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    • nothing you can do can product against the very rare judge lottery syndrome.
    • not sure why you added the blue line I've highlighted? that's no in the we gave you.   as for your question... PRAC's roboclaim computer knows when the account was taken out, after all it raised the claim and checked everything carefully first before issuing the request via northants bulk courts equally inept roboclaim computer... 
    • I've been researching in preparation of compiling my particularised defence/WS.    I'm none too happy that some judges still seem to be siding with DCAs and seemingly brushing aside anything that we have assumed to be "necessary" for DCAs to have a winning case.    Reading a recent "summary" from another poster (another thread with case similar to mine - very old, illegible application form, no default notice, reliance on their own software to prove it was ever sent) and the judgment made in favour of the DCA and even suggesting that there was no "agreement with the DCA, they simply owned the debt, not the agreement"  Makes me very nervous.    Especially if cases like this will be judged on "probability" - the probability that if I signed the original application form, then I must have taken out the credit card and racked up the alleged debt as shown in statements enclosed in their WS (and dated some ten years later).   Is it ok to post some "evidence" I've found from elsewhere?    This is in line with my fears that regardless of how hard one tries to rebut the "lack of evidence" produced by DCAs for chasing these very old "alleged" debts, it does appear to come down to the luck of what judge you get on the day and how much they can be swayed by the DCA solicitor.    A quick Google search produced the following - from one case - this related to a credit agreement - which resulted in someone being made bankrupt - that person appealed the bankruptcy order on the grounds of defective credit agreement and default notice and this was the appeal judge's decision:   The necessary formalities for the entry into the regulated consumer credit agreement (which related to the debt in issue) were not complied with; The default notice served in respect of that credit agreement was defective.   The First Ground The Appellant argued that she did not receive the terms and conditions when she entered into the credit agreement and, accordingly, section 61 of the Consumer Credit Act 1974 (“CCA”) had not been complied with and the agreement could not be enforced. The agreement had been entered in 1995 and, whilst it had provided a microfiche copy of the front page of the application, the Respondent had been unable to provide a copy of the terms.   Despite the terms not being produced, the District Judge had found that, in the circumstances, it was very likely that such terms existed and would have been provided to the Appellant when she entered into the Agreement. Mr Justice Mann held that this was a finding that the District Judge was entitled to make.   Further, Mr Justice Mann found that it was implicit from the District Judge’s findings that she considered that the terms and conditions not only existed but had been subscribed to by the Appellant’s signature and, consequently, the requirements of section 61 CCA were fulfilled. Mr Justice Mann held that this was also a justifiable finding which should not be interfered with on appeal.   The Second Ground The Appellant also argued that the default notice upon which the Respondent relied did not comply with the Consumer Credit (Enforcement, Default and Termination Notice) Regulations 1989 because it stated the full balance of the account rather than the total of the missed payments. The Respondent argued that, as a result of the missed payments, it was contractually entitled to the entire balance subject to the service of the appropriate notice, a requirement which was fulfilled by the default notice itself and, consequently, the sum required to remedy the breach was the entire amount.   Mr Justice Mann agreed with the Respondent and the District Judge, holding that: “If by the time the default notice is served circumstances have arisen which entitle the lender to recover not merely sums which might be regarded as arrears, by which I assume is meant accumulated minimum payments, but also the whole of the sum, then they are entitled to claim that sum, and the sum to require to remedy the breach for non-payment of that sum is the payment of the whole sum due. The bank is not confined, at that stage, to claiming merely the amount of arrears if it has an accrued contractual right to have the whole of the sum.”   Do judgments like these not mean that a lot of what you guys do on here (and for which I and many others are VERY grateful) somewhat redundant. What is happening to judges just accepting "well, the terms must have been there if you signed it" -    Feeling quite nervous now.
    • we know it wasn't done to avoid enforcement we understand completely. but that doesn't take from away the fact that it happened   you can't appeal the pcn's on the basis that 'it was not his vehicle to levy upon'. the law clearly states otherwise.          
    • here is a question for you, is yu house divided up into a retail/business area  and domestic area for business rates purposes? If not why on earth are you paying business water rates? ceertainly not for tax purposes as you can claim any legit expense without having to reclassify your home as a business premises. i would be stopping this nonsense and goping back to whatever water supplier is the domestic one for your area. there is stuff all they can do to get the £40 from you whan you do that.
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shamrocker

MBNA court Activ Kapital

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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.

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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

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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

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Hi Shamroker,

 

I am not expert and a newcomer here, just want to share my experience with Aktiv Kapita.

 

I took them to Court and WON for registering a false default with CRA and chasing me for a debt that did not exist.

 

These guys are willing to play dirty, thought you should be aware.

 

If I were you I would urgently request true SIGNED copy of credit agreement, Notice of termination, Notice of Default, Notice of Assignment and statement of account.

 

I believe these can be requested under certain CPR which the site admin could assist you on. (Ask Admin for Template under CPR.....)

 

In my case AK had tried to fake the above documents so I would suggest you urgently SAR MBNA and enclose £10 PO. In order to get genuine account information.

 

Once you have all the info and disclose from AK then could decide what to do in regards to ple.

 

Lastly make sure you stick to the time restriction for Acknowledgement of Service and filling upon receiving disclosure from AK.

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You should do the Acknowledgement of Service first check the deadline.

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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.

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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.

 

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...

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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.

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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


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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.

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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? I normally advise as soon as the envelope hits your doormat

If the CCA turns up and is a solid agreement, can I then take a change of direction and then admit the claim? Yes you can withdraw but can they comply?

 

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)? You can always draft a vague CPR compliant holding defence stating you require further information.

 

Thanks again.

 

Regards

 

Andy


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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.

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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.


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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.

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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.


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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.

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BY all means send a DSAR but dont rely on it in time for a defence......you can send CPR 31.14 or 18 for documents referred to in their particulars and information thats not using the 18.


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Is this the correct CCA request letter?

 

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

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


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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!

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


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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.

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Indeed complete acknowledgement before the deadline.

 

Stand your ground mate and tell them to put up the cca or shut up frankly.

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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.

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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. Yes 14 days after Acknowledgement and you wont be advised of anything until a defence is submitted and on time

 

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.

 

Have you not already requested information vis a CPR 31.14?

 

Andy

 


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