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

[Foxyflugel]

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

Hi everyone and thanks again for all your replies.

Tomorrow is the 28 day deadline when it will be stayed or pursued. Does he need to send in an amended defence so they don't get a default judgement? The defence date was extended 28 days whilst they sent the docs from the CPR 31.14 - his first defence was stating that they hadn't complied with his request.

So, if the DN did not allow enough time to remedy would this be enough to defend on? or, I think I have read somewhere, this can be fixed by them. They sent him the termination letter dated 7th October.

He is on Income Support so would be looking at around £1 month if he was to consent to a Tomlin Order - or he thinks a relative may be able to come up with £1k if they will accept this as a f&f settlement.

From experience, what chance has he got of them accepting it if he suggests the f&f? It will take a lot longer at £1 month for them to get £1k!! Do they review the Tomlin Order periodically after it starts?

Mystery - would you mind looking at the paperwork if I email it to you?

Can anyone give me an idea of how I should word the email saying that the DN is faulty and will they accept f&f or Tomlin Order?

Has anyone got a paragraph from a defence regarding the faulty DN that I could use please?

Thanks again for all your help guys.

Foxy :tinysmile_twink_t2::tinysmile_twink_t2:

[Foxyflugel]

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

Hi everyone

Can anyone give me some pointers on including the faulty DN in the defence please? Also, I have noticed that all the correspondence from DLC etc says creditor name is Hillesden Securities formerly MBNA - does this make a difference??

Thanks

Foxy :tinysmile_twink_t2:

[nemesis45]

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

[QUOTE=Foxyflugel;568439]Hi everyone

Can anyone give me some pointers on including the faulty DN in the defence please? Also, I have noticed that all the correspondence from DLC etc says creditor name is Hillesden Securities formerly MBNA - does this make a difference??
Responding to your PM Coming in late to your thread so I'll need to read back.

For your question here, Hillesden Securities is a debt purchaser and it has bought the debt from MBNA. DLC is the debt collection arm of Hillesden.
As far as I can see, the DN was faulty in not allowing enough time to remedy.
There has been a 28 da stay for the claimant to disclose documents? Or for a defence to be filed.

M1 has given excellent advice here and I don't want to confuse what's been said.
[MENTION=5354]mystery1[/MENTION] can you look in here please.

nem

[FlamingParrot]

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

Hi everyone and thanks again for all your replies.

Tomorrow is the 28 day deadline when it will be stayed or pursued. Does he need to send in an amended defence so they don't get a default judgement? The defence date was extended 28 days whilst they sent the docs from the CPR 31.14 - his first defence was stating that they hadn't complied with his request.

Looks like we are getting a little confused with the dates here, I've just gone back to double-check and you posted a few days ago that a defence had already been submitted:

Just a quick update and help needed please.

He put a defence in by the agreed extended deadline as they had failed to send him the docs requested CCA etc.

They have now sent him these docs. The 28 days is up on Monday 17th - for it to be stayed or pursued by the creditor.

The 28 day deadline is for the CLAIMANT to respond to the court stating whether they wish to proceed or else the case will be stayed. You will only be informed if they decide to proceed. There is no action required on your part either way, not until you hear from the court (or not as the case may be) and I'd leave it a few days. :ranger:

With regards to amending your defence, that would require an application, you may consider amending it but I'd wait to hear if they decide to proceed with the claim before going further. As above, the deadline is for the CLAIMANT, not for you guys to do anything in a hurry. :thumb:

I hope that puts your mind at ease. :grin:

[Foxyflugel]

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

Thanks a lot for your replies guys.

The initial defence was put in saying that they had not complied with the CPR 31.14. The extension was then agreed which took the 28 days to today.

Think I've panicked and dropped a booboo. I have amended his defence to include the defective default notice and told him to email it to the court. Will they just ignore it??

Can't believe I've done that - it's all coming back to me now - although it has been quite a while since I have been at this stage.

So he just waits now to see their next move. If they proceed does he just get sent a court date? Then the AQ?

Thanks again guys for your continued advice and support.

Foxy :tinysmile_twink_t2:

[mystery1]

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

Some will ignore and others will not as the claimant didn't agree and the court didn't give permission. You could be cheeky and ask them to agree to an amended defence based on their tardy disclosure.

Unfortunately i've been out all day and will be out from 8 ish tomorrow so don't have time to look. A faulty DN might be fixable by sending a new DN but if the arrears were cleared the court action would have to be discontinued.

M1

[FlamingParrot]

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

Thanks a lot for your replies guys.

The initial defence was put in saying that they had not complied with the CPR 31.14. The extension was then agreed which took the 28 days to today.

Think I've panicked and dropped a booboo. I have amended his defence to include the defective default notice and told him to email it to the court. Will they just ignore it??

Is there any chance you could tells us what you wrote on the amended defence?

Can't believe I've done that - it's all coming back to me now - although it has been quite a while since I have been at this stage.

So he just waits now to see their next move. If they proceed does he just get sent a court date? Then the AQ?

Thanks again guys for your continued advice and support.

Foxy :tinysmile_twink_t2:

It is possible that the defence won't be admitted because it was submitted without agreement. If they tell the court they intend to proceed with the claim you will receive the AQ before a court date is scheduled, in fact the questionnaire will ask for any dates when he won't be available, once the questionnaires have been returned the date will be set.

[Foxyflugel]

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

Yes FP - I just added this line to it.

