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Link/Kearns claimform - old MBNA debt - poss SB'd *** Claim Dismissed with Costs***

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Hi guys!

 

I've done quite a bit of reading, both here and on [removed], but, at the same time, would welcome any reassurance and / or advice anyone feels able to offer.

 

I had an old MBNA debt,

on which I defaulted,

that was subsequently purchased by Link Financial Ltd.

 

Initially I made some token repayments via a Debt Management Plan.

 

However, as I recall, these ceased back in 2009 after Link failed to comply with a CCA request.

In any case, I had heard nothing until the untilend of November when Link told me of their intention to pass the account to Kearns Solicitors Ltd.

 

In mid December Kearns sent me a LBA, to which I responded with a request for further information accordance with the conduct & protocols set out in the Civil Procedure Rules.

 

I only sent that letter at the beginning of last week and have not, as yet, received any of the information requested,

but have now received a claim form, the particulars of which are as follows:

 

 

1The Claimant claims the whole of the outstanding balance due and payable under an agreement referenced XXXXXXXXXXXXXXXX and opened effective from XX/XX/XXXX.

The agreement is regulated by the Consumer Credit Act 1974, was signed by the Defendant and from which credit was extended to the Defendant.

 

2.The Defendant failed to make payment as required and by XX/XX/XXXX a default was recorded.

As of XX/XX/XXXX the Defendant owed MBNA Limited the sum of XXXX.XX.

By an agreement in writing the benefit of the debt has been legally assigned to the Claimant effective XX/XX/XXXX and made regular upon the Claimant serving a Notice of Assignment upon the Defendent shortly thereafter.

 

3.And the Claimant claims:

1. XXXX.XX

2. Interest pursuant to Section 69 County Court Act [1984] at a rate of 8% per Annum from XX/XX/XXXX to XX/XX/XXXX of XXX.XX. And thereafter at a daily rate of XX.XX to date of judgement or sooner payment.

As I understand it,

I should now file an acknowledgement of service, stating my intention to defend.

 

Furthermore, given Kearns have yet to respond to my pre-action request,

I believe I should now send them a CPR 18 request.

 

As I've already said, I'd be really grateful for any thoughts or advice anyone on here is able to offer.

 

Thanks in anticipation

NuggyPeach

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[removed]
Please do not use ANY of the advice on there. It will ensure you end up in much more bother.

 

Also, if 6 years have passed sinc eyour last payment, use the Statute Barred defence. It will kill the claim.

 

Only use it if you are 100% sure its SB though. If it is, you need do nothing else except submit that defence.


Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

If my advice helps you, click the star icon at the bottom of my post and feel free to say thanks

:D

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Thanks for the prompt replies.

 

As I said, I have looked at the [removed] , but my partner swears by CAG and advised me to look here for definitive advice, hence my opening post.

 

I don't think I've made a payment in the last six years but, at the same time, couldn't be 100 per cent sure and am not sure how I could establish this for certain without the co-operation of Link which, I imagine, is unlikely to be forthcoming.

 

 

My pre-action letter did ask for statements of account but, as I said, I've yet to receive a response.

 

This being the case,

I'd be grateful if someone could tell me whether acknowledging the claim, stating my intention to defend it and, in the meantime, sending a CPR 18 request for further info, as outlined in my first post, seems a reasonable course of action.

 

Thanks again

NuggyPeach

Edited by dx100uk
ref to external forum removed - dx

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no CPR 31:14 and a CCA request BUT if its SB'd theres no need to do any of that..

 

can you fill this out please

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2016**

and well give you the correct advise

 

We understand that forum is in fact now owned by a debt management company!!

Edited by Andyorch
edited

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Date of issue – top right hand corner of the claim form – this in order to establish the time line you need to adhere to. January 12, 2017.

 

What is the claim for – the reason they have issued the claim?

 

1.The Claimant claims the whole of the outstanding balance due and payable under an agreement referenced XXXXXXXXXXXXXXXX and opened effective from 11/11/1998. The agreement is regulated by the consumer creditlink3.gif Act 1974, was signed by the Defendant and from which credit was extended to the Defendant.

