Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

[Foxyflugel]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

I have attached the redacted docs.

[FlamingParrot]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

Have taken a look at the documents and the DN seems to give only just enough time (3 extra days for service) to remedy the breach. Can't see the amount quoted but it should be only the arrears. The application is very recent, August 2007, by which time even MBNA had got their act together it seems. From a s.78 (CCA request perspective), the request has been complied with and even if the odd term wasn't included, being post-April 2007, the court would have discretion to enforce. :ohwell:

NoA looks a little odd, just a logo and no proper letterhead. I'd also have expected it to come from Hillesden.

IMHO there isn't much to argue about but it's late at night and others with a fresh pair of eyes may well find something in the morning.

[nemesis45]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

I have attached the redacted docs.

The DN looks ok I can see £ 7x amount required to remedy, and £5xx as the full outstanding balance, 14 days to remedy is OK.
The NOA is probably a " file" copy. NOA can be sent by the original creditor and/of the debt purchaser, often the debt purchaser is " authorised by the creditor to issue an NOA on it's behalf.

In my opinion the are compliant documents.

nem

[Kafka]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

I looked at these when they were posted and I also thought there was little to challenge. The date of assignment is odd, but I don't see that as being anything substantial to go for. It's a pity this has got as far as court when there are no good grounds to challenge, because pre-court there would have been a chance of cutting a deal for a reduced amount.

In the circumstances, perhaps the best option is to accept the debt and go for the Tomlin Order that FP mentioned above. That would prevent the CCJ being registered, but note the comments about affordability as it all collapses if the payments can't be maintained.

- - - Updated - - -

[FlamingParrot]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

I looked at these when they were posted and I also thought there was little to challenge. The date of assignment is odd, but I don't see that as being anything substantial to go for. It's a pity this has got as far as court when there are no good grounds to challenge, because pre-court there would have been a chance of cutting a deal for a reduced amount.

You know when people say they like their jobs but what they hate the most is having to fire people, well, what I hate the most about this "job" here is having to look at documents posted and say there doesn't appear to be anything to challenge. I was hoping someone would wake up this morning, take a quick look and shout "You're wrong, there's xyz that's not quite right on there." :director:

In the circumstances, perhaps the best option is to accept the debt and go for the Tomlin Order that FP mentioned above. That would prevent the CCJ being registered, but note the comments about affordability as it all collapses if the payments can't be maintained.

Indeed, the order stays proceedings as long as you keep up your side of the bargain but if you can't pay, they can request judgment at that point. For that reason, a well thought out I&E is essential, making sure the offer is affordable in the long term, otherwise it can be a question of avoiding a CCJ now and getting one a few years down the line. A good online budgeting tool can be found here, there's no need to register and you can save it all as a Word document once you're done: https://nedcab.cabmoney.org.uk/quickfs.asp

Tomlin order examples: http://www.legalbeagles.info/forums/...221#post485221


Sorry!

[Foxyflugel]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

Thanks for your help guys.

Unfortunately he was paying regular payments that they accepted in writing and they have still taken him to court.

I will tell him about the I&E and see if he can come to some arrangement to avoid it going to court. Does he have to have a Tomlin Order or can he just make an arrangement directly with them?

If he CAN get some money from family members - is it too late to make an offer of a F&F settlement? - what %age of the debt would normally be offered?

Is there an offer letter template anywhere on here that someone can direct me to?

Is he in order to email them and advise them that the options are a Tomlin Order at very little per month (proven affordability on his I&E) or a F&F settlement? Would this go against him if it went to court and they produced this email?

I know it's a lot of questions but I'm just thinking out loud. :sorry:

Thanks all :tinysmile_twink_t2:

[Kafka]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

A Tomlin Order is sealed by the court and has to be agreed by all parties. It doesn't do away with the need for court involvement, though as its an agreement there is usually no need to hold a hearing and the court sealing the written agreement would do. It's just a different result that doesn't go as far as a registered CCJ and it gives the claimant a fixed agreement knowing that the court will back a CCJ if that defaults.

