Backdoor Arrow/Drydens 2008 CCJ/CO - MBNA Card - , debt was already SB'd , **WON** set aside - Now being chased 12yrs later.!!

[reggie76]

Mandy, if you could either post up or PM me your defence to set aside it would be appreciated in case I can use some of the details for my defence.

 

Thanks in advance.

[mandyjayne]

Claim No: XXXXX

 

 

　

In the XXX town XXX Court

 

　

 

Between

 

 

 

XXXX correct name of lender XXXX

 

 

(Claimant)

 

 

And

 

 

　

XXXX your name XXXX

 

 

(Defendant)

 

 

　

Statement

I respectfully request the court to consider the following when hearing this application:

 I believe that the account subject to the above claim is statute barred under Section 5 of the Limitation Act 1980.

 Despite a written request to the claimant for proof of the alleged debt they have failed to supply any information upon which a proper defence can be founded. Please see Appendix 1, affixed.

 There has been no communication from the claimant in the last 6 years and no claim papers have been received (please refer to the claimant's particulars of claim which state papers not served), despite having resided at my present address since XXXdateXXX.

 I respectfully bring to the court's attention that the OFT say under their Debt Collection Guidance on statute barred debt that it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period.

 

The OFT Debt Collection Guidance states further that continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970.

Therefore I respectfully request that the county court judgment obtained by the claimant in default is set aside.

 

Sorry this is the only way i know how to post stuff..derrrrrrr

Sure Reggie this is what they mean i think :0)

[mandyjayne]

hello again...

 

well i have located the application form scans (they are not that good but hope someone can advise)...sorry dont know how to add them here...they are in this thread on page 5 and post no:91 the application form is seperate from the ts and cs..defence is post above

 

thanks MJ

[steven4064]

. i dont know how to provide links to things...sorry

When you have the item you want to link on the screen, right click on the address line of your browser and click 'copy'.

 

Alternatively, if it is a post on CAG you want to link, right click on 'permalink' in the top right corner and click 'copy link location' (or whatever the internet explorer term is)

 

Then in the reply to thread box on CAG right click and click 'paste' - job done

 

 

Here is a link back to the post with the application form http://www.consumeractiongroup.co.uk/forum/show-post/post-1915794.html

Edited May 23, 2009 by steven4064

[mandyjayne]

http://www.consumeractiongroup.co.uk/forum/legal-issues/167654-help-ccj-charge-home-5.html#post1915794 scanned application form - post 91

 

Thanks Steven

 

Does not look right..but will try this!

 

oh its worked...wow i am cleaver..now just need help with what to do from here.. anyone please??

 

Mj

Edited May 23, 2009 by mandyjayne

[mandyjayne]

bump

[steven4064]

HAve a look at this thread http://consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/609-mbna-agreementsapplication-forms

 

The T&Cs you have been sent are exactly teh same as many of the ones on that thread. However, they arealways on the back of an application for which is titled "credit card agreement regulated by the consumer credit act 1974". Yours is not. I would argue strongly (using the above thread as evidence) that the T&Cs you have been sent and the application form do not belong together.

 

the application form you have, is not titled "crdit card agreement..." and it doesn't have the prescribed terms. It is therefore a pre-contractual document, unenforceable under s59 of the CCA 1974 and unenforceable under ss61, 65 and 127(3)

[mandyjayne]

Thanks for reply Steven...That all is pretty clear, and quite good news then??

 

What about no Default Notice or Notice of Assignment?? Can you comment on that also please.

 

MJ:)

[steven4064]

No DN means no case (s87 CCA 1974) - you could apply to have the case struck out jsut in this alone

 

No NoA means they have no case, original debtor may

[mandyjayne]

Thanks again Steven,

 

So by what you have said...i have an unenforcable agreement, no default notice and no NOA...In your opinion do i have a good case to defend and possibly win this?

 

That said...my defence has to be in by 4pm on the 5th June, can you or someone assist me with wording it and advise weather it goes on a court form..

