MBNA court Activ Kapital

[The Mould]

Hi The Mould

 

Thanks for that. I have read many of your contributions on the forum previously and am happy to accept your advice.

 

My defence was constructed based on the well intended advice received here on the forum. I had no previous experience of this process so was rather naive with regards to the various aspects of the claim - e.g "proof of service as regards the assignment of the agreement".

 

If I'm stuffed then so be it. I will just have to deal with it as best I can. However, you mention compliance of the DN issued - can you guide me on this? How should I tell if it complies?

 

Look forward to hearing from you.

 

http://www.legislation.gov.uk/ukpga/1974/39/part/VII

 

 

Click on link above for statutory requirements of service of a valid default notice.

 

If the DN relied upon in your case is invalid, then, in addition to legislation (above) you can also rely upon the authority below:

 

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html

 

 

Godzilla

 

Kind regards

 

The Mould

[shamrocker]

Ok thanks. I will have a look through the information in the links. I'm not feeling very optimistic, but we'll see what happens.

 

Thanks again - I appreciate you taking the time to help!

[The Mould]

Further, can you also confirm if you were in any type of temporary agreement with the original creditor or indeed the new owner (assignee) that you were up to date with before this claim was issued against you?

 

Look forward to your reply as to the DN and the above and sincerely hope that I can help you on this matter.

 

Godzilla

 

Kind regards

 

The Mould

[The Mould]

Ok thanks. I will have a look through the information in the links. I'm not feeling very optimistic, but we'll see what happens.

 

Thanks again - I appreciate you taking the time to help!

 

You are most welcome dear fellow

 

If DN is invalid - then end of this present action against you because the claim cannot proceed in contravention of statute - namely, section 87(1) CCA 1974 (as amended) and as per the qualified judgment handed down by the Court of Appeal in Brandon v American Express (see above case link)

 

Godzilla

 

Kind regards

 

The Mould

[The Mould]

Sorry, my last post should read: namely, section 87 & 88 CCA 1974 (as amended) and as per the qualified judgment handed down by the Court of Appeal in Brandon v American Express (see above case link)

 

Godzilla

 

Kind regards

 

The Mould

[shamrocker]

Hi The Mould

 

No, I wasn't in any form of temporary agreement.

 

With regards to the DN, I can't see any apparent issues with it after reading through the link you provided above. I can post it up if you wish to take a quick look at it?

 

I don't know if it's relevant, but the primary reason why I made no further payments on this account is because the monthly payments almost doubled out of the blue, to the point where I could no longer keep up. Maybe I could have handled it differently, but it's too late to worry about that now. I don't know what gave the original creditor the right to hike the repayments. Consequently, I was hoping the CCA would be flawed. Should there also be T&Cs with the CCA?

 

Many thanks!

[The Mould]

“Hi The Mould

 

No, I wasn't in any form of temporary agreement.

 

With regards to the DN, I can't see any apparent issues with it after reading through the link you provided above. I can post it up if you wish to take a quick look at it?

 

I don't know if it's relevant, but the primary reason why I made no further payments on this account is because the monthly payments almost doubled out of the blue, to the point where I could no longer keep up. Maybe I could have handled it differently, but it's too late to worry about that now. I don't know what gave the original creditor the right to hike the repayments. Consequently, I was hoping the CCA would be flawed. Should there also be T&Cs with the CCA?

 

Many thanks”!

 

In the light of your last sentence, the amount stated in the DN as arrears due and owing cannot possibly be correct if the creditor unilaterally increased the monthly amount without notice to you and if the terms and conditions of the agreement do not make provision for such.

 

If this is the case, then you would have genuine grounds to be in dispute with the creditor and his action of doubling the monthly payments when the agreement does not allow such could well be viewed by the Court as unfair and in fact, if this is the case, I would go as far to say that the creditor has breached the agreement to your detriment! You should have set these material facts out in your Defence!

 

Do you have any correspondence from the creditor in relation to this increase in monthly payments?

You need a copy of the terms and conditions to the agreement and yes, the entire agreement must be legible.

The figure stated in the DN as due and owing must be correct!

 

Further, check the date of DN and the envelope it came in (if you still have it), does it allow you 14 clear days from date of issue to remedy the breach (pay the arrears stated therein)?

 

If the figure stated in a default notice as arrears due and owing is incorrect, then the default notice is invalid – irrefutable.

 

 

If the default notice does not allow the statutory 14 days for a debtor to remedy breach relied upon, then, again, the default notice is invalid – irrefutable.

 

Godzilla

 

Kind regards

 

The Mould

[theoldrouge]

Hi The Mould

 

No, I wasn't in any form of temporary agreement.

 

With regards to the DN, I can't see any apparent issues with it after reading through the link you provided above. I can post it up if you wish to take a quick look at it?

