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

[FlamingParrot]

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

I find it very strange that MBNA would have issued a DN 3 years after defaulting! :noidea: Recording a default on your credit file years late is not that unusual, even then, this usually happens either when you were on a DMP or some sort of payment arrangement or when the debt gets sold on and the debt purchaser records a fresh default. But issuing a DN 3 years later is very unusual. MBNA issued a DN a couple of months or so after I stopped paying.

As far as the limitation period is concerned, it would be 6 years from the cause of action.:clock: With a credit card, you are supposed to pay at least the minimum payment amount at a certain date every month. MBNA would have no CoA right after the last payment since they would have no way of knowing no further payments would be made, but they would a few days (or weeks at the most), later. It would be different if this was an overdraft where the bank can wait months or even years before recalling it. :confused2: :confused2:

[HB10]

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

Does anything at all show on your credit file btw ?

there is a default under Aktiv kapital - 31 dec 2009.

[HB10]

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

whats the situation with this now? the judge asked for statement of last payment at the hearing - they can not comply to the order.....this was the single point the judge focused on

[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.

[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

[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

[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?

[mystery1]

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

This claim hasn't been allocated yet has it ?

M1

[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

[Amethyst]

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

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

[Guest]

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=

[HB10]

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

Received the 80 pounds cheque from IND this morning.

[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

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

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.