 

2.The Defendant failed to make payment as required and by 30/06/2008 a default was recorded. As of 18/07/2008 the Defendant owed MBNA Limited the sum of 1,234.69. By an agreement in writing the benefit of the debt has been legally assigned to the Claimant effective 18/07/2008 and made regular upon the Claimant serving a Notice of Assignment upon the Defendant shortly thereafter.

 

And the Claimant claims:

1. 1253.13

2. Interest pursuant to Section 69 county courtlink3.gif Act [1984] at a rate of 8% per Annum from 16/06/2011 to11/01/2017 of 470.03. And thereafter at a daily rate of 0.23 to date of judgement or sooner payment.

What is the value of the claim? £1,828 including court fee and legal representative’s costs.

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Credit card.

 

When did you enter into the original agreement before or after 2007? Before [1998].

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. Assigned to Link Financial Ltd.

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? I was sent a letter by MBNA stating the account had been sold, while Link Financial claim to have sent me a further letter which, according to them, was ‘a legal requirement under Section 136 of the Law of Property Act 1925.’

 

Did you receive a Default Notice from the original creditor? While I can’t categorically recall doing so, I can’t recall not receiving one.

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year? I’ve been receiving annual statements of account, but have no recollection of receiving any notices of default sums.

 

Why did you cease payments? I know categorically that I haven’t made any payments since November 2013 and suspect that I didn’t make any payments for some considerable time before this and, this being the case, that the debt may be statute barred.

 

What was the date of your last payment? See above.

 

Was there a dispute with the original creditor that remains unresolved? No.

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? Yes. However, as I recall, this debt management proved unacceptable to Link Financial and that this is why payments ceased.

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It might pay you to go ring MBNA and ask last payment date


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, a few questions:

 

[1] You suggest ringing MBNA and asking when I last made a payment. Will try this, but is there any reason why I couldn't / shouldn't use the CPR 18 protocol to ask the same question?

 

[2] Can anyone tell me why I am being charged interest from 16/06/2011? What is the significance of this apparently random date?

 

[3] Clearly, the figures don't add up - 1253.13 + 470.03 gives a total of 1,723.16 and not, as indicated in the amount claimed box 1,643.16.

What should I do about this?

 

Thanks again

NuggyPeach

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1. because the court claim is nothing to do with MBNA

cpr 18 is not necessary and will not gander a response from the claimant before your defence filing deadline.

prove SB it'll kill the claim DEAD.

 

2.no idea but as usual link haven't a clue what they are doing. and section 69 int is only payable at the digression of the judge its NOT automatic

 

3..as above

 

who was the DMP with?

 

dx


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Sorry, let me clarify:

I believe I might have made one or two token payments to Link, albeit some considerable time ago.

This being the case,

is there any point in my ringing Link to try and ascertain the date of my last payment

[given it might not be in their interests to provide this information]?

 

As regards a CPR 18 request, my reading of the following sticky, CPR part 18 vs CPR 31.14 Confused? Well read here... , was that CPR 18 allowed defendants to request information that may be critical to their case and that I could request an extension to the deadline for filing my defence to allow for any such request to be answered.

 

I appreciate if I can prove the debt is statute barred it will kill the claim dead and while I think there is a very good chance this is the case, I cannot, as yet, be certain.

 

 

With this in mind, it is my intention to make a CPR 31.14 request for copies of all the documents mentioned in the Particulars of Claim as, it is my understanding, if Kearns / Link Financial are unable to provide these, as is entirely conceivable, I can apply for the claim to be stayed and, ultimately, struck out.

 

As ever, any thoughts anyone might have would be most welcome.

 

Thanks

NuggyPeach

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In view of the uncertainty surrounding sb

 

You need to send a new cca request under s78 to the claimant ASAP


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Was hoping to get a CCA request in the post tomorrow. Appreciate that might help as regards the enforceability, or otherwise, of the agreement but am unclear as to how it might help with the Statute Barred issue.

