MBNA > Arrow Global > Yuill and Kyle - SCOTLAND

[stressball]

Re: MBNA > Arrow Global > Yuill and Kyle

Amethyst, cheers for the Credit Issues info - I'm aware of all that - now! The ruling of Judge Waksman that they can use a reconstituted agreement is what kicked Credit Issues in the nuts... Of course, I'd gone down this road before this ruling and was a little deflated at the news... That said, THIS particular agreement was found to be 'true copy' in 2010, BUT was considered unenforceable due to mis-prescribed terms to do with the APR. And the reconstituted copy must contain all the terms and variations of terms from the outset - or so I believe?

And, yeah, I paid a small fortune to Credit Issues - did it thru a friend who had bought a regional directorship of the company - turned out she got shafted - shocker, huh!

Anyway, I am going to post up court writ next, but will need to nip home to scan the MBNA stuff and post this up - will do ASAP...

[stressball]

Re: MBNA > Arrow Global > Yuill and Kyle - SCOTLAND

SO, here are the documents, thus far:

*original writ - they are trying to recover, just shy of £10K
the debt is now owned by Arrow Global - sold to them from MBNA

*follow up letter from Y+K - basically an attempt to create dialogue

*the CCA as sent by MBNA via SAR - this was a federation of small business offer - so would have been a form,
sent to them, and this was the completed form they sent to me for the signature

*copy of page from SAR showing the change of 'interest' to 'finance charge' <---?? Why??


ALSO - some bits of info:

*I sent the CCA request to Y+K almost 90 days ago - no reply/no acknowledgement.
*I have POD signature showing they received the letter on 30.09.14

*Y+K refer to the CCA in the writ and say they will produce this in court

*I am disputing the debt on the grounds that there is no proper CCA - why did they not respond to the CCA request

*If the CCA is produced, I want to check it's validity as to whether it is laid out correctly, with respect to the prescribed terms (APR)

*A lawyer has told me that they can argue 'unjust enrichment' - and the CCA argument does not come into it
THOUGHTS??

*After default, MBNA did not regularly send out statements - I believe this is a requirement?
Or is it just best practice...?

*I HAVE UNTIL 1.12.14 TO PROPERLY LODGE DEFENCES!!
I HAVE NO IDEA HOW TO FORMAT AND REPLY TO THE VARIOUS CONDESCENDENCE

I am HOPING that by lodging defences that Y+K will apply to have the case sisted - until such times as they can produce the CCA - but without this, I am lead to believe, that they have no case in court and cannot proceed??

Hope you guys can work some magic to help me PLEASE!

[stressball]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

UPDATE = H E L P!!

I've spoken with a lawyer, who referred me to a pro bono solicitor - meeting with him Monday. But that is the day defences are due to be lodged. He won't say what he will do until he meets with me, but is suggesting that he could call Y+K and tell them to feck off, or ask the court for more time etc...

In the meantime, is there anything I should do that helps me defend this...???
REMEMBER, I'M ALMOST AT 90 DAYS FROM REQUESTING THE CCA FROM Y+K - NO REPLY - AND THIS IS THE DOCUMENT THAT THEY WILL RELY ON TO ENFORCE THE DEBT, IN THE SAME WAY THAT IT'S ABSENCE OR FLAWED PRESCRIBED TERMS WILL BE MY DEFENCE...

Will they win by default if I don't lodge defences on the 1st Dec?? Or can we argue that it's because they didn't supply the info needed for the defence?


What should I do??

[mystery1]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

I suggest the lawyer "unjust enrichment" drinks too much herbal tea.


Was there a copy of your agreement, default notice, notice of assignment etc in the SAR ?

Do you have your own copies ?

So far the only issue i've seen that you've shown for a defence is the s78 request which has not been responded to.

M1

[stressball]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

Mystery,

if you see the attachments #17 you will see what MBNA supplied by way of the agreement. Nothing from Y+K - now at 87 days since they signed for the CCA request by Special delivery.

Don't have the stuff to hand, but don't think they supplied a copy of the default notice or the notice of assignment. I believe I had the default notice, but I do not recall receiving the letter of assignment. I'll be able to confirm this tomorrow.

YES - my defence is simply that they cannot enforce the debt without either a true copy of the agreement, or a properly reconstituted one. From what I've read on the consumer forums, a great deal of people have had cases sisted, then eventually dropped, simply on the failure of the current owner of the debt to provide the CCA. Furthermore, in 2010, this agreement was considered to be a true copy, but the rate of interest was incorrectly stated and therefore it was outside of the tolerance level set under the Consumer Credit Act. This is a breach of schedule 6. By failing the contain all of the Prescribed Terms the agreement is found to be irredeemably unenforceable.

Is this not enough of a defence?

In 2010, I (or rather credit issues on my behalf, and the transcripts of which were in the SAR) raised a complaint against MBNA regarding the flawed CCA, and whilst in dispute, they are not supposed to proceed with any action. The dispute hasn't been resolved, as such, so even though MBNA didn't raise an action themselves, and have since sold the debt to Arrow and Global, surely they are bound by the same rules - and hence, if they do not cough up the agreement, they cannot continue with any action?

