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

[I've got no money]

This is the post i put on re: 6th March defence from claimant:

 

 

court hearing today at 2..received yesterday, claiments witness statement and costs.

 

most of it is pretty straightforward, but can someone comment on their point number 8 and 13?

 

No: 8 "The defendant states that the account is statute barred under section 5 of the limitation act 1980. Section 5 of the limitation act states etc...

the cause of action which resulted in the full balance being payable immediately occurred on the 30th may 2006 by way of termination of the account, therefore the account is NOT statute barred" (they have not included any proof of last payment or mbna statements from 2000)

 

No: 13 "The defendant at all times was fully aware of the debt she owed and the nature of the claim against her. The claimant avers that the defence is both inappropriate and ineffective as it is intended to deliberately frustrate and delay legal proceedings by use of incorrect and misconstrued technicalities in law. It is contended that the defendant has sought to abuse the court process and mislead the court. For the reasons set out above i invite this honourable court to grant the claiment judgment in the amount claimed. Further or in the alternative i invite the court to strike out the application on the grounds that the defendant did not comply with the ts and cs of the credit agreement and enter judgment in favour of the claiment."

 

They have attached copies of only 4 letters they claim to have sent me since feb 2007...none of the letters are on headed paper they have clearly typed these last week!

 

One saying the debt has now been passed to them...contact us and pay now. MJ - that is the Notice of Assignment - we need to read what it says

A week later a reminder to the first one.

2 months later a final demand.

2 months later considering CCj/charging order.

Fees of £345.00

 

 

So as i still stand by....No default notice, no notice of assignment, no termination notice, 23 statements half with a different account number, enenforcable agreement and recent t's and c's.

 

What now?? MJ

 

You need to post the stuff that you have been given by the other side

 

In the statements that they have given you are there any account charges - late payments fees, overlimit fees, charges for letters etc

[mandyjayne]

I have to go to work now and not back till this evening:mad: thanks 42man for that!

 

With ref to your post IGNM..(343) about them possibly getting it reinstated, is there anything i could do to prevent that at this stage? Not sure if this is the correct term but, do i need to get judgment in my favour or something along those lines?

 

Thank you so much for all help received this morning

 

MJ

[I've got no money]

I have to go to work now and not back till this evening:mad: thanks 42man for that!

 

With ref to your post IGNM..(343) about them possibly getting it reinstated, is there anything i could do to prevent that at this stage? Not sure if this is the correct term but, do i need to get judgment in my favour or something along those lines?

 

Thank you so much for all help received this morning

 

MJ

 

Assuming it is struck out and they apply promptly to reinstate the case yes you can oppose the application but in my view it will succeed. There is nothing that you can do at this point about it.

 

The real issue is has the claim been struck out or not - that's what we need to make a decision on ASAP.

 

I think that technically it has BUT I'd like some other input - I've asked the site team for their thoughts

[mandyjayne]

IGNM

This is the letter they sent me as NOA,(and this is not on headed paper)

13 Feb 2007

The above debt has been passed to us for collection.

Payment of the outstanding balance of £6***.** is required immediately.

Please contact us immediately on ********* to make payement, or send a cheque for the full amount to the address below, with your name written on the back of the cheque.

If you are unable to make payment in full, you must still contact us on ********to discuss your situation.

Failure to respond to this letter may result in :

The account being passed to our Litigation Department to take enforcement action, which may result in a County Court Order being made against you: or

Arrangements being made for one of our field collectors to visit to discuss your financial situation and make a payment arrangement with you.

Yours Faithfully

M***** F***** S****

 

MJ

[I've got no money]

IGNM

This is the letter they sent me as NOA,(and this is not on headed paper)

13 Feb 2007

The above debt has been passed to us for collection.

Payment of the outstanding balance of £6***.** is required immediately.

Please contact us immediately on ********* to make payement, or send a cheque for the full amount to the address below, with your name written on the back of the cheque.

