Pudsters14 vs MBNA

[steven4064]

Hi mfpa

 

It may make a difference if you end up taking them to court - you must make sure you get the name of the entity you are suing correct

[mfpa]

If they are taking you to court, does it make a difference if the entity suing you has a different name to the entity MBNA told you they were assigning the debt to?

[steven4064]

I don't think so, mfpa, provided the entity that is suing you can prove that MBNA assigned the debt to them

[pudsters14]

What should a deed of assignment look like? Is there a particular format?

 

Pudst

x x x x

[pudsters14]

Oh and mpfa...

 

mine was the same Link Financial-Lin but it says Link Financial Limited on the court papers

 

Pudst

x x x x

[pudsters14]

Oh and... i keep thinking of more questions, is there a specific format for default notices and what are the time frames incorporated with this?

 

They only wrote to me on 8th April to introduce themselves, I hardly think they have adhered to time frames?

 

I'm trying to make a list of all the faults so that I can put it into my defence...

 

Pudst

x x x x

[ian1969uk]

Not attaching the agreement to the claim form is in contravention of Practice Direction 16 (7.3) of the Civil Procedure Rules

 

Sorry, that's not correct:

 

PRACTICE DIRECTION – MONEY CLAIM ONLINE

 

5.3 Paragraph 7.3 of the practice direction supplementing Part 16 (statements of case), which requires documents to be filed with the particulars of claim in contract claims, does not apply to claims started using an online claim form.

[pt2537]

quite right in what you are say ian1969uk insofar that moneyclaims do not fall under the practice direction provisions

 

However, the CPR has its own section in relation to claims brought under the 1974 Act and therefore, service of documents is a procedural requirement

PRACTICE DIRECTION – type="start" timestamp="1167928462736"CONSUMER CREDIT ACT 2006 – UNFAIR RELATIONSHIPStype="end" timestamp="1167928462736" - This Practice Direction Supplements CPR Rule 7.9

[pt2537]

3.1 Subject to paragraph 3.2 and 3.3 this practice direction applies to claims made under the following provisions of the Act:

(1) section 141 (claim by the creditor to enforce regulated agreement relating to goods etc),

(2) section 129 (claim by debtor or hirer for a time order),

(3) section 90 (creditor’s claim for an order for recovery of protected goods),

(4) section 92(1) (creditor’s or owner’s claim to enter premises to take possession of goods),

(5) section 140B(2)(a) (debtor's or surety's application for an order relating to an unfair relationship);

(5A) section 139(1)(a) (debtor's claim for a credit agreement to be reopened as extortionate);

(6) creditor’s or owner’s claim for a court order to enforce a regulated agreement relating to goods or money where the court order is required by –

(a) section 65(1) (improperly executed agreement),

(b) section 86(2) of the Act (death of debtor or hirer where agreement is partly secured or unsecured),

© section 111(2) (default notice etc not served on surety),

(d) section 124(1) or (2) (taking of a negotiable instrument in breach of terms of section 123), or

(e) section 105(7)(a) or (b) (security not expressed in writing, or improperly executed).

3.2 This practice direction does not apply to any claim made under the provisions listed in paragraph 3.1 above if that claim relates to the recovery of land.

3.3 This practice direction also does not apply to a claim made by the creditor under section 141 of the Act to enforce a regulated agreement where the agreement relates only to money. Such a claim must be started by the issue of a Part 7 claim form.

 

 

 

.....

[steven4064]

Sorry, that's not correct:

 

PRACTICE DIRECTION – MONEY CLAIM ONLINE

 

5.3 Paragraph 7.3 of the practice direction supplementing Part 16 (statements of case), which requires documents to be filed with the particulars of claim in contract claims, does not apply to claims started using an online claim form.

 

quite right in what you are say ian1969uk insofar that moneyclaims do not fall under the practice direction provisions

 

However, the CPR has its own section in relation to claims brought under the 1974 Act and therefore, service of documents is a procedural requirement

PRACTICE DIRECTION – type="start" timestamp="1167928462736"CONSUMER CREDIT ACT 2006 – UNFAIR RELATIONSHIPStype="end" timestamp="1167928462736" - This Practice Direction Supplements CPR Rule 7.9

Thanks guys - learning all the time

[mitzbag]

Bit confused? Does this mean that they should of supplied the copy of agreement and statement of debt with the claim form or not???? Also does this mean that they do not have to reply to the section 18 request? Also can anyone give details on what a "notice of assignment" should look like/ contain??? thanks the bag x

[steven4064]

mitzbag

 

I think what it boils down to is that, if they filed an N1, it should have the agreement attached. If they filed via MCOL, they should serve it seperately.