 

I don't know if it's relevant, but the primary reason why I made no further payments on this account is because the monthly payments almost doubled out of the blue, to the point where I could no longer keep up. Maybe I could have handled it differently, but it's too late to worry about that now. I don't know what gave the original creditor the right to hike the repayments. Consequently, I was hoping the CCA would be flawed. Should there also be T&Cs with the CCA?

 

Many thanks!

any document mentioned in the agreement, eg you agree to be bound by the t&cs,original t&cs needed to comply with s77/78/79 request

[shamrocker]

I will need to check the accuracy of my claim that the repayment amounts almost doubled, but I know there was definitely considerable jump and I cannot remember the actual balance figure actually increasing at that time. It is also shown on my credit file, so I will check this again. I actually made a number of payments at the higher amount but had to give in eventually as I couldn't cope and was borrowing from Peter, etc..

 

To be fair, the percentage stated in the CCA, from what I can make out, appears to coincide with the higher repayment amount. However, this was one of those cards that started off with e £3k limit, then got increased periodically along with receiving a bunch of credit card cheques. The repayments in the early days were £25, from what I can remember, then gradually increased (probably in line with the increasing balance), until the final big jump. Like I say, I should check this again, and will do so later today.

 

Therefore, I'm not sure the jump in repayment amount is technically any form of breach by them, more so that they were only asking for a lesser figure than that stated on the CCA (i.e. 2.5% of the balance). I suppose, they weren't adhering to their own terms in any case.

 

The DN does give 14 days and I don't have the original envelope, unfortunately.

 

Hope I've covered everything. Thanks again for taking the time to help me.

[theoldrouge]

to explain read conc 13.1.3 (4) and 13.1.4 (3) re terms and conditions-----

The request and the duty to give

 

CONC 13.1.3

01/04/2014

FCA

 

(1) A request must be from or on behalf of the borrower under sections 77 and 78 or from or on behalf of a hirer under section 79. This would include a friend or relative, a solicitor, a claims management company or other third party. Under the Data Protection Act 1998 and the Data Protection Principles, the lender or owner is not allowed to reveal such information to a third party without the authority of the borrower or hirer. It should therefore satisfy itself that the person making the request has proper authority to obtain the information. If a copy of such authority is not enclosed with the request, the lender or owner is entitled to reply by asking to see the authority.

(2) Where there are two or more borrowers or hirers and the request comes from one only, it must be nevertheless complied with, and the response must be given to both (or all) borrowers or hirers.

(3) If the recipient considers that another person is the lender or owner, the recipient should either inform the applicant of who it considers is the correct recipient or pass the request on to that person.

(4) In accordance with the sections referred to in (1) the firm must 'give' a copy of the executed agreement and any other document referred to in it and the required statement. In the FCA's view, sending a copy of them by ordinary second class post will suffice. Guidance on what constitutes a copy is given below and found in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB).

(5) The duty under the relevant section does not apply if no sum is, or will or may become, payable by the borrower or hirer under the agreement. This is irrespective of whether the agreement may have been terminated.

 

 

The copy agreement

 

CONC 13.1.4

01/04/2014

FCA

 

(1) The copy of the executed agreement should be a 'true copy' of the original. However, as confirmed in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB), in this context the term 'true copy' does not necessarily mean a carbon, photocopy, microfiche copy or other exact copy of the signed agreement. There is no obligation to provide a copy which includes a copy of the signature.

(2) The firm can reconstitute a copy. It can do this by re-populating a template of the relevant agreement form with the details of the specific agreement taken from its records. If the firm does provide a reconstituted copy, it should explain that that is what it has done, to avoid misleading the customer that this is a contemporaneous copy.

(3) The terms and conditions should be those applicable at the time the agreement was executed. The name and address at the time of execution must be included.

(4) The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice.

(5) If the reason why no copy is given in response to a request under these sections is that there never was an executed agreement, the firm should acknowledge this in its response.

(6) If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also eithera) a copy of the latest variation given in accordance with section 82(1) of the CCA relating to each discrete term of the agreement which has been varied; or,

(b) a clear statement of the terms of the agreement as varied.

 

(7) Further, section 180(1)(b) of the CCA and regulation 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 expressly allow certain matters to be omitted from the copy. There may be excluded from the copy of the executed agreement to be provided under these sectionsa) any information relating to the borrower, hirer or surety, or information included for the use of the lender or owner only, which is not required to be included by the or any regulations made under the CCA as to the form and content of the agreement;

(b) any signature box, signature or date of signature;

© in the case of pawn agreements, any description of the article taken in pawn.

 

 

 

The statement of account

 

CONC 13.1.5

01/04/2014

FCA

 

If the firm possesses insufficient information to enable it to ascertain the amount and date of any sum which is to become payable, it is sufficient to indicate the basis on which they would fall to be ascertained.