If you are unable to make payment in full, you must still contact us on ********to discuss your situation.

Failure to respond to this letter may result in :

The account being passed to our Litigation Department to take enforcement action, which may result in a County Court Order being made against you: or

Arrangements being made for one of our field collectors to visit to discuss your financial situation and make a payment arrangement with you.

Yours Faithfully

M***** F***** S****

 

MJ

 

In that case then I withdraw my earlier observation - I don't think that is a valid NoA

 

"The above debt has been passed to us for collection" - that doesn't tell you or even imply that there has been an assignment

[mandyjayne]

Thank you very much IGNM

I feel a bit better now once again thanks for all your help this morning and I will check back tonight when I get back from work MJ

[mandyjayne]

Hi IGNM

 

Can you explain a little more on your comment below...

 

"In that case then I withdraw my earlier observation - "

 

thanks MJ

[I've got no money]

Hi IGNM

 

Can you explain a little more on your comment below...

 

"In that case then I withdraw my earlier observation - "

 

thanks MJ

 

I meant when I said earlier that I thought it was a Reply to Defence after seeing it I realised that it wasn't

[mandyjayne]

I would write to the Court Manager - mark your letter URGENT and send it by Fax or special delivery or hand deliver it and get a receipt. It needs to arrive at court ASAP

 

I'd say something like this

 

"Dear Sirs,

 

Re: Case name and Number

 

I refer to the above and to the Order of the 28th April 2009 that the Claimant shall by 4pm on the 22nd May 2009 serve me with disclosure, pursuant to the order of the 11th March.

 

I would advise that the Claimant has failed to comply with the Order and did not serve the required disclosure by 4pm on the 22nd May.

 

In the circumstances my understanding is that the Claim is struck out without further Order. As there is now no claim. it having been struck out, I consequently do not propose to file a defence.

 

I look forward to receiving a sealed copy order formally striking out the Claim in due course.

 

Yours faithfully"

 

Can i just confirm with you, this letter i have sent..do i need to do, or send anything else as my deadline is Friday..in response to the "Reply to Defence"....just triple checking before its too late.

 

mj

[I've got no money]

If I am right that the Claim has been struck out then no you don't...

 

I'd quite like another Cagger - somebody like PT - to tell me if they agree with me. I have asked the site team but no one has come back to me.

 

I think what we may need to do is, in order, to protect your position is to file a defence

[mandyjayne]

Hi IGNM...Thanks for your reply

 

I pm'd PT about a week ago but it can be hard to get hold of him as im sure you know!!

 

Just for info i have just telephone the court and they said my file has been sent up to the DJ as they have not complied with the Order...she cant confirm (obviously) the strike out. But if thats what it says on the Order thats what is likely to happen.

 

I am to wait a couple of weeks as something will come out to me in writing.

 

If you think a defence on my part is needed then thats what i shall do.

 

Thanks MJ:)

 

ps i've just red triangled for help so fingers crossed!

Edited June 4, 2009 by mandyjayne

[the_shadow]

If I am right that the Claim has been struck out then no you don't...

 

I'd quite like another Cagger - somebody like PT - to tell me if they agree with me. I have asked the site team but no one has come back to me.

 

I think what we may need to do is, in order, to protect your position is to file a defence

 

Now in laymans view I liken court to a game of chess, each party has a turn so to speak:-

 

So in my eyes, the claimant has replied to the order but late and not fully quantifying what documents have been sent.

 

The defendant has then asked for a strike out on the basis that the order hasnt fully been responded to and now it sits before a judge.

 

I would have thought no need for the defense unless the judge dismisses the strikeout application? and if he does dismiss he should give more time for the defense to be filed otherwise it prejudices the case when the defendant has claimed they have not fully had the information required.

 

Am I being too simple about this?

 

S.

 

[mandyjayne]

Hi Shadow..

 

That just about sums it up!

