MBNA court Activ Kapital

[shamrocker]

Hello,

 

Yes! Me again!

 

I have today received a court summons, issued by Activ Kapital in respect of a credit card balance with MBNA (Virgin). The total being claimed is £15000+.

 

Obviously, I'm not in a position to pay up and I don't honestly think I can afford to make any sort of serious monthly payment without resorting to family living off beans on toast.

 

The card was issued in 2005 and I think it was signed for online, however that bit is a bit sketchy. I recall the credit limit being £13,500 but it had started out at something like £3,500 and I was given regular limit increases by Virgin, plus batches of interest free credit cheques. Then one month my interest payments doubled and my finances ground to a bit of halt soon afterwards.

 

Default is stated as September 2012. Debt was assigned to AK a short while after.

 

This is a very serious matter for me and I'd like it resolved without losing the roof over my head.

 

Can you guys advise if there is potential for me defend the claim. I assume I'll need to get hold of the relevant legal documentation asap and also be willing to turn up in court.

 

Your advice on what to do next and what to expect further down the line would be very much appreciated.

[shamrocker]

Ok, having done some reading on the forum, I have a few questions:

 

Does the fact that I stopped making payments mean I am stumped? I did speak to them (may have been AK) prior to the default date and telling them I couldn't afford to make a satisfactory monthly payment (my offer of £10 a month wasn't deemed acceptable).

 

Is it worth me replying to the court stating my intention to defend the claim, and then hoping I can uncover something out of place that makes the debt unenforceable? Would the 'unenforceable' eventuality be a common occurrence, or am I clutching at straws?

 

Would it therefore be worthwhile chasing down the original credit agreement, as per many cases on here?

 

I don't recall any written default notice being received - how important is this? Is any proof of delivery/receipt needed with these things?

 

I'd be interested to hear some views/advice.

 

Thanks

[shamrocker]

After reading around the forum in more detail, I discovered the importance of the information contained within the 'Particulars of Claim' section on the court document. i.e. whether it makes mention to the specific agreement to which the claim applies, presence of default notice, etc. Therefore, I have listed the details below in the hope of attracting some comments (individual sums and dates changed slightly):

 

The claimant claims the sum of £15,970.57 for debt and interest. On 26/07/05 the defendant entered into an agreement with MBNA for a credit card under reference 0123456789012345. On 12/09/12 the defendant defaulted on the agreement with an outstanding balance of £15,009.98. On 22/11/12 the debt of £15,009.98 was assigned to Activ Kapital Portfolio AS Oslo Zug Branch. Notice of Assignment was sent to the defendant in accordance with s136 Law of Property Act 1925. AND THE CLIENT CLAIMS - 1. The sum of £15,970.57, 2. Statutory interest pursuant to Section 69 of the County Courts Act 1984 at a rate of 8.00% per annum from, etc..etc..

 

Thanks

[shamrocker]

Thanks Lukeman, I appreciate your advice. Who was the original creditor in your case?

 

If I sort the Acknowledgement of Service and state that I will defend the whole claim, with the intention of going after the CCA and SAR, if the CCA come back and seems legit can I then withdraw my defence and opt for a different option later? If the CCA is fine, does that end my chances of defending the claim? I don't recall ever receiving a default notice - where does this fit in to the whole scheme of things?

 

I've read some good info on here in regards to CPR so I should be fine with this. I will try to get this done asap and posted off.

[shamrocker]

In my case the OC was GE Money (edge store card).

 

In regards to Acknowledgement of Service and other legal fillings I would urge the experts (Site Admin) to assist as I wouldn't want to give you wrong info.

 

Mate, don't panic too much yet and if I were you I would send the SAR to MBNA asap as it takes 40 days. At the same time send the request for disclosure under CPR to AK by recorded delivery.

 

Lastly in your earlier post you mentioned online application ? did you sign the form and sent it back ?

 

Please let us know how you applied for this card, do you still have the original application form, maybe check your email account...

 

I'm really not sure on how I applied for the card. I've had a few over the years and I do recall physically signing some and posting them back to the company, but all applications would have initiated online and I certainly didn't sign something for them all. Does this, in your view, affect matters? If so, in what way?