This is the position, as far as I am lead to believe:

t's a complete defence. section 127(3) of the Consumer Credit Act precludes the court from granting an enforcement order (decree)
if either the agreement can not be produced or if the agreement does not contain all the prescribed terms as required by the Act.

So, simply put, if they don't produce the agreement or the agreement isn't laid out correctly, then the sheriff has no other option than to throw the case out...?

Anyone else pitch in with their experiences?

[mystery1]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

YES - my defence is simply that they cannot enforce the debt without either a true copy of the agreement, or a properly reconstituted one. From what I've read on the consumer forums, a great deal of people have had cases sisted, then eventually dropped, simply on the failure of the current owner of the debt to provide the CCA. Furthermore, in 2010, this agreement was considered to be a true copy, but the rate of interest was incorrectly stated and therefore it was outside of the tolerance level set under the Consumer Credit Act. This is a breach of schedule 6. By failing the contain all of the Prescribed Terms the agreement is found to be irredeemably unenforceable.

Is this not enough of a defence?

Potentially, yes. Best cover as many points as possible though, providing the points are valid.


"In 2010, I (or rather credit issues on my behalf, and the transcripts of which were in the SAR) raised a complaint against MBNA regarding the flawed CCA, and whilst in dispute, they are not supposed to proceed with any action. The dispute hasn't been resolved, as such, so even though MBNA didn't raise an action themselves, and have since sold the debt to Arrow and Global, surely they are bound by the same rules - and hence, if they do not cough up the agreement, they cannot continue with any action?"

Thing is it's not really a dispute. It's a legal argument. A dispute would be along the lines of the amount owed or similar.

t's a complete defence. section 127(3) of the Consumer Credit Act precludes the court from granting an enforcement order (decree)
if either the agreement can not be produced or if the agreement does not contain all the prescribed terms as required by the Act.

If the agreement isn't produced, as far as s127(3) is concerned, it only matters if you assert an error. http://www.bailii.org/ew/cases/Misc/2012/19.html

"18. So moving to the factual issue itself, I start briefly with a matter upon which I have received some submissions, namely the burden of proof. In submissions the defendant conceded that there was a prima facia case established by the claimant that there was a credit agreement in place and therefore the evidential burden of proving the index factual issue is upon the claimant. I was referred to a first instance case in the County Court of HFO Services Limited v Kirit Patel. It was decided by His Honour Judge Platt on 20th May 2009. Of course, I accept that this is a first instance decision and is therefore only persuasive. Nevertheless, I found the judgment of His Honour Judge Platt to be persuasive in that way and I would wish to take the same approach.19. His Honour Judge Platt said at paragraph 19:
-�Therefore, in my judgment, when the defendant wishes to rely on section 65, several consequences flow. First, it is not sufficient for him simply to allege that the agreement is not properly executed. He must specify the particular breach or breaches of the Regulation on which he relies. The burden of proving that the agreement has been properly executed then rests with the claimant. It is his obligation to put before the Court evidence which he considers sufficient to satisfy the Court on this issue."


The Sheriff has little choice, that is correct but bear in mind he may not know this and you need to let him know why he has no choice and it must be contained in the pleadings.

M1

[stressball]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

M1, et al - good morning...

so, I have to lodge defences on Monday, at the latest. I have a meeting with a pro bono lawyer on Monday at noon - couldn't see me sooner. He says he won't have time to lodge defences on Monday, but may apply for a time extension, or approach yuill+ kyle to negotiate etc... IS THIS WISE? Should I draft up answers to the condescendence (CAN SOMEONE HELP WITH THAT? - RE: THE WRIT DOCUMENTS ABOVE 17) - and have these ready for the lawyer, so he can properly format for me? I can then lodge them with the court myself?

Or, should I go with what this lawyer is planning - he does seem to have some experience of Y+K, Nolans, and all the other dodgy lawyers that are involved in debt collection - but I guess I'm looking for a 'second opinion' here, as everyone, previously, had advised that you must make sure papers are lodged in time and correctly formatted, or Y+K will get a decree by default.

Really need to nail this today, if at all possible, so please help! Cheers in advance...

[mystery1]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

Ignore procedure and pleadings for the moment.

What is your defence ?

Dodgy cca? Non reply ? Dodgy default ? No yearly statements ?

M1

[stressball]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

My reasons for defence:

•Non reply to CCA request - almost at 90 days. Somewhat hoping that it is not found
•If CCA is supplied, I've reason to believe it is flawed in the way that the APR is set out in the prescribed terms
•Hunting for the default tonight - how will I know it's dodgy?
•I can't be certain, but I'm pretty sure they never sent yearly statements
•SAR request only provided statements as far back as 2006 - account was opened in 2001


THINGS I NEED HELP WITH...?

