OH's IDEM claimform - MBNA credit card debt

[blondiegirl]

I've checked the MCOL website and there's no payment showing by Idem. I assume they've paid as per their letter, and the website is just slow to get updated.

 

Anyway, drafting up a WS now.

[AndyOrch]

MCOL does not show payment of hearing fees..you have to ring and ask.

[blondiegirl]

Idem has sent its witness statement. I haven't scanned all the appendices though (nothing new on them).

 

Comments and/or advice welcome please. Thanks   

IWS.pdf

[dx100uk]

take it apart point by point like these points::

my quick notes..

 

2. the litigation officer is relying on hearsay evidence.

 

4. idem have NOT provided a true copy of the signed agreement from 2002, the t&c's are of a differing date (was it read back on my notes)

 

5. were not the statements on idem headed paperwork? not MBNA?

 

etc etc

 

25.no you haven't

 

28 idem, a debt buyer are not a creditor and cannot issue a default notice under the CCA. Any Agreement made under the CCA with MBNA was terminated by MBNA upon sale, i have not signed any agreement under the consumer credit act with the claimant to enable them to issue said documents under said act.

 

 

 

 

[blondiegirl]

Thanks DX. Am starting to write it now.

[blondiegirl]

I should have this finished by tomorrow and will send across. I think their WS is very padded out with pages of old statements (which isn't proof of any agreement), and they can say that a credit agreement has been provided as many times as they like - they certainly haven't provided it! Not to mention the default notice issue.

 

All works in my favour.

[blondiegirl]

So we're weighing up all options.

 

I know I have a good case. Their arguments, and a lot of the documentation, are pretty weak in parts (especially the lack of a properly executed credit agreement). But, if I go down the Tomlin route, what do I need from them, or them from me, to get this set up? I would like all the facts as I wouldn't trust anything they say 

 

Thanks again,  

[blondiegirl]

So a bit of an update, I contacted Idem to discuss a proposed figure and they've accepted my Tomlin offer over the phone.

 

However, they said that in order to agree this, I have to make a payment (ie, the first instalment) and also set up a direct debit going forward. Is this normal? They know I have to still submit a WS. I haven't made any payment as I'm still weighing it up. 

 

The lady I spoke to said that she'd get this in writing (didn't say what exactly, but I assume 'legal' paperwork??)

[AndyOrch]

No payments or direct debits until the Tomlin has been agreed ...signed and sealed by the court and the claim has been stayed.

[blondiegirl]

OK. Need some advice here please:

 

Going by their paperwork, point 16 of their WS refers to the agreement being terminated on 22nd November. However their DF Notice dated 7th November gave until 24th November. They also issued a letter, dated 22nd November, to the effect that the account was terminated.

 

So they have effectively terminated the agreement without allowing the time they've given for remedy to expire.

[dx100uk]

They cant do either they are not the original creditor.

the agreement was terminated when the oc sold it

[shamrocker]

So, the Claimant can either go with:

 

1. No DN was ever issued.

2. They issued a DN, but terminated the agreement prior to the date they gave the defendant to remedy any alleged arrears.

 

Either way, it's not looking very good for them.

[blondiegirl]

I'll certainly be putting that in. Makes their case much weaker. @Andyorch do you have any thoughts please?

[AndyOrch]

11 hours ago, blondiegirl said:

OK. Need some advice here please:

 

Going by their paperwork, point 16 of their WS refers to the agreement being terminated on 22nd November. However their DF Notice dated 7th November gave until 24th November. They also issued a letter, dated 22nd November, to the effect that the account was terminated.

 

So they have effectively terminated the agreement without allowing the time they've given for remedy to expire.

 

Quote

33. The Default Notice was issued by Idem on 7 November 2018 following a period of nonpayment
and the debt thereafter terminated on 22 November 2018.

 

7 - 22 =  14 + 2 service days  ......I dont think your argument carries any weight unfortunately

 

Andy 

[blondiegirl]

OK. Shame. Thanks.

[shamrocker]

40 minutes ago, Andyorch said:

 

 

7 - 22 =  14 + 2 service days  ......I dont think your argument carries any weight unfortunately

 

Andy 

 

Andy, just for clarity - if the Claimant's DN provides an explicit remedy deadline date of 24th of November, how can they terminate the agreement on the 22nd November? Does the 24th November not have to pass before they can terminate the agreement, as stated on the DN?

 

See below...

 

88Contents and effect of default notice.

(1)The default notice must be in the prescribed form and specify—

(a)the nature of the alleged breach;

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

(c)if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2)A date specified under subsection (1) must not be less than [F114] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F114] days have elapsed.

[AndyOrch]

No Sham...the legislation states 14 days plus service to rectify the breach....not by named date.

[shamrocker]

I will bow to anything you advise on this subject Andy, but my interpretation, assuming the s.88 snippet I quoted is current, is that the DN must specify a date. The only hard and fast rule is that the date must not be less than 14 days after date of service - therefore 7th + 16 = 23rd November. Considering the fact they've given the OP until 24th November, their DN is valid in that respect.

 

However, I'm struggling to understand why it is ok for the creditor to take an action (i.e. terminating the agreement) that s.88 says it can't do prior to the date specified on the Default Notice.

 

Terminating the account on 22nd still wouldn't allow the statutory remedy period anyway - right?

 

All said, even if I am correct, would it likely matter to a judge? I know you've previously made the point that the agreement was terminated by MBNA, but it appears to me that the Claimant argues that the DN was not issued by MBNA, yet shoots themselves in the foot by messing up on their dates with their own DN.

 

Hope that makes some sort of sense.

Edited March 6, 2020 by shamrocker

[AndyOrch]

Yes you are quote correct there should be a named date.....but most cases here we see that judges will just look at number of days...with regards to the termination have a look at sec 98 (6) ....

 

(6)Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the agreement.

 

http://www.legislation.gov.uk/ukpga/1974/39/part/VII/crossheading/termination-of-agreements

 

Then yes I suppose they have terminated early...but would a judge stand by that ? Some are not even interested even if a default notice was never issued or ever issued at all.

 

Andy

[shamrocker]

Thanks Andy. Yep, that makes sense.

[blondiegirl]

Whilst considering all options, a draft Tomlin order has been sent.

 

All points except 1 in their draft order seem fine, detailing the exact amount and for so long, as to how the settlement will be paid. 

 

But point 3 seems a bit odd:

 

"3. After the expiry of the initial 12 months period, ie March 2021, the Claimant shall issue and I&E form to the Defendant and the Defendant agrees to fully and accurately complete the said form and return it to the Claimant. The Claimant and the Defendant will review and, if required, will agree a revised monthly instalment in line with the Defendant's affordability".   

 

If an I&E were to be completed and the affordable figure were to change, this would negate the whole agreement surely? It's agreed at £x over x months. Surely this can't changed and so point 3 should be removed??

[AndyOrch]

Standard term in any Tomlin Order......payment reviews can also reduce the payment if required....subject to your financial position.." Defendant's affordability"