DCA's vary, but sometimes they will prefer to get a reasonable offer to clear rather than having to wait years for it to come back. They get less, but get it quickly without the need for more work. Whether they will accept this also depends on how strong their case is to win in court, and obviously they will be keener for a quick settlement if their case is shaky. In this case we feel the paperwork is good and they know that too, do it's not clear whether they will still cut a deal. There's no harm in asking and a settlement would also mean that they don't need to pursue the claim or risk future problems if the payments can't be made. There would also be no need for an I&E statement then.

I suggest that if that is a possibility it would be very much in your friend's interests to bury this now and have the claim discontinued. You would need to make it clear that this is a limited offer by borrowing money, otherwise the only repayments would be (perhaps) what has been paid previously. As for % I don't know, but I suspect they would be looking at high % compared with what they might settle for early on, especially if their paperwork is poor. You might try 50% as a negotiating position? See what others think.

[FlamingParrot]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

Unfortunately he was paying regular payments that they accepted in writing and they have still taken him to court.

Sadly those repayment agreements are not legally binding, not even DMPs managed by Stepchange, etc. are legally binding, since they are not sanctioned by a court. Only things like an IVA or a Tomlin order are legally binding.

I will tell him about the I&E and see if he can come to some arrangement to avoid it going to court. Does he have to have a Tomlin Order or can he just make an arrangement directly with them?

If he CAN get some money from family members - is it too late to make an offer of a F&F settlement? - what %age of the debt would normally be offered?

Is there an offer letter template anywhere on here that someone can direct me to?

If you are considering a F&F you should make sure it's watertight and they can neither pursue him for the balance, nor selling it on to someone who will. You may want to look at this thread, where I'd also posted an offer letter: http://www.legalbeagles.info/forums/...stions-success

Is he in order to email them and advise them that the options are a Tomlin Order at very little per month (proven affordability on his I&E) or a F&F settlement? Would this go against him if it went to court and they produced this email?

Any communications regarding settlement should be headed "Without prejudice" so they cannot be used in court. :thumb:

[mystery1]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

Have taken a look at the documents and the DN seems to give only just enough time (3 extra days for service) to remedy the breach. Can't see the amount quoted but it should be only the arrears. The application is very recent, August 2007, by which time even MBNA had got their act together it seems. From a s.78 (CCA request perspective), the request has been complied with and even if the odd term wasn't included, being post-April 2007, the court would have discretion to enforce. :ohwell:

NoA looks a little odd, just a logo and no proper letterhead. I'd also have expected it to come from Hillesden.

IMHO there isn't much to argue about but it's late at night and others with a fresh pair of eyes may well find something in the morning.

7th July 2007 is a Thursday making the deemed service date the following Monday which is 11th

From a s.78 (CCA request perspective), the request has been complied with and even if the odd term wasn't included, being post-April 2007, the court would have discretion to enforce.

All terms from the original must appear on a s78 copy or it's not a true copy.

M1

[FlamingParrot]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

7th July 2007 is a Thursday making the deemed service date the following Monday which is 11th

All terms from the original must appear on a s78 copy or it's not a true copy.

M1

Points taken, however, is that really enough to defend this claim? :decision: Especially when you consider some judge's decisions with regards to what is acceptable to satisfy s.78, not to mention Frost!

[mystery1]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

Points taken, however, is that really enough to defend this claim? :decision: Especially when you consider some judge's decisions with regards to what is acceptable to satisfy s.78, not to mention Frost!

I should've said 2011.

I would say yes.

http://www.bailii.org/cgi-bin/markup...method=boolean

"Nor is there merit in the submission that Mr Grace had escaped enforcement on technical grounds. The requirements of the CCA for which unenforceability is the sanction are part of a structure laid down by Parliament for the protection of consumers and the regulation of the consumer credit market. Although they may be technical in their application, and the consequences for non-compliance sometimes draconian, they are not mere technicalities in the sense that Miss Urell described them. In the present case for example the discrepancies in the copy agreement sent to Mr Grace were about the interest rate and the APR under the hire purchase agreement. There is nothing merely technical in the statutory requirement that these matters be clearly and accurately set out for the consumer."

http://www.bailii.org/cgi-bin/markup...method=boolean



The notice of enforcement


"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."



