IDR/Link/Kearns - claimform - MBNA Credit Card

[Off My Head]

Guys,

 

 

I have no knowledge of receiving a default notice from MBNA. I remember many a telephone call with them when I raised the issue of my redundancy with them. Their immediate action before any talk of default was to stop the account. I honestly can not remember receiving a written default notice, I received regular year statements from link which I ignored and never acknowledged.

[AndyOrch]

And the Data Subject Access Request..you referred to previously ?

[Off My Head]

Never received a reply from Link or MNBA

[Off My Head]

Link did however did cash the postal order and applied the £1.00 fee to my account even though I had expressly asked them not to in my covering letter.

[AndyOrch]

Okay..many thanks...so if they plead in their particulars " 2.The Defendant failed to make payment as required and by 30/11/2011 a default was recorded. "

 

So recorded to your CRA files ..therefore we have to assume it could have been issued any time after the breach ( 30 March 2011 last payment breach would be 30th April ) before 30th Nov 11 ...7 months after

 

But even so going off 30th Nov 2011 claim issued 07 June 2017..that would make a possible argument that its not statute barred until this Nov 17.

 

Therefore they would have to prove the date the Default Notice was served....which would after to be around and no earlier than Sept 2011.

[Off My Head]

Andy/DX,

 

 

Question: is it SB technically or not (technically) either way is this not a better defence than just demanding they prove the debt? if I write to Kearns telling them it's SB might they drop the claim anyway? Surely with this pond life they are looking for me to roll over not put up a fight? Last time I got involved with this over MKLDP the judge ruled on argument on the day and settled for probability that I owed MKLDP/BC. My submitted defence barley came into it. One way or the other chaps, assume I know nothing and you guys know your way around the system, SB or not to SB that is the question?

 

 

As always your help and advise is gratefully received,

 

 

OMH

[AndyOrch]

Well from our take ...District Judges are happy to go along with the cause of action argument that counsel usually put forward..this ones tight...very tight and unless they can prove that the default Notice was dated pre Nov2011 then that would fail.

 

Its interesting to note that they state " and by 30/11/2011 a default was recorded " so for it to be recorded that implies it passed the 14 day prescribed period for you to rectify any breach.Therefore the Default Notice could have been issued post June 2011 or anytime up until Oct 2011

 

Therefore thats why I signalled it was a gamble.....particularly as its so tight...and in view of the amount and track involved (Fast Track) I would think it wise to submit the normal holding/proof defence and also incorporate the the question of whether it is possibly statute barred as a second level of defence.

[mercyblue]

It is going to be quite easy to argue that the original lenders system would be automated that following a missed payment there would be a 1st, 2nd and final reminder before a DN was issued (they probably should be able to provide sample template letters of such.) That (as Andy says) gives a DN time line of June/July 2011.

 

I would suspect that these parasitical firms use software that flags up the account shortly before (according to them) it goes statute barred - allowing them to claim years of juicy section 69 interest.

 

Personally I don't think there is much chance of using an SB defence successfully if the claim is issued within 5 months of the deadline of the last payment i.e 6 years + 5 months from the last payment.

 

As Andy has already noted their claim doesn't state a DN was issued just that a default was recorded (which I assume to mean with a CRA?) which is a completely different thing.

 

Now you stated you initially rang MBNA and they stopped the account.

That means there was manual intervention which would circumvent the automated process described above.

 

This would be the angle I would take the claimant doesn't even assert there ever was a DN issued.

[Off My Head]

Gentleman,

 

 

Thank you for al the advice. In essence continue defence based on putting them to strict proof and non compliance along with a hint of possible SB? Do you think it might be worth issuing a standard CAG Template SB letter to the solicitor with the slim chance it will put them off? It does seem that documentation on their part could be sketchy to say the least. Dates/timeline are also a little suspect.

 

 

Your thoughts as always welcomed

 

 

OMH

[AndyOrch]

I think thats the best and more flexible option OMH......as we know MBNA paper trail was hideous in the past and IDR will struggle to disclose ...and they will definitely have to disclose or evidence this Default Notice to save their claim.