 

However, the section of the practice direction linked in pt's post doesn't actually say tey must serve a copy of the agreement (although that would be the easiest way of complying wit the direction)

Edited May 18, 2008 by steven4064

[pudsters14]

Hi all, I'm back, have called the court this morning and they have received my acknowledgement of service so my defence has to be filed by the 16th June.

 

Just a quick question... what does a notice of assignment contain or look like? should it have specific details on it, such as amount? Does it have to be in a specific format? Who sends it?

 

I was looking through my file last nite and i have never been sent a default notice by MBNA only link, and I don't think the link one actually identifies the debt. I will type it on so you can see....

 

Pudst

x x x

[pudsters14]

Important

[pudsters14]

This was sent on letter-headed paper with their name, address and email.

Pudsters 14

Xxxxxxxxxxxx

X x x x x x x

X x x x x x x

My address

1st CLASS POST

Link Ref: xxxxxx

24 April 2008

IMPORTANT – YOU SHOULD READ THIS CAREFULLY

Default Notice: Served under Section 87 (1) of the Consumer Credit Act 1974

Dear Pudsters14

REFERENCE AGREEMENT NO xxxxxx (they have just put their link ref number nothing else to identify the debt)

ASSIGNOR MBNA EUROPE BANK LIMITED (MBNA), Stansfield House, Chester Business Park, CHESTER, CH4 9QQ

ASSIGNMENT DATE 21 January 2008

We, Link Financial Limited, give you notice of default acting on our own behalf as assignee of the benefit of the above referenced agreement and debt, and on behalf of MBNA to the extent that they are still a creditor.

You have breached clauses 1b and 8 of the agreements which require you to make payments at stated times. In order for you to remedy this breach you are required to make full repayment of the outstanding balance £3424.73 by 08th May 2008.

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THIS BREACH.

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

On or after the 08th May 2008, the agreement will be terminated and we will take court proceedings without further notice to recover the whole amount owed by you to us.

IF YOU HAVE ANY DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME.

IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU.

We may be contact on 0207 793 2658 should you wish to organise repayment. Our specialists are available to assist you from blah blah blah

Yours sincerely

Selina Burdell

Operations Director

[pudsters14]

This is what i was thinking

 

1. They have only used the link reference number, no MBNA number so it doesn't tie-up with the alleged debt at all.

2. It doesn't mention what type of agreement it is on there at all, still doesn't tie in with anything else.

3. The court papers have got a different reference number on them so this default doesn't even match with that.

4. No information sheet sent with this.

 

Can anyone else see any other faults, from what I could see everything else that should be there is. However I don't think that this describes the agreement to sufficiently identify it....

 

Pudst

x x x x

[pudsters14]

Well it's all happening today....

 

Just had a phonecall from you know who, my new fave friends Link,

 

I'm in work so couldn't answer anyway they left me an answering machine message but when I listened to it, it was just blank...

 

So I gave them a callback...

 

1st person I spoke to said that they were calling so that I could make a payment resolution and that I had to make them an offer of payment,... I explained that the account was in criminal dispute as I had already advised their company numerous times. She said that she could see someone had been dealing with the account and passed me on.

 

Another girl came on the phone and again I explained that they had called me and that I was returning their call. She tried saying that Link had only been assigned this account since the 13th May and that it must have been with another company before then. I explained that their own paperwork said that it had been with them since the 21 January. She said 'oh yeah the london office'

 

She then stated that the London office is different to the Caerphilly office. She said that she couldn't see who i had spoken to and made out as if it had been sold from one office to another... very odd to me!

 

She tried to make out as if I had told her not to send the agreement, but i reinforced the fact that i have sent them a section 18 request and that i have asked for it in that and that they may as well reply altogether. I then said surely you should be serving this anyway if you're taking me to court, she said she didn't know....

 

She did however at one point say that as I was a homeowner and the balance is high they would take court action... erm 1. you already have 2. is this a threat?!? why would she mention my home, charging order?!?!?!?

Are they allowed to make such threats when they have already filed a claim anyway? In fact are they even allowed to ring me when they have already filed a claim? Is this not harrasment/intimidation?

 

She said other stuff but i just kept redirecting the conversation back to my section 18 request and the lack of executed credit agreement, she gave up on me and eventually ended the call.

 

At the end she said anything else i can help with? I reconfirmed that they had rung me and that I was merely returning their call....

 

They are absolute jokers!

 

Pudst

x x x x

[pudsters14]

Hi all

 

I have been going through allsorts with MBNA and now Link, I have been advised to put a thread in the legal section to get some advice and opinions.

