Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Having thought more about it, i might be inclined to utilise cpr 31.21
Consequence of failure to disclose documents or permit inspection

31.21 A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

I would probably suggest a 2nd application and invite the judge to consider 31.21.

M1

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

To be honest i'm struggling a bit here.

They have failed to do what they were ordered to do but no sanction was mentioned. Normally an application for an unless order would be the way to go. The problem is that the default notice shows me that the debt isn't statute barred. Had you not paid for 3 years the arrears would be much larger.

So you could apply to reinforce what the judge said or you could try to defend or settle.

It's tricky.

As for the witness statement, she clearly doesn't know much because the rules she is speaking about don't apply unless it's a trial.

Is the supplied default notice something you take issue with or does it have an element of truth to it ?

M1

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Hi all,

Been away on work last few days.

Would appreciate help on the next steps.

M1 you mentioned the terms of the order - anything to gauge from that?

[Amethyst]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

So two options as I see it, respond to their witness statement by filing your response, or apply for a strike out based on non compliance with the order.

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Yeah, just the cheque and no statement. Well in their witness statement they mentioned they do not have records of payments.

[Amethyst]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Blimey. No statement showing last payment then?

Guess they are just relying on their witness statement then.

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Received the 80 pounds cheque from IND this morning.

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Section 6 of the SOL applies to loans. A loan is repayable under common law on issuance(and the sol would run form that date), however section 6 modifies this and says that the loan is due on demand, unless there is a facility within a contract that says otherwise.
Generally this sections applied to overdrafts where there is no formal agreement.

It is not usually said to apply to credit cards, although similarly running account credit, they are subject to a formal agreement usually with termination details, which encompass the method of recalling sums due under the agreement.

The situation regarding the commencement of the SOL period for section 5 is; that it commences when the creditor is entitled to recall the suns due, this is usually after a couple of missed payments, or when the account is considered to be in default, usually there is a term in the agreement which will specify this.

A complication is that fairly recent case law has raised the possibility that the start date for the SOL can be further delayed until the issuance of a formal section 87 notice, because, until this is issued the creditor is not entitled to demand full payment(BMW vs Hart)

The counter argument to this is that the cause of action is the contractual term and the requirements of the act are just a "procedural bar" and have no effect on the COA.(there is case law for this position also, although some would say not entirely convincing)

The resetting of the bar by a payment comes under section 29(acknowledgment)

http://www.legalbeagles.info/forums/...ion&highlight=

[Amethyst]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

Well, it's past 4pm....wonder if there was any post.

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

This claim hasn't been allocated yet has it ?

M1

Not allocated

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

This claim hasn't been allocated yet has it ?

M1

[ncf355]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

I read that as the judge has placed no sanction on them for non compliance (he orders the supply, but fails to state what the consequence will be for non compliance) so the only way is to make an application for the claim to be struck out as they have failed to comply and hope the judge agrees with this?

[HB10]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

The terms of the order are vital as to what happens next. Can you scan it or type it up word for word.

M1

Hi, ive attached a scanned copy. thanks

[mystery1]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

The terms of the order are vital as to what happens next. Can you scan it or type it up word for word.

M1

[Amethyst]

Re: Please help - very worried. Ref: IND/Hegarty LLP/Aktiv Kapital/MBNA

It would be different if this was an overdraft where the bank can wait months or even years before recalling it. :confused2: :confused2:

Just out of interest for the purposes of 6(2) LA - an overdraft IS repayable on demand.


Aktiv Kapital are not the original creditor - what matters is when MBNA defaulted the account (IF 6(3) DID HAVE EFFECT ON CREDIT CARD LENDING)

so basically my argument is s 6(2) kyboshes their argument of s 6(3) so s 5 applies, and as s 5 applies the cause of action would actually have been approx 3 months after last payment so it is from then the six years runs. If you check the terms they sent you with the copy agreement etc there should be relevant bits about what happens if you miss a payment and when they will default you.

Anyone feel free to 'argue' back btw.