 

Thank you so much..i am feeling slightly better but still very much on edge:)MJ

Edited May 23, 2009 by mandyjayne

[steven4064]

It sounds like you have a good case. I think you should major on no DN then on unenforceable CCA (the NoA only applies if the creditor is not the original creditor - I con't remember if this is so in your case)

[mandyjayne]

No it is not the original creditor...they were MBNA, the DCA is Arrow Global based in the USA, mortimer clarke solicitors working for them here

[steven4064]

In that case, you should have been sent a NoA too.

[mandyjayne]

Ok thanks steven..

 

Who can i get to help me with my defence from here then please..can you suggest anyone?? I wont be able to do it alone:confused:

 

many thanks for your time today

 

mj:)

[steven4064]

My problem is that I am away until Thursday night.

 

Click the red triangle (or PM the shadow as he and I did a similar defence last week)

[reggie76]

"The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future."

I copied this from another post, may help you but obviously personalise it!

[mandyjayne]

thanks reggie

 

just logged on so will have a read

 

mj;)

[the_shadow]

Hi mandyjane,

 

Got the PM, you have a while to file the defence so no problem there.

 

If nobody posts anything up I'll take a stab at it tomorrow/tuesday but I'm a novicelike myself so it will need checking with an experienced litigator..

 

Just a couple of things that could help someone doing the defense.

 

Can you confirm whether it is actually stat barred? Do they have records of you making payments.

 

You say no default notice received, is that the same with a termination notice?

 

S.

[mandyjayne]

Hi Shadow and thanks for the reply..

 

It looks as though a payment was made in dec 05, the statements they have sent are looking a bit fishy!

 

The first statement dates back to july 2004 it looks as thou this is the first statement..as the balance is £0 plus the spending that month..now i got this card in 2000 and i know i used it before 2004!

I have 23 statements in total half are the regular monthly ones we all get...the rest are a type of print out with a different account number to the original half. There are loads of charges and interest on them as well.

 

Anyway, in answer to the last question...NO default notice, No Notice of Assignment and No Termination Notice.

 

Thanks MJ:)

Edited May 24, 2009 by mandyjayne
spelling

[the_shadow]

Hi Shadow and thanks for the reply..

 

It looks as though a payment was made in dec 05, the statments they have sent are looking a bit fishy!

 

The first statment dates back to july 2004 it looks as thou this is the first statment..as the balance is £0 plus the spending that month..now i got this card in 2000 and i know i used before 2004!

I have 23 statements in total half are the regular monthly ones we all get...the rest are a type of print out with a different account number to the original half. There are loads of charges and interest on them as well.

 

Anyway, in answer to the last question...NO default notice, No Notice of Assignment and No Termination Notice.

 

Thanks MJ:)

 

Ok, if the no default notice and strict proof should be enough to cast enough doubt but to make doubly sure, the payment they say occured in 2005, can you go back through bank statements for the same period to triple check no payment was made.

 

S.

[a_bx]

Am I right her in reading the O.P. had a charging order placed on their house? If so somebody somewhere must have known this address, and thus why couldnt the court papers be served?

[the_shadow]

Am I right her in reading the O.P. had a charging order placed on their house? If so somebody somewhere must have known this address, and thus why couldnt the court papers be served?

 

Oh I'm sure they KNEW the address but they could claim that they did a land search after the judgement, found the op owned a property and charged it, they werent to know if it was there main residence were they?

 

Common tactic employed by solicitors and cc firms to serve documents to old addresses alas.

 

S.

[mandyjayne]

Hi shadow

 

I dont have that bank account any longer..it also took a nose dive with an over draft, around the same time as this credit card...on saying that i will have a search in old paperwork tomorrow to see if i find anything.

 

I dont know if i have a leg to stand on with this..thought the worst was over:(..my main concern is not having a charging order on the house again..hope someone helps me out soon with a good defence:) MJ

[mandyjayne]

bump

[the_shadow]

Hi MandyJane,

 

stay calm, plenty of time

 

S.