 

As an aside, I presume the CCA request should go to Link Financial Ltd, as the claimant, rather than their solicitors [Kearns] or the original lender [MBNA] but would appreciate confirmation.

 

Thanks

NuggyPeach

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CCA the claimant.

 

CPR is a REQUEST they don't HAVE to comply

and knowing link they will NOT esp if no payments

they wont even help you..

 

so YOU made the payment direct to link not through the DMP or anyone else?


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Was making token payments via a DMP [PayPlan] but, as I recall, when Link took over the debt they refused to accept these.

 

Might have made one or two payments directly to Link, but, as I mentioned previously,

definitely not since November 2013 and quite possibly some considerable time before this.

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well the bottom line is as TOR pointed too

they'll never get an enforceable CCA for a 1998 MBNA card that's almost given.

pop up on the MCOL website detailed on the claimform.

.

register as an individual

note the long number given

then log in

.

select respond to a claim and select the AOS box.

.

then using the details required from the claimform

.

defend all

leave jurisdiction unticked.

click thru to the end

confirm and exit MCOL.

.

get a CCA Request running to the claimant

get a CPR 31:14 request running to the solicitors

[if this is a Bank Account use the other version in the library]

.

don't sign anything

leave the £1PO blank and uncrossed

.

dx


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Hi guys!

 

I've been stupidly busy over the last few days, but thought it was high time I updated this thread and, once again, sought the benefit of your wisdom.

 

So, with that in mind, this is where I'm at:

 

Request for copy of credit agreement, pursuant to s.78 of the Consumer Credit Act sent to Link Financial, via Royal Mail Signed For on 20.01.17: signed for on 23.01.17;

 

 

reply received today [26.01.17] stating :

 

 

'As you are aware Link Financial Limited purchased your debt from MBNA Limited on 18 July 2008 and as such we do not always hold this documentation.

 

 

We have requested a copy of the agreement and the most recent terms and conditions your account was operated under from MBNA Limited and look forward to sending you this in the near future, however please be advised that this can take up to 30 days to provide.'

 

CPR 31.14 Request sent to Kearns Solicitors, via Royal Mail Signed For on 20.01.17: signed for on 23.01.17; no response as yet.

 

Registered with MCOL, completed acknowledgement of service, ticking box [1] I intend to defend all this claim on 22.01.17.

 

In addition, as suggested by dx100uk, I also called Link who advised me that my last payment was made in June 2011 so, unfortunately, it would seem that this is not statute barred.

 

So, in light of all the above, a few questions with which, as ever, I'd appreciate the thoughts and guidance of my fellow CAGers:

 

[1] By my reckoning I have until 14.02.17 to file a defence – ie sent 12.01.17 equates to date of service of 17.01.17 + 28 days = 14.02.17 – but would appreciate confirmation my maths is correct.

 

[2] Assuming I am correct in thinking I have until 14.02.17 to file my defence and, that this is likely to be based on Link's failure to produce an enforceable CCA, what do I do if, as seems likely, Link don't respond to my CCA request until after 14.02.17? Can I, for instance, request a stay?

 

[3] I adapted a template I found on here for my CPR 31.14 Request. As detailed above, this has been signed for by Kearns, but I'm yet to receive a response. In the meantime, I'd be grateful if somebody could confirm the statutory timeframe is for responding to a CPR 31.14 Request is seven days? In addition, I've requested the following:

 

[removed template please read our rules or the templates top lines- dx]

.

Also, just to clarify, am I right to assume [1] The agreement should, in theory at least, produce the same result as my CCA request?

 

Thanks in anticipation

NuggyPeach

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go read my post its says ring MBNA

we will NEVER advise ringing a DCA let alone Plink!! one of the worst fleecers out there

 

your defence filing date is 4pm on day 33 from the date on the claimform , whereby that day is ONE in the count [13th feb]

 

as for any time limits, the one you don't miss is the one above...for whatever reason.

 

cpr is a request, you can request a bus stops if it does is another matter, they are not compelled to reply at all.

