act').

 

7. The Agreement cannot be enforced against the Defendant without*

an order of the court by the reason of the fact that it was*

improperly executed as set out above and by reason of Section*

65(1) of the Act.

 

8. Further, by reason of the fact that there is no document which*

has been signed by the Defendant containing a correct statement of*

the amount of the credit under the Agreement, and by reason of*

Section 127(3) of the Act, the Court has no power to make an*

enforcement order in respect of the Agreement because a term*

stating the amount of the credit is a prescribed term for the*

purposes of Sections 61(1)(a) and 127(3), prescribed by the*

Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and*

paragraph 2 of Schedule 6.

 

9. 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.

 

-----------------------------------------------------------------

 

I've only amended points 1 & 2 and have resigned myself to letting you walk me through the other points

[AndyOrch]

1. Paragraph 1 is neither admitted nor denied with regards to the Defendant*

entering in to an agreement referred to in the Particulars of*

Claim ('the Agreement') with MBNAicon.

 

2. Paragraph 1 is neither admitted nor denied with regards to 'the defendant*

defaulting' on the Agreement with MBNA.

 

3. It is denied with regards to the Defendant owing any monies to or that the claimant/original creditor served a valid Notice of Assignment*

the Claimant and the Claimant is put 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 for; and

© show how the Claimant has the legal right, either under*

statute or equity to issue a claim;

 

4. As per Civil Procedureicon Rule 16.5(4), it is expected that*

the Claimant prove the allegation that the money is owed.

 

5. 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.

 

6. On the alternative, the Agreement referred to in paragraph 1*

was improperly executed contrary to Section 61(1)(a) of the*

Consumer Credit Act 1974 ('the Act'). remove

 

7. The Agreement cannot be enforced against the Defendant without*

an order of the court by the reason of the fact that it was*

improperly executed as set out above and by reason of Section*

65(1) of the Act. remove

 

8. Further, by reason of the fact that there is no document which*

has been signed by the Defendant containing a correct statement of*

the amount of the credit under the Agreement, and by reason of*

Section 127(3) of the Act, the Court has no power to make an*

enforcement order in respect of the Agreement because a term*

stating the amount of the credit is a prescribed term for the*

purposes of Sections 61(1)(a) and 127(3), prescribed by the*

Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and*

paragraph 2 of Schedule 6.

 

9. 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.

 

 

[shamrocker]

3. It is denied with regards to the Defendant owing any monies to or that the claimant/original creditor served a valid Notice of Assignment*

 

Thanks Andy!

 

Re the point above - I cannot confidently say that I did not receive a Notice of Assignment, though I do not specifically remember receiving one. I definitely didn't receive one via signed delivery, that I am certain of as no credit company has ever sent me anything via this method.

 

Still ok to to proceed on that basis?

[AndyOrch]

Up to them to prove otherwise.....we cant remember!!!!

[shamrocker]

Ability to remember things is not one of my better attributes!

 

I will push on with emailing the amended defence to CCBC and shall report back with any developments.

 

Thanks for your guidance thus far.

[shamrocker]

Before I send it, how does this look now:

 

1. Paragraph 1 is neither admitted nor denied with regards to the Defendant*

entering in to an agreement referred to in the Particulars of*

Claim ('the Agreement') with MBNA.

 

2. Paragraph 1 is neither admitted nor denied with regards to 'the defendant*

defaulting' on the Agreement with MBNA.

 

3. It is denied with regards to the Defendant owing any monies to*or that the

claimant/original creditor served a valid Notice of Assignment. The Claimant is put 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 for; and

© show how the Claimant has the legal right, either under*

statute or equity to issue a claim;

 

4. As per Civil Procedureicon Rule 16.5(4), it is expected that*

the Claimant prove the allegation that the money is owed.

 

5. 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.

 

 

6. Further, by reason of the fact that there is no document which*

has been signed by the Defendant containing a correct statement of*

the amount of the credit under the Agreement, and by reason of*

Section 127(3) of the Act, the Court has no power to make an*

enforcement order in respect of the Agreement because a term*

stating the amount of the credit is a prescribed term for the*

purposes of Sections 61(1)(a) and 127(3), prescribed by the*

Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and*

paragraph 2 of Schedule 6.

 

7. 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]

Remove 6...how would you know if a prescribed term was missing from the agreement .......they have yet to disclose it.

 

Once you are happy with it and understand then re submit...retain a copy

[shamrocker]

Hello! Sorry I've been a bit slow in updating this. I've received an acknowledgement of receipt of my defence from the Court. It states that it has been passed onto claimant, claimant has 28 days to respond, etc.

 

What now? It is just a case of waiting for any response or lack of and then act according to the circumstances that arise?