 

Let me draft a suitable response in the morning as there are no example or previous posts that have used this approach.

 

Regards

 

Andy

[Off My Head]

Hi Andy,

 

I pleased that I have been able with my case to offer a different approach and I certainly cannot thank you guys enough for all your help over the years.

 

 

If this does get to court I will be better able to fight the Ninja Assassin of a local solicitor they have attend.

 

 

First time round I never expected him to be so vicious or the DJ to be so uninterested in my attempt at applying reason and logic. The sod thanked me for being honest..... lessons learnt!

 

I look forward to receiving whatever you manage to draft Andy and thank you all for your help and guidance on this wonderful site.

 

OMH

[AndyOrch]

Particulars of Claim for reference only

 

1.The claimant claims the whole of the outstanding Balance due and payable under an agreement referenced 412XXXXXXXX and opened effective from 12/12/2007.

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 30/11/2011 a default was recorded. As at 29/02/2012 the Defendant owed MBNA Limited the sum of £14,094.67

 

3. By an agreement in writing the benefit of debt has been legally assigned to the Claimant effective 29/02/2012 and made regular upon the Claimant serving Notice of Assignment up the Defendant shortly thereafter.

 

4. And the Claimant claims -

 

1.£14,194.67

2 .Interest pursuant to Section 69 county court Act (1984) at a rate of 8% per Annum from 29/02/2012 to 06/06/2017 of £5720.54 and thereafter at a daily rat of £2.98 to date of judgment or sooner payment. Date 06/06/2017R]

 

 

####DEFENCE#####

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2.. Paragraph 1 is noted and it is accepted insofar that I have once held a contractual relationship with MBNA. I do not recollect the precise details of the agreement and have therefore sought clarity from the claimant given that that they are the assignee of this alleged debt and have very little knowledge of the agreement or what they are claiming and do not appear to be able to disclose any further details by way of CPR 31.14 and section 78 request pursuant to the CCA1974.

 

3. Paragraph 2 is accepted I recall the agreement did breakdown. MBNA refused point blank to consider my financial circumstances or offer any assistance and immediately assigned the debt to a third party.It is denied that MBNA ever served a warning of default or a Default Notice to allow any breach to be rectified pursuant to section 87.1 a/b/e the Consumer Credit Act 1974 and is therefore prevented from terminating the agreement, or to enforce any security.

 

4.Paragraph 4 is noted although I do not recall ever receiving a valid Notice of Assignment pursuant to the Law of Property Act 1925.

 

5.Paragraph 4.1 is denied.Given that the claimant alleges the debt was assigned from 29/02/2012 it has allowed 5 years for interest to accrue.This is unfair and should be dismissed by the court given that the claimant has failed to serve any Notice of Sums in Arrears during this 5 years. Should it deem it fit to allow any I understand it should be capped to 12 months.

 

6. On receipt of this claim the Defendant requested information pertaining to this claim from Kearns Solicitors by way of a CPR 31.14. This request was signed for by the Solicitors on 14th June 2017 Kearns acknowledged receipt but have yet to supply the requested documentation supporting this claim.

 

7. The Defendant requested information pertaining to this from IDR Finance UK Ltd by way of a Section 78 request. This request was signed for by the Claimant on 14th June 2017. To date I have yet to receive a response complying with the request and therefore remains in default and prevented from seeking any relief until its compliance.

 

Notwithstanding the above it is averred that any alleged debt would have become statute barred given that the last payment recalled was 30th March 2011 and the claim issued 7th June 2017 which equates to 6 years and 2 months.Should the claimant rely on the cause of action this would be April 2011.Which is the date of breach and the cause of action, not from when any alleged default notice was issued or recorded.

 

Therefore 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.

 

With the court’s permission the Claimant is put to strict proof to:

 

(1) Show and disclose how the Defendant has entered into an agreement; and

(2) Show and disclose how the Claimant has reached the amount claimed for;

(3) Show and evidence the nature of breach and service of a valid Default Notice;

(3) Show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

8. As per Civil Procedure Rule 16.5, it is expected that the Claimant prove the allegation that the money is owed.

 

9. 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.