 

Failure to comply

 

CONC 13.1.6

01/04/2014

FCA

 

(1) Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.

(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.

(3) In particular, a firm should not in such cases either threaten court action or other enforcement of the debt or imply that the debt is enforceable when it is not.

(4) The firm should, in any communication or request for payment in such cases, make clear to the customer that although the debt remains outstanding it is unenforceable.

(5) In the judgment of McGuffick -v- The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm) Flaux J held in a case under section 77 of the CCA that passing details of a debt to a credit reference agency and related activities do not constitute enforcement under the CCA. He also held that steps taken with a view to enforcement, including demanding payment from a claimant, issuing a default notice, threatening legal action and the actual bringing of proceedings, are not themselves 'enforcement' under the CCA. On the other hand he confirmed that the actions listed under sections 76(1) and 87(1) of the CCA did amount to enforcement notwithstanding that some of the actions 'less obviously' amounted to enforcement. These actions are demanding earlier payment, recovering possession of goods or land, treating any right conferred on the debtor by the agreement as terminated, restricted or deferred, enforcing any security and terminating the agreement.

(6) While Flaux J agreed with the decision of HHJ Simon Brown QC (sitting as a Deputy High Court Judge) in Tesco Personal Finance v Rankine [2009] C.C.L.R. 3 that commencing proceedings was not enforcement, but a step taken with a view to enforcement, both he and HHJ Simon Brown appear to have been drawing a distinction between commencing proceedings and entering judgment in those proceedings.

(7) This guidance deals only with the question of whether an agreement is unenforceable in relation to sections 77, 78 and 79 of the CCA. A lender's rights to enforce an agreement may be restricted for a variety of reasons, by the Act, by or under the CCA and by virtue of the general law.

(8) However, where a firm is aware that an agreement is unenforceable because of non-compliance with an information request under section 77, 78 or 79 of the CCA, a firm should make it clear when communicating to a customer about a debt that the debt is in fact unenforceable. Failure to do so, in that case, would in the FCA's view unfairly mislead the customer by omission. Any communication that implies expressly or otherwise that a debt is enforceable when it is known that it is not, would be misleading. One way to avoid this would be for the firm to explain to the customer the full meaning of 'unenforceable.

[shamrocker]

Thanks theoldrouge. I will certainly go through that in some detail to see how it helps my case. Since I've come this far, I may as well trouble them for the t&c doc.

[shamrocker]

Guys

 

The next deadline is for requests to inspect any original documents. At this point, do I ask to see the original CCA, given that the one provided in the disclosure is a blurry copy? Should I request anything else at this stage - e.g. T&Cs, despite the fact that they have not been provided at disclosure.

 

How should I play this?

 

I look forward to your advice.

[shamrocker]

Bump

[citizenB]

I think you can only ask to inspect documents that are mentioned on their disclosure list, shamrocker. If it isnt there, then they are not permitted to use in court anyway.

 

Just be aware that if you have disclosed something and they request a copy of it.. identify any copy you send htem in someway. It has not been unknown for claimants to use copies of stuff provided by the defendant, especially if it is in better condition !

[shamrocker]

Thanks CitizenB!

 

They have listed the CCA, but provided a blurry copy that cannot be read properly. They have not listed or provided any T&Cs.

 

I don't know if you've read the progression of my case above, particularly the last ten or so posts, but I'm wondering if I need to be doing anything at this point. My defence is solely based on the lack of a CCA as they could not produce it prior to me submitting a defence. Now the blurry copy has been produced at disclosure.

 

Should I just leave it and see how things develop? I have no idea what comes next in the process and what I may regret not acting upon at this stage, if you know what I mean.

[citizenB]

I will ask andyorch to see if he can help further.

[shamrocker]

Ok, great. Thanks a million!

[Ganymede]

Thanks CitizenB!

 

They have listed the CCA, but provided a blurry copy that cannot be read properly. They have not listed or provided any T&Cs.

 

I don't know if you've read the progression of my case above, particularly the last ten or so posts, but I'm wondering if I need to be doing anything at this point. My defence is solely based on the lack of a CCA as they could not produce it prior to me submitting a defence. Now the blurry copy has been produced at disclosure.

 

Should I just leave it and see how things develop? I have no idea what comes next in the process and what I may regret not acting upon at this stage, if you know what I mean.

 

How "blurry" is it? Can you scan and post a copy of it up on here?

[The Mould]

Thanks CitizenB!

 

They have listed the CCA, but provided a blurry copy that cannot be read properly. They have not listed or provided any T&Cs.

 

I don't know if you've read the progression of my case above, particularly the last ten or so posts, but I'm wondering if I need to be doing anything at this point. My defence is solely based on the lack of a CCA as they could not produce it prior to me submitting a defence. Now the blurry copy has been produced at disclosure.

