Pudsters14 vs MBNA

[steven4064]

Hi pudsters

 

You need to make the request in writing not over the phone - make the "request for a copy of the executed agreement for the acount under s78(1) of the Consumer Credit Act 1974". You will need to send the statutory fee of £1 (postal order not cheque - signature again )

 

Print you name with the letter and sign over the top in a different colour - that way they can't scan it.

[steven4064]

Thanks ncf

 

My post and pt's crossed

[steven4064]

Thanks guys, will send that letter special delivery 2mrw, do i send that to link?

Yes

With the court, do i sent the acknowledgement straight away today as I believe this buys me some extra time?

There is no advantage in waiting, you get 28 days once you have acknowledged

Oh and do i send a copy of that letter to the court today? or wait until they don't respond?

If youi mean the part 18 letter, you should copy it to the court.

oh and they have never sent me a letter before action or default notice etc...

That will be an important part of your defence - no lba = not following court procedures, no default = no right of action

[steven4064]

Several questions:

 

1. did they send a Letter Before Action? (actually I see the answer is in post #35)

2. did they send you a default notice ?

3. did they send you a notice of assignment?

4. did they attach the agreement referred to to the claim form

5. have they sent a statement of account showing how the £3526.73 is calculated?

[steven4064]

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

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

The fact that they haven't included any statement of account means that the claim is not adequately particularised and te two together maens the POC discloses no legal cause of action. The fact that you haven't been sent a Notice of Assigment means that, as far as you are aware, Link Financial have no legal right of action.

[steven4064]

Put it in your defence. When does that have to be in?

Edited May 16, 2008 by steven4064

[steven4064]

If they say you owe £x.xx they need to provide sufficient evidence that you do indeed owe that much (and exactly that much)

 

If there are unlawful penalties then you can dispute the amount and also insist they reveal their costs in order to demonstrate that they are not unlawful. That usually sees them off because there is no way they will do that.

[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

[steven4064]

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

[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

[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

[steven4064]

From a quick read-through, it seems OK

[steven4064]

Well done nicklea, I missed that

[steven4064]

I would ignore them for the time being (except perhaps to correct their 'misunderstanding'). Ina while you will get an AQ from the court - in your reply to this you will have another opportunity to request any info that the other side has not yet provided.

[steven4064]

Hi pudster

 

This may be too late. My only comment is that it might make it clearer to spell out the information that you want them to provide (just to help the court). If you haven't, I don't think it matters as you have made it clear elsewhere. Apart from that, IMO what you have written is great.

[steven4064]

Yes, you could use that. You could also attach a copy of the CPR18 request for info.

[steven4064]

In section G put that you have included draft order for directions which will provide information without which you cannot make a proper defence and whose provision will further the overriding objective.

[steven4064]

THat looks good

[steven4064]

Oh and Steven can I PM you... think they have dropped themselves in it a bit but would like to see what you think and keep this as my trump card! Pudst x x x x x

PM away

[steven4064]

Thanx Steven... it was working 4 ages... dont know whats happened!

Look in 'quick links' (blue bar at the top, under the banners), 'edit options' and right at the bottom 'miscellaneous options' - have you got message editor interface set to 'enhanced interface - full WYSIWYG editing'?

[steven4064]

Good stuff pudst

 

When you get (operhaps, if you get... ) amended POC, let us see it and we'll help with the amended defence.

[steven4064]

Yes please

[steven4064]

Hi pudst

 

They are not allowed to charge s69 interest on a regulated agreement but they can claim fees.

 

they still need an original agreement though - you should concentrate on that. A copy of random T&Cs will not do. CPR Practice Direction 16 paragraph 7.3 is the authority for the need for an original agreement (not a copy)

[steven4064]

The problem though is that it gives them a let out when the CPR demands that the original should be produced in court for a claim based on written agreement.

[steven4064]

Defence looks good pudst. yes bang in the bit about document retrieval, etc.