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

[mystery1]

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

You can negotiate by speaking to them at any time.



What have they sent for evidence in the hearing ?

M1

[HB10]

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

post 425 - this is the witness statement they sent

- they then sent s78 reply and statements showing payments in 2009.

negotiating - but isnt it too late now... the hearing is at 10am Monday.

[mystery1]

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

You have limitation and the judges order in your defence. You also have the default notice and s78 breach.

Revise on these and take copies of any relevant cases with you but only highlight any parts on your own copy.

M1

[HB10]

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

If you have any specific points, can
u pls let melnow. Many thanks.

[littlebert8]

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

Interesting that they are relying on Section 6(3) of the Limitation Act. My reading is that this section applies to overdrafts, not credit cards.

[sloane82]

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

Hi what were the payments for and was it a credit card or hire purchase etc.

[Mineral1]

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

I thought this was in small claims track? I know the posts run like War and Peace...
Assuming this goes to hearing.... Amethyst is correct.... Judge could well ignore any sanction for Aktive's unbelievably slow response to an Unless Order, however, realistically if no sanction is applied then as far as I can see this has dragged on needlessly for a year longer than needed and has put the resultant stress upon the Defendant. Defendant isn't a corporation, he's a human with a life and a family.This needs to be said. The Court handed out an Unless NOT a Perhaps order.... If Judge says what loss you suffered?? How about a year of needless stress and uncertainty... Thats what the legal frameworks there to protect from. If the court doesn't sanction Aktive then as far as I can see it is the green light for poor, slovenly claims needlessly dragged out
My thoughts.:tongue2:

[HB10]

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

Hi what were the payments for and was it a credit card or hire purchase etc.

payments were for cc

[HB10]

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

I thought this was in small claims track? I know the posts run like War and Peace...
Assuming this goes to hearing.... Amethyst is correct.... Judge could well ignore any sanction for Aktive's unbelievably slow response to an Unless Order, however, realistically if no sanction is applied then as far as I can see this has dragged on needlessly for a year longer than needed and has put the resultant stress upon the Defendant. Defendant isn't a corporation, he's a human with a life and a family.This needs to be said. The Court handed out an Unless NOT a Perhaps order.... If Judge says what loss you suffered?? How about a year of needless stress and uncertainty... Thats what the legal frameworks there to protect from. If the court doesn't sanction Aktive then as far as I can see it is the green light for poor, slovenly claims needlessly dragged out
My thoughts.:tongue2:

yeah this is in small claims track

[HB10]

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

You have limitation and the judges order in your defence. You also have the default notice and s78 breach.

Revise on these and take copies of any relevant cases with you but only highlight any parts on your own copy.

M1

- limitation - can you please summarise what you mean on this.

- yes judges order - they do state in their witness statements thta they do not rely on the last payment statement - more so on the default date.

- default notice - what was the issue here apart from the date issue?

- s78 breach - do you mean the late filing? this was filed after the due date for the hearing.... in the s78 letter they state that they have included the cca - but none was attached.

In their witness statement - para 22 and 23 - they state - The claimant contends that they did not enforce the agreement before complying with the Defendant's s78 CCA request.

Confused on this statement - as they only sent s78 info well after the filing date.

[HB10]

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

can anyone help pls? thanks

[mystery1]

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

Limitation. Par 6 defence.

http://www.legislation.gov.uk/ukpga/1980/58

Actions founded on simple contract


5 Time limit for actions founded on simple contract.


An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.
Annotations: Help about Annotation
Modifications etc. (not altering text)
C7
S. 5 extended (11.11.1999 with effect as mentioned in s. 10(2)(3) of the amending Act) by 1999 c. 31, ss. 7(3), 10(2)(3)
6 Special time limit for actions in respect of certain loans.


(1)Subject to subsection (3) below, section 5 of this Act shall not bar the right of action on a contract of loan to which this section applies.


(2)This section applies to any contract of loan which—


(a)does not provide for repayment of the debt on or before a fixed or determinable date; and


(b)does not effectively (whether or not it purports to do so) make the obligation to repay the debt conditional on a demand for repayment made by or on behalf of the creditor or on any other matter;


except where in connection with taking the loan the debtor enters into any collateral obligation to pay the amount of the debt or any part of it (as, for example, by delivering a promissory note as security for the debt) on terms which would exclude the application of this section to the contract of loan if they applied directly to repayment of the debt.
(3)Where a demand in writing for repayment of the debt under a contract of loan to which this section applies is made by or on behalf of the creditor (or, where there are joint creditors, by or on behalf of any one of them) section 5 of this Act shall thereupon apply as if the cause of action to recover the debt had accrued on the date on which the demand was made.



Judges order says last payment is 6 years ago at least.

M1

[mystery1]

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

A good default notice is required.

http://www.legislation.gov.uk/ukpga/...efault-notices

Default notices


87 Need for default notice.


(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—
(a)to terminate the agreement, or
(b)to demand earlier payment of any sum, or
(c)to recover possession of any goods or land, or
(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e)to enforce any security.
(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.
(3)The doing of an act by which a floating charge becomes fixed is not enforcement of a security.
(4)Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.
[F1(5)Subsection (1)(d) does not apply in a case referred to in section 98A(4) (termination or suspension of debtor's right to draw on credit under open-end agreement).]

88 Contents and effect of default notice.


(1)The default notice must be in the prescribed form and specify—
(a)the nature of the alleged breach;
(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;
(c)if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.
(2)A date specified under subsection (1) must not be less than [F214] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F214] days have elapsed.
(3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F214] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.
(4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F3and any other prescribed matters relating to the agreement].
[F4(4A)The default notice must also include a copy of the current default information sheet under section 86A.]
(5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.



Default notice issues discussed from http://www.legalbeagles.info/forums/...605#post492605

http://www.bailii.org/ew/cases/EWHC/...e/2011/B3.html

1. The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it. However, bad notices can often be remedied by the service of good notices and I see no reason why that should not be so in respect of credit agreements.

M1

[mystery1]

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

Under s78 they must supply a "true copy" of the agreement together with a signed statement and an up to date agreement if there have been changes since the account started.

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html


HFO CAPITAL V ROBINSON JUDGEMENT (1) (2).pdf

M1

[HB10]

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

Thanks M1 - greatly apreciated.