[raydetinu]

They will reconstitute the agreement, with a tick in the box if you did it on line, and unfortunately the courts do accept this.

If you have any assets, house etc. they may well put a charge on it.

[Flyboy583]

Shamrock. They have 28 days (from memory) to comply. If noting then the case become "stayed". It is now a waiting game to see how they will respond. Judging from your earlier post they do not have all the documents you requested and am trying to get it so my guess is the time will expire and the case stayed... Remember it is up to them to prove in court that this money is owed to them and all legal routes was followed. I don’t want to give you false hope so be prepared that at some point in the future (if the case becomes stayed) they can re-apply to the courts to open the case. At that point you will have to make a decision on the best next action. If the case becomes stayed, sit tight and do nothing until you get any correspondence from the court saying that they want to re-open the case.

 

I just want to point out I am NO expert here.. I’m going through a very similar situation as you and like you, probably under a lot of stress.. My advice to you here is this. One step at a time. research and ask advice... Andy and the other admins on here are very knowledgeable and helpful.. I really do not know what I would have done without CAG and the admins (especially Andy)

 

Good luck and remember you are not alone! Lots of us going through the same thing.. Chin up and stay positive

 

Rgds

 

Flyboy

 

 

Hello! Sorry I've been a bit slow in updating this. I've received an acknowledgement of receipt of my defence from the Court. It states that it has been passed onto claimant, claimant has 28 days to respond, etc.

 

What now? It is just a case of waiting for any response or lack of and then act according to the circumstances that arise?

[shamrocker]

They will reconstitute the agreement, with a tick in the box if you did it on line, and unfortunately the courts do accept this.

If you have any assets, house etc. they may well put a charge on it.

 

Thanks. And, if I don't have any assets, such as equity in a property (perhaps they can still apply for a charge should equity ever become available)? Also, what about other creditors & arrears with creditors - will this have a bearing on any court decision (with regards to making repayments), assuming they rule that the debt is owed.

 

I just want to point out I am NO expert here.. I’m going through a very similar situation as you and like you, probably under a lot of stress.. My advice to you here is this. One step at a time. research and ask advice... Andy and the other admins on here are very knowledgeable and helpful.. I really do not know what I would have done without CAG and the admins (especially Andy)

 

Good luck and remember you are not alone! Lots of us going through the same thing.. Chin up and stay positive

 

Thanks Flyboy. It is indeed a great relief to receive such support on here. I suppose you could say I'm a little stressed about it, but more leaning towards 'whatever will be, will be' and just make them work for whatever they eventually get out of it, if anything. I'm expecting the worst but hoping for the best out of the situation. I have no sympathy for these people, considering their tactics to get people to load up on debt. I've paid them and others a small fortune in interest over the years, plus it's also cost me a considerable sum in other associated costs such as overdraft interest and fees, income tax arrears, etc., due to meeting the various repayments when I couldn't really afford them. I kind of wish I'd spent more and p*ssed it all up against the wall!! Maybe that's not the ideal attitude to have, but hey-ho. Thanks again and good luck!

[raydetinu]

have you contacted anybody regarding financial advise and how to keep creditors off your back?

Go and see CAB, they give very good advice and can sort out your income/expenditure schedule and write to each creditor on your behalf to get some sort of agreement with them for your current situation.

They are very good.

[shamrocker]

Update - received letter from AK sols acknowledging receipt of defence and stating their intention to proceed with the claim. Exciting

[shamrocker]

 

Hoping Andy will look in on this. An update and some advice needed.

 

I received Directions Questionnaire N181 from Northampton CCBC earlier in December - it needs to be completed and returned to them this week. Also received is Directions Questionnaire from the claimant. Their directions are standard draft order.

 

I've read your advice on this thread - post #48 - http://www.consumeractiongroup.co.uk/forum/showthread.php?391771-County-Court-Claim-Form-Loan-From-HSBC-MKDP-LLP-Claimant***Claim-Struck-Out***/page3

 

With regards to the form, would you suggest I adopt the same approach?

 

In terms of filing proposed directions, how would you recommend I approach this? My defence centred on the absence of a CCA and my request for the appropriate documentation has yet to materialise. Do I need to request anything additional at this stage?

 

Further to that - do you recommend I contact the claimant's representatives at any point to discuss any matters, or just let them do the talking?

 

As always, I'd be grateful for your help. I probably let this drag on a bit too long, but decided to get Christmas out of the way before knuckling down to it.

 

Thanks!

[AndyOrch]

Yes follow the same path...you know your defence...you know what you requested. You should copy the DQ to the claimant.

 

 

Regards

 

 

Andy

[shamrocker]

Thanks for your prompt reply Andy. I will give it a go and shall try to get it off to them tomorrow, plus a copy to the claimant.

 

Would you suggest I pass it by you first?