 

My only real defence with this case is the paperwork, but the more I've been reading other threads the more I'm wondering if defending is worth the hassle, particularly when reading about the potential for costs being added. Or, is it worth at least pushing ahead with the a CCA request to AK. The particulars only mentions 'an agreement' but nothing on the exact nature of the agreement nor it's legal significance.

 

I would certainly appreciate some admin advice on this, as you suggest.

[shamrocker]

On receipt of any claim the first important rule is to request the CCA which the claim relies upon even before a CPR...they can ignore the CPR but not a section 77/78 request CCA.

 

Andy

 

Thanks Andy. In requesting the CCA, is this done AFTER dealing with the acknowledgement of service and, presumably, stating that I wish to defend the claim?

 

If the CCA turns up and is a solid agreement, can I then take a change of direction and then admit the claim?

 

I am I right in assuming it's pointless even planning for a specific line of defence until the CCA shows up (or does not show up)?

 

Thanks again.

[shamrocker]

Regards

 

Andy

 

Thanks Andy. I appreciate you taking the time to offer advice.

 

One final thing before I go looking for the correct letter template(s) - assuming the CCA does not show up, is there any realistic chance for the absence of a CCA to provide me with, for want of a better term, an odds-on chance of winning my defence case in front of a judge? I have read many different threads on the forum which have kind of sent my head in a spin, but my overriding thoughts are that the claim is very likely to be awarded in the absence of the CCA because the judge sides with the claimant. I also read a warning you gave to someone that many cases are lost and end up having costs added.

 

Might the claimant back off if presented with this request when they don't have the proper agreement?

 

I don't really want to chase a lost cause and certainly can't afford for the claim to increase from the level it's at right now. Sorry if I'm a bit naive on these matters, I'm slowly gaining a better understanding with reading the various threads belonging to others.

[shamrocker]

I appreciate if this proceeds it will be in the Fast Track so you must be aware of the costs risks.The agreement is pre 2007 so the original agreement will be required to enforce the debt.

Requesting a copy of the agreement is your legal right as is requesting documentation to clarify the alleged debt and that due process has been followed before instigating litigation.

 

If they want a judgment and probably a Charging Order might has well make them work for it.

 

Thanks Andy. Fully understood and I agree, may as well see where a few letters gets me.

 

Should I do this acknowledgement of service as soon as practicable or leave it to the latest possible time and therefore, maybe make them sweat?

 

Lastly, on the CCA letter, do I have to sign it and do I have to provide proof of ID? I have read conflicting advice and don't want to compromise my efforts over something quite trivial.

[shamrocker]

Yes dont be in rush to acknowledge...just before the allowed time expires.There is no requirement to sign a section 77/78 request but they could use it to frustrate your request so I would advocate signing it in a unique way...line through it or on a background of dots.No proof required.Just make sure its recorded and you have a paper trail.

 

Cheers Andy! I will report back on this.

 

Is there any need to do a SAR to MBNA at the same time, or shall I leave this for later?

 

Sorry for all the questions - they just seem to occur to me every time you provide me with info. I think I'm done now though.

 

Thanks again - greatly appreciated.

[shamrocker]

Is this the correct CCA request letter?

 

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

[shamrocker]

Important to head it it " I do not acknowledge any debt with your Company "

 

Hi Andy

 

Sorry, I did not see your advice above and the letter was sent.

 

I've had an acknowledgement back from them. They say they cannot provide the requested documentation within the requested timescale and, therefore, the account has been put on hold and removed from the collection process whilst they await the requested information.

 

Can you advise on my next step. I still have not completed the Acknowledgement of Service. The last day is Monday, I believe, and my intention was to do this online.

 

Many thanks!

[shamrocker]

Then complete it and state your intention......defend all I assume?

 

Hi Andy

 

On the basis of non-compliance with CCA, yes.

 

Once I've acknowledged the claim with the court, is it simply a case that I file a defence unless I am advised differently by the court? i.e. AK drop the claim.

 

I'm just trying to get my head around the possible chain of events that may lie ahead.

 

Would it be worthwhile trying to chase down some other info relating to the account from MBNA in the meantime? What about the Default Notice? I have no recollection of ever receiving one - though, admittedly, I have no understanding as to it's significance in any prospective defence of this claim.

 

Thanks again.