 

10. 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.to the relief claimed or any relief.

[Off My Head]

Hi Andy,

 

I cannot thank you enough, What a defence!!

 

 

I would not have known where to start with that, you sir are a genius!!

 

 

my MCOL logging is not working for some reason,

even after resetting password,

I have spoken with the court who have suggested emailing today before 4pm

they can confirm receipt tomorrow.

 

 

The defence claim is due on Monday according to the court and emailed defence claims can be received on the day up to 4pm.

 

 

I believe I will copy into a word document and submit an attached PDF today if you are in agreement.

 

What ever the outcome (long way to go yet) I will always be grateful for your help and support.

 

OMH

[dx100uk]

you have the email address ok?

[Off My Head]

Hi DX,

 

 

Yes thank you: [email protected]

 

 

Unless this is wrong should be good for submitting defence.

 

 

OMH

[dx100uk]

well ive got

 

 

 

 

MCOL is only one way of responding to a claim.

.

If you are having problems logging in, or would prefer not to use MCOL,

you can fax, email or post your response to the Court instead.

If you send your response by e mail

please send it to [email protected] and ensure you quote “Claim response” and quote the claim number in the subject field.

.

[becareful there are no spaces in the email ad]

[AndyOrch]

The above is the correct one OMH

[Off My Head]

Morning guys,

 

 

I have spoken to the Court this morning who have confirmed they have received my defence which has been logged and sent to Kearns. Hopefully they drop it, if not await allocation to local Courts.

 

 

I will keep you all posted on any update, but for now it's a waiting game.

 

 

Thanks for your continued advice and support.

 

 

OMH

[AndyOrch]

[Off My Head]

Hi Team,

 

Update: I received a package of reconstituted stuff and internet application along with a letter asking me to withdraw my defence on the 14th July, I chose to ignore it and await the hearing date. I have today (2 months later) received the attached letter.

 

I would welcome your thoughts and advice on how best to proceed?

Ignore and see what happens or write and politely tell them to do one,

as I will fight on grounds of SB, unfair interest charges and in dispute when sold?

 

I should point out that their Client (Link) have not made any attempts to contact me since purchasing this debt regardless of what they are stating in their attached letter.

 

Regards

 

 

OMH

Kearns.pdf

[AndyOrch]

No action required

[dx100uk]

ignore yep

had to hide that

you've left the ref number showing

[Off My Head]

Thanks Chaps,

 

 

Very much appreciated.

 

 

OMH

[Off My Head]

Hi all,

 

I have a slight problem that I could use some urgent help with.

 

I have received today in the post a letter from the courts stating that I had failed to complete a Notice of Proposed Allocations to Track questionnaire.

 

Apparently I have 7 days from today to comply with the CCBC.

 

Firstly I never received such a document from the court,

I did however receive a copy of the claimants instructions, which I didn’t fully understand and believed i was just now waiting for a hearing date,

 

didn’t appreciate I was expected to complete an identical form.

I have downloaded a copy of a directions questionnaire today from the justice.gov site.

 

I could use a little help completing it if that’s possible?

 

I should also point out on the first of February I received a letter from Kearns offering me a settlement payment of £150 per month with 10% discount on the overall claim if I was prepared to sign a Tomlin Agreement,

 

I chose to ignore that letter on the basis that I have very little to loose if it went to court and I lost, I would probably offer that amount monthly to settle anyway, just with added costs.

 

I must be honest I’ve not heard from them since September and I had almost believed they had given up as in another 3 weeks it will have been 7 years since my last payment to MBNA. They are still refusing to accept my defence of Statute Barred.

 

I guess we’ll know over the next few weeks.

I don’t suppose any of you talented people believe I should have taken the Tomlin Agreement by any chance?

 

As always, many thanks for you much appreciated assistance.

 

Off My Head

[dx100uk]

Yes to mediation

1 wit you

The rest is obv

 

Copy to court

Copy to kearns