Restons/ME III Claimform - MBNA Card - poss SB'd

[iyam71]

I received one of these a week or so ago.

 

To cut a long story short

they sent a pre legal protocol letter out in July.

I replied telling them they were wasting their time as I'm skint/no income etc

to which their reply was to send out one of their financial questionnaires.

 

I wrote back refusing to give them my details and asked them to provide a Notice of Assignment and CCA.

They would not comply as the letter was unsigned

so I sent a formal s.78 request to which I've had no reply.

Then the claimform arrived.

 

I'm wondering how to go about defending this in light of the fact I acknowledged the debt in my first letter.

Does this count for anything legally or is the burden of proof always on the claimant regardless?

 

The full details are as follows:

 

Issue date 26/9/16

POC:

 

 

1.The Claimant claims payment of the overdue balance due from the Defendant(s) under a contract between the Defendant(s) and MBNA dated on or about Feb 14 2008 and assigned to the Claimant on Jun 24 2016.

Date 06/07/16,

Item Default Balance, Value 1902.

Post Refrl Cr Nil. Total 1902.

 

N of A and Defalt Notice were both received.

 

Regular statements of account received, notice of sums in arrears received regularly until May 2013 only.

 

Originally MBNA - assigned to DLC/Hillesden Sept 2011, then to DLC/ME III Mar 2016.

 

Last payment Aug/Sept 2010.

 

No dispute with MBNA, but wrote to them in Dec 2010 to explain my financial position and why I couldn't pay them.

 

Going to send a 31.14 over the weekend.

 

 

Any help/assistance with how to go about defending would be much appreciated.

[dx100uk]

last payment was to whom?

[iyam71]

Mbna.

[dx100uk]

id go ring mbna

ask last payment date

 

 

bet its statute barred

regardless to whatever letters you wrote.

[iyam71]

The last payment was definitely made before 20/9/10. I was under the impression any correspondence acknowledging the debt reset the SB clock, so to speak.

[dx100uk]

What did you send

Did you sign the letter

Might already have been SB'd anyway

[iyam71]

Wrote to them in July to explain my financial circumstances, but did not sign the letter. I also sent a similar letter in Dec 2010 which may have been signed - too long ago to remember.

[dx100uk]

i think i'd go file the SB defence myself

 

 

have you acknowledged the claim yet on MCOL website?

[iyam71]

Acknowledged it already. Apart from the s.78 request thats all I've done so far.

[dx100uk]

The following defence is all you need if it is SB

1 The Claimant's claim was issued on (insert date).

2 The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980.

.

If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

.

3 The Claimant's claim to be entitled to payment of £[insert figure from their POC] or any other sum, or relief of any kind is denied.

..

..ends..

[Laura Thyme]

so I sent a formal s.78 request to which I've had no reply.

Then the claimform arrived.

 

I'm wondering how to go about defending this in light of the fact I acknowledged the debt in my first letter.

Does this count for anything legally or is the burden of proof always on the claimant regardless?

 

The full details are as follows:

 

Issue date 26/9/16

 

POC:

 

 

1.The Claimant claims payment of the overdue balance due from the Defendant(s) under a contract between the Defendant(s) and MBNA dated on or about Feb 14 2008 and assigned to the Claimant on Jun 24 2016.

Date 06/07/16,

Item Default Balance, Value 1902.

Post Refrl Cr Nil. Total 1902.

 

N of A and Defalt Notice were both received.

 

Regular statements of account received, notice of sums in arrears received regularly until May 2013 only.

 

Originally MBNA - assigned to DLC/Hillesden Sept 2011, then to DLC/ME III Mar 2016.

 

Last payment Aug/Sept 2010.

 

No dispute with MBNA, but wrote to them in Dec 2010 to explain my financial position and why I couldn't pay them.

 

Going to send a 31.14 over the weekend.

 

Any help/assistance with how to go about defending would be much appreciated.

You may want to mention the non-compliance with s.78 in your defence as well because the debt cannot be enforced while in default. You say above last payment was in Aug/Sep 2010, claim issued Sep 2016, you are cutting it quite close here. Cause of action cannot be last payment date, you need at least an extra month for a missed payment. There have been cases where the courts have said the DN date is when the CoA runs from and MBNA often send their DNs very late. I got one in Sep 2010, not paid since Jan 2010. You also say your previous letter acknowledged the debt. Better cover yourself as much as you can.

 

Also check the DN, it's not just a matter of receiving it, does it give you at least 14 days to remedy? Does it quote a date to pay by or just "14 days"? Does the amount demanded match the amount of the arrears at the time? The devil's in the detail and it's best to get all this in your defence in case the SBd argument doesn't hold enough water.

