1st Credit/mbna... Applying For Finalcharging Order. Advice Please

[Rhia]

THERE'SHOPE. I have exactly the same problem with MBNA but not the charging order however the DCA has started court proceedings. You must issue a court summons for non compliance against MBNA. I have done this and if you PM me if you need help with it. You can do it today online. It will cost £50 but MBNA will have to pay these costs back to you.

Also if you owe money elsewhere you can argue that it would be unfair to your other creditors if 1ST Credit were to be given a charging order and set out exactly who you owe and what so the judge can see it.

Best to PM me and I can email with you offboard as have other idea.

[Rhia]

Keep the faith There'sHope. You are doing the right thing. Have PM'd you.

[Rhia]

Tremendous work here InK and BA. I think there really is hope for There's Hope. I think she has another 28 days but TH will confirm. There isn't long but I agree with BA I would start action against Ist Credit and MBNA for non disclosure. I have started my own action against MBNA for non disclosure and they are trying to defend it all.

Totally ridiculous as they have either supplied the info or they haven't. And as they haven't what is there to defend? If by doing this they are stalling and guilty of concealment then I shall bring this to the full view of the Judge in both cases. I hope they are reading this as they have now committed a criminal act but I won't hijack TH's thread. Will post my own in a couple of weeks.

[Rhia]

TH - excellent work and obviously not a moment too soon. Now take a big breath and all you can do is wait for the next part to roll along.

However as you have some more issues to address start on those and then your OH will start to feel a bit more relaxed. A real milestone for you.

[Rhia]

It really is a great feeling isn't it? To be in the driving seat.

The bits I sent were just that, bits, there's loads more for you but as you can see from the amount of time it took you today it is labour intensive. Anything else you need just yell.

[Rhia]

TH go back to them with the letter as InKog has said above but also include a list of things that are missing. Also can you see any info in there about the default proceedings and default notices. I have just been looking an MBNA SAR over for someone and there is no default procedure of any type listed.

I would also suggest you ask them to specifically state if they do not have any item of information listed as then it totally clarifies the situation for both yourself and MBNA and will remove the need to keep going back to them. But until they have done this they haven't properly complied.

[Rhia]

Good vibrations from me too TH. And Richard Spud if you can do anything to help TH she needs a great wrong to be put to rights. Just hope that today turns her on the road to right side up.

[Rhia]

TH what can I say? You must be feeling very bruised. You put up a great fight but I guess you knew that as you had admitted the debt it would be difficult. Rule No1 for all of us NEVER admit the debt.

In an odd way I did wonder if the judge was tryin g to help you. I know this sounds nuts but we all know that a CO really means nothing until you move house so they will have to sit there and wait. However he said that they would come back and put you in Fast Track and that would cost you thousands so it may be he was trying to help in a wierd way.

Will email you privately. But remember you have lost this battle but no the war and you know how to work now. Big Hugs.

[Rhia]

There's Hope perhaps an appeal is the way forward and could this (posted by Richard Spud on the Consumer Credit Agreement thread) be the basis of your appeal. Most of these DCAs use the Law of Property Act 1925 to claim these debts so look at the bit about assignment under this Act.

COPY OF DEED OF ASSIGNMENT (DOA) OF A DEBT

 

It may help if I suggest that while there is no obligation for a Creditor Assignee to provide a copy of a DOA when a request is made by a Debtor under ss.77,78 of the CCA 1974, there is no restriction on requesting the voluntary production in support of a claim of assignment. However, I doubt if a Creditor Assignee (or indeed the Assignor) would provide this information as the DOA would undoubtedly contain the consideration (the sum) paid by the Assignee. Nevertheless, I submit that if proceedings have been instigated in the County Court by the Creditor Assignee, then I believe the Defendant Debtor could serve on the Claimant a Part 18 Request For Clarification And Further Information (under the Civil Procedure Rules) referring to the DOA and enquiring if it is to be pleaded. I understand that a response is required to by way of a Statement Of Truth and any copy documents on which the Claimant intends to rely should be annexed thereto –the original documents to be produced at a subsequent hearing for inspection by the Court and the Defendant.

 

I assume that it is known that for a legal assignment (as opposed to an equitable assignment) of a debt to have effect so that the Assignee can sue in their/its own name, the requirements of the Law of Property Act 1925 need to be fulfilled and that the assignment is not effective until the Debtor has received a Notice of Assignment – not the date when the Notice of Assignment was posted. Consequently, should a Creditor Assignee be unable to provide evidence of service and the Defendant has not received a Notice of Assignment when proceedings have already been brought in the County Court then, I suggest, it might be reasonable to file an application for the Claim should be struck out on the grounds that Assignment has not been pleaded and that proceedings cannot be brought prior to the service of a Notice of Assignment.

 

Authorities to check:

 

Law of Property Act 1925 s.136

 

Holt v Heatherfield Trust Ltd [1942] 2 KB 1; Holwell Securities Ltd v Hughes [1973] 2 All ER 476 [1973] 1 WLR 757

 

Hope this helps.

 

A Well Wisher.

[Rhia]

Gizmo. Are you saying just leave it. It's not the end of the world and TH can go after the charges etc from MBNA to reduce her debt and may be able to make some sort of offer to pay them off?

[Rhia]

Yes TH do exactly that. There is something called a Part 18 request under the Court Rules (CPR) It applies in fast track not small claims (ie under £5k). If you issue your request, send a copy to the court and ask the Judge to rule they comply.

If they don't have an agreement it should be grounds to get it set aside. It ain't over until the fat DCA sqwauks.