[shamrocker]

Thanks Lukeman. Nice to see you're still around and offering support.

 

I have a few days yet to file, so will leave it as long as possible.

[shamrocker]

Have you not already requested information vis a CPR 31.14?

 

Andy

 

 

No, I haven't Andy. I presumed I only needed to to ask for the CCA based on advice given, though I did wonder about it.

 

I know there's plenty of info about it on the forum so I won't take up any of your time by asking what I should be asking for and how it assists with the defence, but before I go looking, is this still a worthwhile exercise at this stage?

[shamrocker]

Ok, great. I'll try to do some reading up on it in readiness for it's use at a later stage. In the meantime, we're approaching the deadline for acknowledgement - date of issue, e.g. 25th September would make the deadline 14th October, correct?

[shamrocker]

Tomorrow is the deadline to AoS yes.

 

Ok, I have completed the AoS and indicated that I would defend the claim. I have still not received any CCA as per my request to AK.

 

Is there a standard defence with regards to the claimant not being able to provide the CCA? Tell me to go read through the forum if the answer lies there, though I though it was worth asking first as I usually end up reading through a load of totally irrelevant material. I haven't had a chance to read up much yet as I've been busy and just popped on the forum quickly as I am aware that the clock is ticking.

[shamrocker]

Thanks, that's a great help.

 

P.S. When is best time to submit it? At the last minute?

[shamrocker]

Never leave it to the last possible hour...a day before its due?

 

A quick question with regards to defence - using the above example draft, does it need to have the POC listed above the defence as a kind of introduction and then labelled 'Paragraph 1', etc... It's this Paragraph 1 bit that's confusing me. Or, to put it another way, assuming the above example fitted my situation perfectly, would this be all that I'd need to include in the defence?

[shamrocker]

No not on the submitted version thats for you to refer to their points...if they have 5 points (breakdown their points of their particulars) you would have 5 responses etc etc.

 

They never number their particulars ....they should to be compliant so you do it for them.

 

If you dont like the phrase " paragraph " call it point 1 and point 2 and so on.

 

 

Thanks Andy. Another question - (bearing in mind your example is a very good fit for my POC) you state:

 

"1. Paragraph 1 is not admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with the Claimant as the Defendant did not enter into any Agreement with the Claimant.

2. Paragraph 1 is not admitted with regards to the Claimant terminating the alleged contractual Agreement as the Defendant did not enter into any Agreement with the Claimant."

 

My POC states 'the defendant entered into an agreement with MBNA' - therefore, should I still retain your wording as above and refer to 'not admitted with regards to entering into an Agreement with the Claimant'?

 

BTW, still no news on my CCA request.

[shamrocker]

Ok, think I've finally got it now. Thanks a million!

 

Here goes...

[shamrocker]

In your case no.....

 

Back again...sorry! The Consumer Credit Act is not mentioned within my POC, but I assume it was referred to in the POC you drafted the above example for. Therefore, should I draw upon it at all in my defence?

 

I refer to these points:

 

"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."

 

Although the Act was not mentioned, should I; a. keep the wording you have used; or, b. pull it into the defence from a different angle i.e. the Agreement should be compliant to the Act, but isn't and therefore...etc, etc..?

[shamrocker]

Thanks Andy. We're there now I think.

 

It has been a bit of a steep learning curve. More to come, no doubt.

 

Your help has been very much appreciated on this.

[shamrocker]

I've submitted it via MCOL Andy

 

It is very similar to yours, except I altered a little of it to keep it within the context of the POC, particularly to whom the alleged agreement was made with (MBNA). Then, further on, I referred back to the claimant with regards to monies currently owed, pretty much as you stated it. It was really only the first few points that I had to change.

[shamrocker]

Here it is:

 

1. Paragraph 1 is not admitted with regards to the Defendant*

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

Claim ('the Agreement') with the MBNA as the Defendant did not*

enter into any Agreement with MBNA.

 

2. Paragraph 1 is not admitted with regards to 'the defendant*

defaulted' on the Agreement, as the Defendant did not enter into*

any 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.

[shamrocker]

Yes. So I should have accepted that bit? I presumed this bit was denied due to absence of CCA? Looks like I've missed the point with some of this.

 

Is it possible to change this bit with them...or too late? Would it make any difference anyway?