 

as for the CCA , there is a limit of 12+2 working days, however that's pretty immaterial.

but they must produce enforceable CCA for this case to progress.

and if they don't by the time your def is due

....

I will guess you'll be filing the holding/no paperwork defence.


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Go read my post its says ring MBNA

we will NEVER advise ringing a DCA let alone Plink!! one of the worst fleecers out there.

 

I appreciate you advised ringing MBNA, but, given they wouldn't have been able to advise me of any payments I might have made after they'd passed my account onto Link, I couldn't see a great deal of point in this. I now know this isn't statute barred which, it seems to me, has to be helpful.

 

cpr is a request, you can request a bus stops if it does is another matter, they are not compelled to reply at all.

 

The more I read the more confused I become as to the status of a request made under the Civil Procedure Rules. You say it's just that, ie a request, but I've read lots of threads in which people have cited non-compliance with a CCA request as a central tenet of their defence or, alternatively, as the basis for applying for their claim to be struck out.

 

as for the CCA , there is a limit of 12+2 working days, however that's pretty immaterial.

but they must produce enforceable CCA for this case to progress.

and if they don't by the time your def is due

....

I will guess you'll be filing the holding/no paperwork defence.

 

Similarly, the more I read on this subject, the less clear it becomes to me. First and foremost, should I be filing any defence when I’m yet to have sight of the documents on which, in all likelihood, that defence will be based?

Moreover, I've seen lots of people advocating that, in these circumstances, one should make a N244 application for the claim to be struck out, while elsewhere I've seen it suggested that requesting the claim should be stayed is the better option. Indeed, I'm reasonably certain I read a thread in which andyorch advocated the latter approach.

As ever, I'd welcome any thoughts anyone might have.

 

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.

 

I appreciate you advised ringing MBNA, but, given they wouldn't have been able to advise me of any payments I might have made after they'd passed my account onto Link, I couldn't see a great deal of point in this. I now know this isn't statute barred which, it seems to me, has to be helpful.

 

The more I read the more confused I become as to the status of a request made under the Civil Procedure Rules. You say it's just that, ie a request, but I've read lots of threads in which people have cited non-compliance with a CCA request as a central tenet of their defence or, alternatively, as the basis for applying for their claim to be struck out.

 

Similarly, the more I read on this subject, the less clear it becomes to me. First and foremost, should I be filing any defence when I’m yet to have sight of the documents on which, in all likelihood, that defence will be based?

You wont get any documents so you will be filling a defence which puts them to strict proof.

 

Moreover, I've seen lots of people advocating that, in these circumstances, one should make a N244 application for the claim to be struck out, while elsewhere I've seen it suggested that requesting the claim should be stayed is the better option. Indeed, I'm reasonably certain I read a thread in which andyorch advocated the latter approach.Not on this forum I hope..you cant strike a claim out until its been allocated after defence.Claims are stayed automatically if the claimant fails to respond after 28 days of submitting a defence so no need to make application.

As ever, I'd welcome any thoughts anyone might have.

 

Regards

 

Andy


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but I've read lots of threads in which people have cited non-compliance with a CCA request as a central tenet of their defence or, alternatively, as the basis for applying for their claim to be struck out.

 

quite correct..but A CPR is a request made under CPR

 

however A CCA request is under the consumer credit act = compliance is a legal requirement.

 

your are linking the two when they are not linked at all.

 

as for N244=strike out urm..i'd be very careful of those thoughts and the sites that put that forward

 

Similarly, the more I read on this subject, the less clear it becomes to me. First and foremost, should I be filing any defence when I’m yet to have sight of the documents on which, in all likelihood, that defence will be based?

 

all claims are automatically stayed if after filing the holding/no paperwork defence [widely available on most legal threads here] is filed and they fail to do anything within 28 days , you don't request a stay....

 

if you don't file a defence you lose regardless

 

dx


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cross posted with andy...


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Andyorch / dx100uk

 

Firstly, thanks for taking the time to share your thoughts on this thread.