 

Please have a look at my thread

 

http://www.consumeractiongroup.co.uk/forum/mbna/77464-pudsters14-mbna-4.html

 

Thanks

 

Pudst

x x x x

[citizenB]

Ummm, you should not have phoned them. Anything they have said will never see the light of day unless you recorded the call.

 

Is any of the CAPITALISED PARAGRAPH UNDERLINED Do you know if the default notice amount contains any charges ?.

 

In fact as a default notice it looks very messily set out. However, I have no real knowledge of this.

[pudsters14]

the only bits that are underlined in the capitalised stuff is 'before the date shown' in both paragraphs.

 

the amount definately includes charges as this dispute has been going on since march last year

[citizenB]

pudsters, that link above just returns me here ?.

 

If I read other threads correctly then the default notice could be inaccurate because the amount must not contain charges.

[Peterbard]

Hi

Hi

Unfortunately the APR is not a prescribed term on this kind of aagreement. It is required and could be used to challenge the agreement in that there was insufficiant information pre-contracually ,but this at best would just enable the judje to modify the contract under 127 . In reality this approach has rarely been successful.

RE the cancellation details, i am sure they will say have been sent with the card and it is very difficult to prove otherwise,unfortunately the court will rule on the ballance of probabilities and again from experiance they invariably come down on the side of the creitor unles you have a cast iron case.

Sorry to be such a wet blanket

Best regards

Petr

Edited May 20, 2008 by Dodgeball
spelling still rubbish

[pudsters14]

Hi citizen B, i think my threads have been merged, if you go back further on this thread, it starts from the beginning.

 

Hi Peter, what would your next course of action be in this case then? there are numerous things that are wrong and that they have done wrong... link haven't even supplied any paperwork as yet?!?

 

All opinions are appreciated

 

Pudst

x x x x

[pudsters14]

DEFENCEIn the Northampton County CourtClaim Number: XXXXXXXXBetweenLink Financial LimitedAndPudsters14 - Defendant1. I, Pudsters14, am the defendant in this action and make the following statement as my defence to the claim made by Link Financial Limited.2. The defendant does not admit or deny the debt, and put the claimant to strict proof thereof.3. On 15th May 2008 the defendant sent a request under the Consumer Credit Act for a true copy of the executed Credit Agreement, and a statement of account detailing the principal, and all charges and fees made in respect of the debt, the claimant received the request on the 19th May 2008 by special delivery and the claimant has so far failed to send the defendant the required information.4. I would respectfully submit that the debt is unenforceable under the Consumer Credit Act 1974 until such time as the claimant provides the necessary information.5. I would also respectfully request that the court order the claimant to produce the original signed agreement before the court to show the form and content of it and that it complies with the Consumer Credit Act 1974, otherwise the court’s powers of enforcement are surely limited in these circumstances.6. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing all the prescribed terms, I request that the court uses its powers under section 142 of the Consumer Credit Act 1974 and declare the agreement as unenforceable. 7. The claimant states the alleged debt was purchased from MBNA. I have not received a notice of assignment for the alleged debt from the original creditor. I therefore put the claimant to strict proof that privity of contract exists between the Claimant and Defendant.8. The default notice sent from Link Financial Limited on 24th April 2008 did not follow the correct procedure and was not in the correct format. The default notice did not sufficiently describe the debt in order to identify it. The defendant also never received any letter before action. Therefore the defendant was not served with the proper notice before this claim was submitted. (A copy of the default notice as attached to this defence headed Exhibit A)9. Further to the case, on 15/05/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to, a copy of the Credit Agreement referred to in the Particulars of Claim, terms and conditions that applied to the account both at the time of default and at the time the account was opened, transcripts of all telephone conversations recorded and any notes made in relation to telephone conversations by the claimant, or by any other previous creditor, any event in the account history which has required manual intervention and true copies of any notice of assignment or enforcement notice that the claimant or the original creditor sent to me (with any proof of postages held). Documents and details relating to any insurance added, details of any collection charges added to the account (with a financial breakdown of how the charge was calculated and what the charge covers), details of any other fees or charges, a genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998, a list of third party agencies to whom the claimant has disclosed by personal data, copy statements for the entire duration of the credit agreement and any other documents the Claimant seeks to rely on in court including any default notice.10. On 30th May 2008 the claimant refused my request under the Civil Procedure Rules and I have not received any such documentation. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am litigant in person. The claimant has also stated therein that they are not entirely satisfied that I am indeed their customer. (A copy of the request and claimants response is attached to this defence marked exhibit B and exhibit C).11. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant’s claim. 12. Therefore, in addition to asking the court to order the disclosure of the credit agreement, notice of default in the form required by the Consumer Credit Act 1974, and notice of assignment in the form required by the Law of Property Act 1925, the defendant also requests that the court order the claimant to disclose a list of all charges made to the account and a list of the costs associated with each charge for the last six years to prove that the debt amounts to the amount claimed.13. It is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial. 14. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under pre-trial protocols in order to investigate this claim, and having failed to investigate a dispute as required by the OFT Debt Collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. The claimant has acted merely to obstruct proceedings and threaten the defendant even after court papers were served. This has caused unreasonable stress and worry by the defendant. Furthermore, the claimant’s behaviour is entirely vexatious and wholly unreasonable.15. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant.Signed---------------------------------------Date: ___/___/_______________________________________________________

