OH's IDEM claimform - MBNA credit card debt

[shamrocker]

7 hours ago, blondiegirl said:

Should he just ignore this and use it as 'evidence' where he was trying to be helpful and accommodating etc but that the Mediation Service say that Idem say it's not suitable for mediation??

 

This is nothing to worry about, so don't get hung up on it. If they have a rock solid case, you'd be better off trying to avoid court anyway - and if it's a bit  shaky, then mediation was never going to work.

[shamrocker]

You should view this as a bit of a game of poker, and choose to play it according to the hand you hold, how the possible outcomes will affect you,

and how the opposition appear to be playing their hand.

 

If you're clutching at straws a bit and also don't have the experience to use what you've got to best effect, then you should certainly be considering all options open to you. The fact the agreement is post 2007 gives them some wriggle room, so you can't depend on it really.A Tomlin in this instance might be a safe bet for you, but please remember that you do not have to settle for amount they're claiming.

 

Taking this to a hearing will cost them a few quid, and they will be aware there's no guarantee they'll win either.They might even be aware of certain weaknesses that you've not identified and could be nervous.The fact they've offered a Tomlin at all shows they would rather take something than risk getting nothing, or that it would present a commercially viable option for them.

 

If you could afford £25 per month, tell them that you believe you have a good chance of being successful at the hearing, but offer them £1,500 over 60 months under the Tomlin Order.Request that the Claimant pay the £100 fee. You can still pay the settlement amount in one hit if you can afford it, then the matter goes away.

 

They may not accept it though, so you have to return with an increased offer or tell them you'll proceed to the hearing and see how they respond.

[shamrocker]

You can offer them any figure you like, but they don't have to accept it. The figure needs to be sensible and should represent value to the Claimant. My own approach is that by offering a lower amount than what's being claimed, the Claimant gets to save on the costs they'd have incurred by going all the way to trial - therefore, the sooner the offer is made, the better really. You can then add in a bit for the fact you may contest things such as penalty fees that the judge may be inclined to knock off. Then you can reduce it a bit based on the fact they will be nervous about losing, so may be more open to negotiation.

 

It's not an exact science, but you need to appear realistic and sensible. Fully understand why you're making the offer and why the offered amount may be appealing to the claimant. Too low and you risk antagonising them - too high and you're giving away money. View it as a commercially based negotiation. If they think their claim is rock solid, they'll be unlikely to budge - but why would they offer a Tomlin if they were completely confident? They will also be aware that even if they win the case, you may never pay up and may duck and dive forever more - it's time and money wasted by them. Just keep it in mind.

 

My suggestion of £1,500 was definitely on the cheeky side, so even that could be taken the wrong way by them. If you want to ensure you're taken seriously, then perhaps knock a third off, or £500 maybe. As Andy says, a one-off payment will give you more leverage, but whatever you offer, if you need to do it by way of a payment plan, make sure it's completely affordable or you may regret it later.

Edited February 17, 2020 by shamrocker

[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.

[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.

[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

[shamrocker]

Thanks Andy. Yep, that makes sense.