 

Lets see if anyone else has the same view as your good self...

 

Thanks S.

 

MJ:D

[I've got no money]

Now in laymans view I liken court to a game of chess, each party has a turn so to speak:-

 

So in my eyes, the claimant has replied to the order but late and not fully quantifying what documents have been sent.

 

The defendant has then asked for a strike out on the basis that the order hasnt fully been responded to and now it sits before a judge.

 

I would have thought no need for the defense unless the judge dismisses the strikeout application? and if he does dismiss he should give more time for the defense to be filed otherwise it prejudices the case when the defendant has claimed they have not fully had the information required.

 

Am I being too simple about this?

 

S.

 

 

I agree with you my only concern is as I pointed out in my earlier posting

 

"They say that they disclosed the information requested in your letters of the 17th November BEFORE the Order was made - I think that doesn't let them off the hook as the Court ordered them to do it after the Order and before the 22nd May and so I think that they are struck out. HOWEVER that is a very technical interpretation and I would like some other views on it."

 

My concern is that if I'm wrong they might be able to enter a default Judgment - that said the letter that MJ has sent to the Court telling the court that they haven't complied with the Unless Order should stop them entering a default judgment.

[the_shadow]

I agree with you my only concern is as I pointed out in my earlier posting

 

Ok I've just gone back and re-read this entire thread!

 

Key points of SAR information as I see it:-

 

17th Nov SAR sent (template hopefully form the debt forum?)

30th Dec LBA for non-compliance with SAR

xx Jan Response from claimant not compliant - No default notice

21st JAN CPR 31.14 letter

10th Mar Response from Claimant Still no Default notice

23rd May Further docs but still no default notice

Reply to defense states defendant needs to go to OC for further information.

 

Now as I see it without a default notice they can show no legal exit from the CCA1974 agreement and hence no case, its up to them to provide this.... not the defendant to request it. Without this document they have no cause for action at all as far as I can see it.

 

Thus as the default notice was listed in the 17th Nov letter and subsequent order by the judge they have not complied despite their assertion that they have.

 

what perhaps we should have done is a strike out application on the fact no default notice has been served or presented to the defendant and as such no case to answer as the agreement was not legally terminated, Steven4052 did one on an amex case not long ago.

 

I wonder if the judge will ask for a prelim hearing to ascertain which documents have been delivered and which havent?

 

S.

 

Edited June 4, 2009 by the_shadow
missed words tsk. tsk.

[mandyjayne]

Thanks guys...

 

shadow i was just going to ask the same thing refering to a section from the CCA request template below (does this paragraph mean) they have to suppy under this request:

 

1 CCA

2 NOA

3 TN

4 DN

 

"This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide."

 

And yes the SAR and CCA sent, was from CAG

 

And please bear in mind i have NEVER received a DN, the NOA posted on here is not a valid one the CCA they sent is an application form with no t's and c's attached and no Termination Notice.

 

and this is what steven4062 said about the application form they sent:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/167654-help-ccj-charge-home-13.html#post2187667

 

thanks MJ

Edited June 4, 2009 by mandyjayne

[the_shadow]

Thanks guys...

shadow i was just going to ask the same thing refering to a section from the CCA request template below (does this paragraph mean) they have to suppy under this request:

 

1 CCA

2 NOA

3 TN

4 DN

 

And yes the SAR and CCA sent, was from CAG

 

And please bear in mind i have NEVER received a DN, the NOA posted on here is not a valid one the CCA they sent is an application form with no t's and c's attached and no Termination Notice.

 

thanks MJ

 

Good..... the CAG debt templates have in them requests for the default notice. As to s78 request it means t&c that applied or have been varied not the extra bits you list. The app form you have recieved has the t&c on the back so they will claim....... although it looks a microfiche so if ever it did get to court it would have to be acknowledged as hearsay evidence and could be questioned accordingly.