•the fact that 'interest' changed to 'finance charge' - SEE SCAN FROM SAR PAGE
•prior to this, why were there 2 interest charges and then 2 finance charges to replace them?
Possibly, this may be due to a balance transfer deal/preferential rate deal

What should be my next steps M1...?

[mystery1]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

Yearly statements only matter from 2008 onwards.

APR is not a prescribed term. Interest rate is a prescribed term.

Compare the default to the rules http://www.legislation.gov.uk/uksi/1983/1561/made note that 4 c is now 14 days.

M1

[mystery1]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

•the fact that 'interest' changed to 'finance charge' - SEE SCAN FROM SAR PAGE
•prior to this, why were there 2 interest charges and then 2 finance charges to replace them?
Possibly, this may be due to a balance transfer deal/preferential rate deal


The fact they've renamed interest to finance charge means nothing. 2 of them due to 2 different rates means you either had preferential rates for certain purchases or a balance transfer,cash advance or cheque or something along these lines. Unlikely to mean anything either.


So far all you have is s78 non compliance which is curable if they can.

If you can assert there was a fundamental flaw when you signed up to the agreement then that is worth doing but if all you are saying is that in a previous copy sent to you via SAR or s78 i'd say no more than i sent a s78 request and they haven't complied.

http://www.bailii.org/ew/cases/Misc/2012/19.html

What about assignment, do you have any info on that ?

M1

[stressball]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

M1,

I've gone thru all the documents I have from various DCAs - for this card, and others - and no sign of a default notice or a letter of assignment. I noticed on the covering letter from MBNA, from the SAR request, that they say copies of default notices are not kept, so they could not supply a copy. Yet, on the writ, Y+K say they will produce this and the CCA in court, if the case is defended. Any relevance?

Attached is my Defences - someone gave me a more convoluted version of this, but I met with a pro bono lawyer yesterday, whose not an expert in consumer law, by any means, and he recommended keeping it simple. Also, me doing it as a party litigant may allow the court to be a wee tad more tolerant, if this isn't perfect. I also didn't mention expenses, as thought this was pushing it? But others have taken this angle, and that seems to have scared off the pursuers?

I could have gone on about the fact the debt was in dispute with MBNA since 2009, when they first failed to provide the CCA, but felt it wasn't relevant at this stage. Might it be, though, if no CCA is forthcoming, would MBNA have been able to sell the debt without having this?

I tried to lodge these defences yesterday - but the local court was closed Friday and yesterday, with yesterday being my last day to lodge defences. As this has disadvantaged me, will the court accept these defences this morning instead?

[nemesis45]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

M1,

I've gone thru all the documents I have from various DCAs - for this card, and others - and no sign of a default notice or a letter of assignment. I noticed on the covering letter from MBNA, from the SAR request, that they say copies of default notices are not kept, so they could not supply a copy. Yet, on the writ, Y+K say they will produce this and the CCA in court, if the case is defended. Any relevance?

Attached is my Defences - someone gave me a more convoluted version of this, but I met with a pro bono lawyer yesterday, whose not an expert in consumer law, by any means, and he recommended keeping it simple. Also, me doing it as a party litigant may allow the court to be a wee tad more tolerant, if this isn't perfect. I also didn't mention expenses, as thought this was pushing it? But others have taken this angle, and that seems to have scared off the pursuers?

I could have gone on about the fact the debt was in dispute with MBNA since 2009, when they first failed to provide the CCA, but felt it wasn't relevant at this stage. Might it be, though, if no CCA is forthcoming, would MBNA have been able to sell the debt without having this?

I tried to lodge these defences yesterday - but the local court was closed Friday and yesterday, with yesterday being my last day to lodge defences. As this has disadvantaged me, will the court accept these defences this morning instead?

The only documents mentioned in the claim appear to be the DN and an agreement.
It is correct that DNs are not routinely archived all a creditor need to do is make a note that a DN was sent on a specific date this is placed on the customers file, the creditor can rely upon this notation.
One small point the CCA request is 12 + 2 working days (no weekends or bank hols counted)

I suspect a reconstituted DN may be produced ( a blank generic form),
This may also apply to the " agreement " a recon may be supplied but may only satisfy the CCA request and may well fail in court.

Have made a CPR 31.14 request for the documents mentioned in the POC?

[stressball]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

Have made a CPR 31.14 request for the documents mentioned in the POC?

Cheers Nemesis - have no idea what this means though!?

[nemesis45]

Re: MBNA &gt; Arrow Global &gt; Yuill and Kyle - SCOTLAND

Cheers Nemesis - have no idea what this means though!?

Civil Procedure Rules " conduct" and processes of claims. CPR31.4 is specifically about documents mentioned in the " Particulars 9f A Claim"

It is sent to the solicitor acting for the claimant and request copies of All documents mentioned in the POC.

How ever if the claim is made via the Northampton CC Business centre documents cannot be attached, and the sols may decline to comply ( an excuse often used when documents are not to hand).

Even so it is worth doing, there is No fee for this.