[dx100uk]

you should not mix anything with an SB defence

 

 

an sb defence is absolute and theres no need to refer to anything else

as its immaterial if or if not they hold any paperwork.

 

 

do you know the defaulted date?

should be on your credit file?

[Laura Thyme]

you should not mix anything with an SB defence

So if the court decides that the debt is not SBd, the OP's defence will be out the window and they'll have a CCJ.

an sb defence is absolute and theres no need to refer to anything else

Absolute as long as the court agrees with the SBd argument, which is touch and go in this case due to last payment dates only just six years ago and a potential written acknowledgment of the debt.

as its immaterial if or if not they hold any paperwork.

It's not immaterial. s.78(6) clearly says that the creditor is not entitled to enforce the agreement if they fail to comply with s.78(1).

do you know the defaulted date?

should be on your credit file?

Credit file default dates are immaterial for the purposes of limitation.

[dx100uk]

if the claimant wants to dispute the SB status that will be known long before it gets to a court

and the witness statement can be used to deal with any developments

 

 

you cant mix section 78 or anything with an SB defence so it is immaterial , as it makes you look a bit of a monkey being not confident with an SB defence

 

 

quite aware if you go read other threads than there is no relationship whatsoever between SB date and defaulted date.

[Laura Thyme]

if the claimant wants to dispute the SB status that will be known long before it gets to a court

and the witness statement can be used to deal with any developments

The witness statement is not the place to address fundamental issues not mentioned in the defence such as non compliance with s.78.

you cant mix section 78 or anything with an SB defence so it is immaterial , as it makes you look a bit of a monkey being not confident with an SB defence

With SB it's not a matter of showing confidence. There are times when being a credible witness and looking confident matters, but that's more to do with saying what you did or didn't do when you took out the card, etc. With SBd the burden of proof is on the claimant and saying that they have also not complied with s.78 of the CCA doesn't hurt. Limitation does not extend to CCA requests so they still have a duty to comply as long as there's an outstanding balance and account is not subject to judgment.

[dx100uk]

no harm in sending CCA / CPR for sure

 

 

but I still doubt the wisdom of mentioning this within an sb defence as nothing else matters

an sb defence is absolute

 

 

anyway lets not disrupt the op's thread too much......

[Laura Thyme]

no harm in sending CCA / CPR for sure

 

 

but I still doubt the wisdom of mentioning this within an sb defence as nothing else matters

an sb defence is absolute

anyway lets not disrupt the op's thread too much......

This is for the OP's benefit. Without having more info than what was posted above, it's not easy to comment further, however, it doesn't sound like a bulletproof SBd case.

[AndyOrch]

I would tend to agree as this is close and probably prudent to enter a normal defence in this instance.

 

Andy

[iyam71]

Thanks for all the above input.

 

If the SB clock starts from the date of the last payment or acknowledgement of the debt (as is states on the Stepchange site) then I only have the latter to worry about. If not then the relevant dates are 7/4/11 for the Default Notice, 27/4/11 for the remedy date, and the date of default on my credit file is 31/5/11. The last payment was made in Sept 2010, definitely before the 20th.

[AndyOrch]

Here is an amended statute barred defence that I recently drafted for when the claim is borderline.

 

1 The Claimant's claim was issued on DDi/mm/yyyy.

2.The date last payment made was the dd/mm/yyyy

 

3.The Default Noticed was issued dd/mm/yyyy and served several months after the initial breach thus the cause of action delayed by X months and the Limitations period prolonged to 6 years and X months which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run.

 

4.Therefore the Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

 

5.The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied.

[AndyOrch]

You can also throw in the following ....

 

The Financial Conduct Authority rules state:

CONC 7.15.4 Notwithstanding that a debt may be recoverable, a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period.

CONC 7.15.8 A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred.

[iyam71]

Thanks for the proposed defence Andy.

 

When you refer to the claim as being borderline is that down to not knowing the specific dates involved, or is it because the cause of action is open to different interpretations?

[AndyOrch]

It basically cover both arguments...when a default should be listed...what the Statute of Limitations specifies in its legislation...because its a grey area and Judges interpretations vary considerably

[Laura Thyme]

When you refer to the claim as being borderline is that down to not knowing the specific dates involved, or is it because the cause of action is open to different interpretations?

The cause of action is open to interpretation. It could be when you first missed a payment but there's been arguments saying that, since the Consumer Credit Act requires a default notice to be issued before the account can be terminated, the full amount demanded, etc., then the cause of action should be when the DN is issued. A judge actually went along with that in court.

[AndyOrch]

And plenty have also gone along with the first contractual missed payment...so as stated a grey area and varies by district judges.