 

Secondly, apologies for complicating things by inadvertently writing CCA when I meant CCJ in post #17, doh! Rest assured, I understand the difference between the two and had intended to write:

 

The more I read the more confused I become as to the status of a request made under the Civil Procedure Rules. You say it's just that, ie a request, but I've read lots of threads in which people have cited non compliance with a CPR request as a central tenet of their defence or, alternatively, as the basis for applying for their claim to be struck out.

andyorch, you say I won't get any documents and, this being the case, should file a defence which puts them to strict proof.

 

However, in the stickie CPR part 18 v CPR 31.14 Confused? well read here,

 

it says it is absurd to suggest one can defend a claim against an agreement they haven't had sight of and advocates seeking 'an extension of time pursuant to CPR 15.5 to allow you time to receive the documents, review them and formulate your defence'.

 

To clarify, are you taking issue with the advice in the aforementioned stickie?

If so, to enable me to get this straight in my head,

 

can you explain why you think I'd be better advised to file a defence which puts them to strict proof than to request a stay until such time as they provide the documents referred to in my CPR 31.14 request?!

 

As ever, thanks in anticipation

NuggyPeach

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1.look at the date of that stickie...6yrs old..things have moved on...

 

2.do you seriously think it a good idea to voluntarily give them more time to magic up paperwork when you don't have too?

 

its a speculative claimform...750'000 were issued last year

hoping for a default rubberstamped undefended judgement where nothing is checked....

 

that's why you defend all and file a defence to put them to strict proof.....

 

you have 11 days left.....


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Andyorch / dx100uk

 

Firstly, thanks for taking the time to share your thoughts on this thread.

 

 

andyorch, you say I won't get any documents and, this being the case, should file a defence which puts them to strict proof. Correct

 

However, in the stickie CPR part 18 v CPR 31.14 Confused? well read here,

 

it says it is absurd to suggest one can defend a claim against an agreement they haven't had sight of and advocates seeking 'an extension of time pursuant to CPR 15.5 to allow you time to receive the documents, review them and formulate your defence'.Not really applicable to 99.9% of the claims we deal with as they from DCAs were the debt has been assigned and they do not have the paperwork to readily disclose

To clarify, are you taking issue with the advice in the aforementioned stickie? Yes in this instance although in General it does apply to claims from the original creditors

If so, to enable me to get this straight in my head,

 

can you explain why you think I'd be better advised to file a defence which puts them to strict proof than to request a stay until such time as they provide the documents referred to in my CPR 31.14 request?!

 

To request a Stay you must submit an application with fee £100...why bother when the claim will be stayed anyway once you submit your defence and they cant respond ?

 

As ever, thanks in anticipation

NuggyPeach

 

Regards

 

Andy


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dx100uk

 

I saw the date on the stickie, and was mindful that things might have moved on, which was why I posed the questions I did.

 

For the record, I don't doubt you and andyorch know your stuff and very much appreciate your advice. At the same time, I'm very keen to have this all absolutely clear in my head, which is why if I stumble across some guidance elsewhere which appears to differ from yours I'm more than likely to seek some clarity.

 

With regard to your second question above, I was thinking not in terms of voluntarily giving them more time to magic up paperwork when I didn't have to, but of stalling the path to a court date.

 

 

Clearly, you and andyorch believe filing a defence putting them to strict proof is a more effective way forward and I take that on board but, at the same time, I need to ask questions to understand why that might be.

 

In any case, I'll start work on my defence this weekend and, with a little luck, have something to share with you guys by the beginning of next week.

 

This is really helpful. Thank you.

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I've just received a response to my CPR 31.14 request from Kearns Solicitors.

 

To be clear, I shan't allow it to distract me from filing a defence putting them to strict proof.

 

 

Be that as it may, I would be interested to hear what my fellow CAGers make of this letter.

 

While it seems barely comprehensible to me,

I think I have a good idea what it's intention is.

 

 

However, rather than cloud others' judgements, I'll wait and see what might be posted before I share my thoughts.

 

Look forward to hearing others' thoughts

NuggyPeach

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