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

[HB10]

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

just been going through the docs IND forwarded...

in POC they have written - Notice of assignement was provided to the defendant by the claimant in writing.

in the docs they have not included this, just a 'Form of notice of assignment'

this is a letter type, without my name, address, acc blanked out and no signature.

the only doc included which is their part - Last letter before legal proceedings.

[Amethyst]

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

Hi HB, Not meaning to worry you, just making sure you are prepared for the possibility that the Judge might want to try disposing of the case there and then. Hopefully he won't and will just order they pay your application costs and set a defence filing date. He may want to check that you have a defence before allowing the case to continue. As we haven't seen the agreement you have been sent under 31.14 so don't know whether, if it had been sent under s.78, it is compliant and enforceable, you basically will be arguing non compliance with s.78, and if they argue the agreement has been sent, then the requirement of 78(6) kyboshes that.

Sharon xx

[mystery1]

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

They can't a judge can do what they want.

Print of Robinson just in case and tell a judge if they try and get smart that as s78 has not been complied with enforcement is not allowed under s78(6).

The statement should contain

(a)

the state of the account, and

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

(c)

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.


It should also be signed.

The judge then cannot award against you but of course can strike out the claim.

M1

[HB10]

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

"together with a statement signed by or on behalf of the creditor"

what kind of statement would this be?

I have been preparing for a 'straight forward' hearing - mainly regards the cost due to their delays and for the court to give a date for filing the defence.... can the claimant turn it into anything further? during the phone conversation earlier this week - they were happy to set a defence filing date - just the cost was an issue. Now getting confused and very worried.

[mystery1]

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

s78(6) prevents that

M1

[Amethyst]

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

That's fine.

The hearing is the original hearing for the application for disclosure. Disclosure has been made. The only issue at this hearing is the costs of the original application as the claimants refused to agree to the cost of the application in their consent order, a new date for defence was put forward in the consent order.

Going off previous cases in a similar position (although without the attempt to agree a consent order) the claimants will try to get a judgment on the claim at this hearing (Batman's case on Tuesday v Aktiv Kapital for instance). I do think that possibility should be prepared for to some degree.

We haven't seen the copies of the agreement and terms which were sent under the CPR request and I'd suggest checking those over whether there is a defence against the debt or not and whether to be ready to defend or make an offer if the hearing does turn around to that.

Just worth thinking on so if it comes to it you're not taken off guard.

[mystery1]

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

HFO CAPITAL V ROBINSON JUDGEMENT (1).pdf

Explains some of what i'm saying but again pretty irrelevant to tomorrow.

M1

[ncf355]

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

Indeed

Apologies if my interjection caused calamity!

[mystery1]

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

Yes. As above s78 requires a statement signed by or on behalf of the creditor. 31.14 does not. It is possible that an agreement can comply with either/or but not both. The s78 must be a true copy. The 31.14 needs to be the one mentioned in the the POC. See Phantoms thread if you don't know what i mean or think that's possible.

Anyway this is getting miles off topic. The fact is the chances of being asked about owing the money are slim and it won't come up.

M1

[Amethyst]

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

Will the court differentiate between an agreement copy received in response to a CPR 31.14 that was sent at the same time as a CCA 77-79 request. Is there a requirement for the response to set out that the agreement is supplied in accordance with section 77-79 CCA - I don't think so. A CCA request was sent to the creditor, the agreement was sent to the debtor - should whether it was sent under cover of a CPR request response or a CCA request response matter ?

[mystery1]

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

http://www.legislation.gov.uk/ukpga/1974/39/section/78

78Duty to give information to debtor under running-account credit agreement.

(1)

The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the state of the account, and

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

(c)

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(2)

If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3)

Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4)

Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

[F2(4A)

Regulations may require a statement under subsection (4) to contain also information in the prescribed terms about the consequences of the debtor—

(a)

failing to make payments as required by the agreement; or

(b)

only making payments of a prescribed description in prescribed circumstances.]

(5)

A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6)

If the creditor under an agreement fails to comply with subsection (1)—

(a)

he is not entitled, while the default continues, to enforce the agreement;F3. . .

(b)

F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)

This section does not apply to a non-commercial agreement, and subsections [F4(4) to (5)] do not apply to a small agreement.



M1

[HB10]

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

As far as i'm aware he received these in response to 31.14. I doubt there was a signed statement with that

M1

Yes the docs were received in response to 31.14.

signed statement - which do you mean?

[mystery1]

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

As far as i'm aware he received these in response to 31.14. I doubt there was a signed statement with that

M1

[ncf355]

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

Yeah sent request for s78 - the credit agreement was sent with the docs received recently

M1

Bit confused as HB seems to apply in this post that he DID receive the CCA upon request?

[mystery1]

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

Good luck. I'm working tomorrow so if you ask something i might not be around.

M1