Edited June 11, 2008 by steven4064

[pudsters14]

Right it hasnt put that on properly here goes again, please let me know what you think, any changes etc.... its going in the post spesh delivery 2mrw.... this is bits and bobs ive nicked from defences on here.... Pudstx x x ________________________________________________________

 

In the Northampton County Court Claim Number: XXXXXXXXX

 

Between

 

Link Financial Limited - Claimant

 

And

 

Pudsters14 - Defendant

 

----------------

 

DEFENCE

 

----------------

 

1. I, Pudsters14, am the defendant in this action and make the following statement as my defence to the claim made by Link Financial Limited.

 

2. The defendant does not admit or deny the debt, and put the claimant to strict proof thereof.

 

3. On 15th May 2008 the defendant sent a request under the Consumer Credit Act for a true copy of the executed Credit Agreement, and a statement of account detailing the principal, and all charges and fees made in respect of the debt, the claimant received the request on the 19th May 2008 by special delivery and the claimant has so far failed to send the defendant the required information.

 

4. I would respectfully submit that the debt is unenforceable under the Consumer Credit Act 1974 until such time as the claimant provides the necessary information.

 

5. I would also respectfully request that the court order the claimant to produce the original signed agreement before the court to show the form and content of it and that it complies with the Consumer Credit Act 1974, otherwise the court’s powers of enforcement are surely limited in these circumstances.

 

6. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing all the prescribed terms, I request that the court uses its powers under section 142 of the Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

7. The claimant states the alleged debt was purchased from MBNA. I have not received a notice of assignment for the alleged debt from the original creditor. I therefore put the claimant to strict proof that privity of contract exists between the Claimant and Defendant.

 

8. The default notice sent from Link Financial Limited on 24th April 2008 did not follow the correct procedure and was not in the correct format. The default notice did not sufficiently describe the debt in order to identify it. The defendant also never received any letter before action. Therefore the defendant was not served with the proper notice before this claim was submitted. (A copy of the default notice as attached to this defence headed Exhibit A)

 

9. Further to the case, on 15/05/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to, a copy of the Credit Agreement referred to in the Particulars of Claim, terms and conditions that applied to the account both at the time of default and at the time the account was opened, transcripts of all telephone conversations recorded and any notes made in relation to telephone conversations by the claimant, or by any other previous creditor, any event in the account history which has required manual intervention and true copies of any notice of assignment or enforcement notice that the claimant or the original creditor sent to me (with any proof of postages held). Documents and details relating to any insurance added, details of any collection charges added to the account (with a financial breakdown of how the charge was calculated and what the charge covers), details of any other fees or charges, a genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998, a list of third party agencies to whom the claimant has disclosed by personal data, copy statements for the entire duration of the credit agreement and any other documents the Claimant seeks to rely on in court including any default notice.

 

10. On 30th May 2008 the claimant refused my request under the Civil Procedure Rules and I have not received any such documentation. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am litigant in person. The claimant has also stated therein that they are not entirely satisfied that I am indeed their customer. (A copy of the request and claimants response is attached to this defence marked exhibit B and exhibit C).

 

11. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant’s claim.

 

12. Therefore, in addition to asking the court to order the disclosure of the credit agreement, notice of default in the form required by the Consumer Credit Act 1974, and notice of assignment in the form required by the Law of Property Act 1925, the defendant also requests that the court order the claimant to disclose a list of all charges made to the account and a list of the costs associated with each charge for the last six years to prove that the debt amounts to the amount claimed.

 

13. It is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

14. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under pre-trial protocols in order to investigate this claim, and having failed to investigate a dispute as required by the OFT Debt Collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. The claimant has acted merely to obstruct proceedings and threaten the defendant even after court papers were served. This has caused unreasonable stress and worry by the defendant. Furthermore, the claimant’s behaviour is entirely vexatious and wholly unreasonable.

 

15. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant.

 

Signed---------------------------------------

 

Date: ___/___/_____

Still not quite right but should be readable now Edited June 11, 2008 by steven4064