 

Should I just leave it and see how things develop? I have no idea what comes next in the process and what I may regret not acting upon at this stage, if you know what I mean.

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

Good afternoon Shamrock

The above Harrison v Link Financial Ltd judgment is a key authority which deals with a creditor’s numerous breaches, including irredeemable breaches of the CCA 1974 (as amended), have a read of this case to establish if there is anything therein that you can rely upon for your own Defence/arguments that may undermine/defeat this claim against you.

Godzilla

Kind regards

The Mould

[shamrocker]

Let's try then

[shamrocker]

Thanks The Mould. I will certainly have a read.

 

My main concern is that I may miss the deadline to inspect the CCA, or does it really matter at this stage...or anything else for that matter?

 

As you can probably tell, all this is a bit beyond me - but capable of creating a debate, given possession of the relevant information.

[The Mould]

Thanks The Mould. I will certainly have a read.

 

My main concern is that I may miss the deadline to inspect the CCA, or does it really matter at this stage...or anything else for that matter?

 

As you can probably tell, all this is a bit beyond me - but capable of creating a debate, given possession of the relevant information.

 

The Claimant has already provided you with a copy of the CCA that he intends to rely upon.

 

What does the directions say as regards disclosure - 7 or 14 days to request inspection upon service of Disclosure List?

 

Don't worry about being new to all this litigation and CPR crap, because we will all help you as best we can as and when we are able to my dear fellow. We are all learning.

 

Research & study on your case and post away with all your questions on this matter

 

 

Godzilla

 

Kind regards

 

The Mould

[citizenB]

 

Legibility of notices and copy documents and wording of prescribed Forms

 

2.—(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper.

 

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed agreements or in Notices of Cancellation Rights sent by post under section 64(1)(b) or (2) of the Act without any alteration or addition, except that—

 

(a)the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed by these Regulations; and.

 

(b)every Form shall be completed in accordance with any footnote..

 

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced in addition to any such Form.

 

(4) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

 

(5) Where words are shown in capital letters in any Form prescribed in Parts I to IV of the Schedule to these Regulations and are reproduced in copies of unexecuted or executed agreements they shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in that Form except lettering inserted in accordance with paragraph (2) above and no less prominence than that given to any other information in the copy apart from the heading to the agreement or copy, the annual percentage rate of charge for credit, trade names, names of parties to the agreement or lettering in the document inserted in handwriting.

 

(6) Where words are shown in capital letters in any Form prescribed in Part VI of the Schedule to these Regulations and are reproduced in Notices of Cancellation Rights sent by post under section 64(1)(b) or (2) of the Act they shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in that Form except lettering inserted in accordance with paragraph (2) above.

 

 

 

 

From andyorch ....

 

 

If its illegible then its deficient and unenforcible (with the right DJ dealing with the claim)

 

Legibility of notices and copy documents and wording of prescribed Forms

 

The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the "

[shamrocker]

Hey guys

 

Just an update. This week I received documents related to an application for summary judgement. The defendant has no case, etc, etc. Any advice on that?

 

Prior to that, I wrote and asked for a legible copy of the CCA they used in disclosure. I have not had a response to that.

 

What are my options here?

 

Many thanks!

[shamrocker]

Further to above, I'll just add this in to see if you deem it important.

 

With regards to repayments, back in mid-2011 I was paying the minimum via Direct Debit. For example, the repayment amount was around £190 on a balance of £14000. Then suddenly the minimum repayment jumped to around £330. I don't recall receiving any letters informing me of this and I'm pretty positive that there were no other factors like coming off a 0% rate or increase in APR. There's something in my head telling me it was related to them needing to increase the minimum percentage balance repayment - e.g. £5 or 2%, whatever is greater. This increase was the straw that broke the camel's back, so to speak. I managed to make the increased repayments for about 6-8 months before I just stopped and put the mortgage as a priority. It is all reflected on my credit file.

 

Does this have any implications from a legal perspective? The manner in which they dished out the credit in plentyful amounts and then turn the screw once they're maxed out leaves me feeling a bit stupid for ever lapping it up, albeit wiser for the experience.

 

Within the documents I received from the claimant (mentioned above) that indicated the application for summary judgement, also included is their witness statement. As also stated above, I requested a legible copy of the CCA after disclosure. I now note that there is a clearer copy of a CCA in with the witness statement. It has my name and address printed on it, albeit not in the same style as my name and address is printed on the blurry signed CCA they provided previously. There is no signature or date on this one.

 

Is this their attempt at providing a legible copy of the CCA? How will it stand in front of a judge, bearing in mind how their historical management of the account.

 

My witness statement is due in within the next couple of weeks. Does anyone have any pointers on how to approach this? Obviously, I will have a thorough read through previous threads for advice already given there.

 

Many thanks!

 

Sham