Obviously point 1 is key and although you have the correct side of the argument, you cannot account for bias on moral grounds.

M1

[FlamingParrot]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

I should've said 2011.

I would say yes.

http://www.bailii.org/cgi-bin/markup...method=boolean

"Nor is there merit in the submission that Mr Grace had escaped enforcement on technical grounds. The requirements of the CCA for which unenforceability is the sanction are part of a structure laid down by Parliament for the protection of consumers and the regulation of the consumer credit market. Although they may be technical in their application, and the consequences for non-compliance sometimes draconian, they are not mere technicalities in the sense that Miss Urell described them. In the present case for example the discrepancies in the copy agreement sent to Mr Grace were about the interest rate and the APR under the hire purchase agreement. There is nothing merely technical in the statutory requirement that these matters be clearly and accurately set out for the consumer."

I don't think anyone has mentioned discrepancies in this case,. :noidea: I think it was just me who said something like: "even if the odd term had been missing, this wouldn't be subject to s.127(3)..." The OP seems to have said the documents looked OK. If there were discrepancies between what the alleged agreement says and what they were actually charged, only they could spot them as we haven't got the statements.

http://www.bailii.org/cgi-bin/markup...method=boolean

The notice of enforcement

"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."

Obviously point 1 is key and although you have the correct side of the argument, you cannot account for bias on moral grounds.

M1

...and we are really cutting it too close here with just a Sunday standing in between a good and a 'bad' DN... :mmph:

[mystery1]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

The quote from Grace is what i suggest everyone in CCA case quotes to dissuade judges from thinking about their moral high point and thinking about applying the law because that's what parliament intended to give consumers protection from scumbag practices.

I'd say that whether a default notice complies on time allowed is a matter of fact. It either allows enough or it doesn't. Give the consumer protection issues i say it's not up to a judge to say "it's near enough you chancing git". As a matter of fact 14 clear days were not given.

M1

[Foxyflugel]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

Thanks for the input guys..nice to see you pop up on my thread Mystery! !

On the court claim for it states that all rights etc were assigned to Hillesden on 11.11.11 ..There is no date on the copy of the assignment notice..even if it's a file copy..should it still not be dated? Also..The transfer agreement signed by both parties is dated 27.7.11?

Does the default notice not allow enough time to remedy then? This is not necessarily to defend but just to maybe sway them to accepting a f&f or Tomlin order.

My MBNA paperwork all looked okay..It was pre April 07 though...but I just had a gut feeling about it. Legal persons looked over it and said it appeared to be all in order, however, I pursued it with another legal person and won as they discontinued and paid all costs. From memory, mine was on the assignment chain amongst a couple of other things..also the DN.

Foxy

[mystery1]

Re: Court Claim - Hillesden Securities Ltd / MBNA - 21-5-2015

On the court claim for it states that all rights etc were assigned to Hillesden on 11.11.11 ..There is no date on the copy of the assignment notice..even if it's a file copy..should it still not be dated?

Van Lynn Developments Ltd v Pelias Construction Co Ltd [1969] 1 QB 607,.pdf

I think it would. I think the correct Interpretation of this statute was given by Mr, Justice Atkin in the case of Penney. Gaequet. and Metcalfe T, Conklin (1913 3 £.B. 177), It is quite plain from his judgment that no formal requirements are required for a notice of assignment, It is sufficient if it "brings to the notice of the debtor with reasonable certainty the fact that the desi does assign the debt due from the debtor so as to bind the debt in his hands and prevent him from paying the debt to the original creditor". It seems to me to be unnecessary that it should give the date of the assignment so long as it makes it plain that there has in fact been an assignment so that the debtor knows to whom he has to pay the debt in the future

If a date is there it must be correct. The amount must also be correct.

Does the default notice not allow enough time to remedy then?

No. It is deemed served on the 2nd working day after posting. It's dated on a Thursday and deemed served on the following Monday. Obviously there is nothing to say these dates are correct as that only goes on the date on the default notice so it may have been even later. The presumption of service is also rebuttable but unless you know and can evidence a later receipt of it the deemed service date will usually be what is accepted.

M1