 

However I think youre missing the point MJ, without a DN they cant claim anything as the agreement has not been proven to have been terminated correctly.

 

S.

 

IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinions. These opinions are based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal or debt related training.

[WelshMam2009]

As an aside, I have just had my SAR back from MBNA. There are no copies of any default notices in there although I know they've been issued as I'm currently papering the downstairs loo with them!!

 

Seriously though, what I do have is a copy of a print out/ computer log and on there is reference to a DN being issued and the dates which, in fairess, tally with what was sent. (Such a shame they haven't allowed enough time!!)

 

It's pretty commonplace for these to be computer generated and no copies kept. My understanding of reading these threads is that Judges appear to be prepared to accept these records as proof of a DN together with a print out of what would have been issued.

 

Do you have any such print outs that you can check MJ??

[the_shadow]

As an aside, I have just had my SAR back from MBNA. There are no copies of any default notices in there although I know they've been issued as I'm currently papering the downstairs loo with them!!

 

It's pretty commonplace for these to be computer generated and no copies kept. My understanding of reading these threads is that Judges appear to be prepared to accept these records as proof of a DN together with a print out of what would have been issued.

 

Do you have any such print outs that you can check MJ??

 

Absolutely correct, most are templates letters that merge with your personal data and get printed straight away....

 

The point I'm making and probably not very well is that in the letter of 17th Nov the defendant requested a copy of this document. The claimant hasnt provided it or details of whether one was created and therefore they have no cause of action UNTIL they get a copy of that document or details of when it was sent and are as such in breach of the order by the Judge.

 

MJ will need to complain about the SAR MBNA response tho to get the printouts and details of when a DN was supposedly sent and where to possibly.

 

S.

Edited June 4, 2009 by the_shadow
added bits originally missed due to speed reading/writing

[WelshMam2009]

Absolutely correct, most are templates letters that merge with your personal data and get printed straight away....

 

The point I'm making and probably not very well is that in the letter of 17th Nov the defendant requested a copy of this document. The claimant hasnt provided it or details of whether one was created and therefore they have no cause of action UNTIL they get a copy of that document or details of when it was sent and are as such in breach of the order by the Judge.

 

MJ will need to SAR MBNA tho to get the printouts and details of when a DN was supposedly sent and where to possibly.

 

S.

 

Yep, don't disagree Shadow...just suggesting MJ check for any evidence of one having been issued.

 

If she has a log and there is nothing recorded against the alleged date of issue then that should also strengthen her case;)

[citizenB]

IMHO, the document claiming to be an agreement cant be so.

 

It is obviously a mailer application form and to have the financial details in the position they have suggested would have meant they would have been visible to the postman once the form was folded for return.

 

Rather dangerous I would have thought:)

[mandyjayne]

Well Hello Welshmam!

 

Yes i received the same computer/print out back in March, i have just checked through mine and there is no reference to any DN.

 

mj

[I've got no money]

As far as MJ is concerned then - there is an order that they comply and we say that they haven't.

 

The case should therefore be struck out - they will then have to apply to reinstate and at that point there should be the argument about if they have or have not complied

[the_shadow]

As far as MJ is concerned then - there is an order that they comply and we say that they haven't.

 

The case should therefore be struck out - they will then have to apply to reinstate and at that point there should be the argument about if they have or have not complied

 

thats how I understand it... and if and when they do re-instate and do comply with getting a copy of a/the default notice the defence should be amended to note the unenforceable agreement/application, possibly dodgy due to service days default notice and possibly dodgy NoA or an attempt should be made to strike out due to faulty DN possibly

 

S.

[the_shadow]

Yep, don't disagree Shadow...just suggesting MJ check for any evidence of one having been issued.

 

If she has a log and there is nothing recorded against the alleged date of issue then that should also strengthen her case;)

 

Sorry WelshMam, had to run off to a meeting and just quickly replied.. totally missed the first three words of your post

 

S.