The Default Notice provided under the aforementioned request and allegedly served on the Defendant under sections 87 and 88 of the Consumer Credit Act 1974 did not provide the minimum statutory period of 14 days following the date of service to rectify the breach.

Mystery - If he pays the arrears stated on the defective default notice do they have to discontinue then? How would this work?

I don't know if he is able to do this - but if he can - would he pay the money and then advise them about discontinuing? or would it have to go to court to get discontinued?

Thanks

Foxy

[nemesis45]

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

Yes FP - I just added this line to it.

The Default Notice provided under the aforementioned request and allegedly served on the Defendant under sections 87 and 88 of the Consumer Credit Act 1974 did not provide the minimum statutory period of 14 days following the date of service to rectify the breach.

Mystery - If he pays the arrears stated on the defective default notice do they have to discontinue then? How would this work?

I don't know if he is able to do this - but if he can - would he pay the money and then advise them about discontinuing? or would it have to go to court to get discontinued?

Thanks

Foxy

As M1 said IF a complaint DN was to be issued and the arrears applicable were to be paid the claim should be discontinued.

A judge may allow a new compliant DN to be produced if the defective DN is produced as evidence in the defence.

nem

[FlamingParrot]

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

Yes FP - I just added this line to it.

The Default Notice provided under the aforementioned request and allegedly served on the Defendant under sections 87 and 88 of the Consumer Credit Act 1974 did not provide the minimum statutory period of 14 days following the date of service to rectify the breach.

Mystery - If he pays the arrears stated on the defective default notice do they have to discontinue then? How would this work?

I don't know if he is able to do this - but if he can - would he pay the money and then advise them about discontinuing? or would it have to go to court to get discontinued?

A few assumptions are being made here which we cannot be certain of. First of all, the amended defence may not be accepted since it was submitted without agreement from the other side nor permission from the court. :mmph:

With regards to paying the arrears, we are working on the assumption that 1) the amended defence is accepted and 2) the breach is rectified by issuing a new DN. We can't be certain that either will happen, so you guys will just have to wait for their next move before looking at this possibility. :ranger:

As it stands now, paying the arrears stated on the old DN wouldn't mean anything, a new DN would have to be issued (upon acceptance of the amended defence) for that to be an option.

[mystery1]

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

Flying visit.

89 Compliance with default notice.


If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or (c) the breach shall be treated as not having occurred.


They'd have a devils own job with that IF a new DN was issued and IF it was complied with.

Don't forget assumption of delivery was calculated using 1st class and Mrs Worsley (sp?) in one case conceeded they do not use first class. (can't remember the exact name of the case and no time to look, one of Pauls)

M1

[mystery1]

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

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

On 3 October 2008 MBNA sent a default notice (TB4/1502). Paragraph 12 of Mrs Worden's statement dated 26 July 2010 reads as follows:
Exhibited to this Witness Statement at "NW3" is a copy of the default notice which was served by MBNA on the Claimant ("the Default Notice"). The Default Notice was dated 3 October 2008 and, in accordance with MBNA's standard procedure was despatched to the Claimant on 3 October 2008 by way of UK Mail's Business Class service which guarantees delivery within two days of despatch, including Saturdays. It is not, and was not in October 2008, the standard practice of MBNA to send default notices to customers by second class post. There is no reason why the Default Notice sent to the Claimant in this case would have been sent by second class post contrary to MBNA's standard procedures.
Investigation by the Claimant who knows about such things revealed that the notice was sent by second class post. Mrs Worden's own investigations revealed that it was "possible" that this was so. Her manner indicated that this was an elegant way of conceding the point as in my view she had to. Thus subsequent investigation contradicted a hitherto firmly held position of the Defendant that the notice had gone by a suitable post and was served in time. It was not. It was issued and sent by second class post on 3 October 2008 arriving (as was to be expected) on 9 October 2008 and was stated to expire on 21 October 2008. Given the date of delivery, the expiry date should have been 23 October 2008. The notice was bad.



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.



M1

[Foxyflugel]

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

Thanks M1 for taking the time to post the case law.

So, as I understand it - he would have to apply to amend his defence and the judge and the claimant both agree to it? (he is on jobseekers so will get fee assistance). If this is successful they then need to serve another DN and then this means that he only has to pay the arrears amount on the bad one and then they cannot continue with the claim? I know it is probably not as cut and dried as this - but is that the general idea?

Does the amended defence have to be accepted for this to happen? or if they serve a new DN and he pays off the arrears on the defective one does it still apply?

Thanks everyone for your invaluable input.

Foxy :tinysmile_twink_t2::tinysmile_twink_t2:

[mystery1]

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

Amendments to a defence are covered in cpr 17

https://www.justice.gov.uk/courts/pr...l/rules/part17

17.1

(2) If his statement of case has been served, a party may amend it only –
(a) with the written consent of all the other parties; or
(b) with the permission of the court.

Power of court to disallow amendments made without permission
17.2
(1) If a party has amended his statement of case where permission of the court was not required, the court may disallow the amendment.
(2) A party may apply to the court for an order under paragraph (1) within 14 days of service of a copy of the amended statement of case on him.

https://www.justice.gov.uk/courts/pr...rt17/pd_part17



I would seek the written consent from them 1st.




As for the DN, the old one is history. Done and dusted. It's is BAD as far as enforcement is concerned but for payment it is way to late. It is any potential new DN that could be paid but the amount asked for will be significantly higher. If paid however the claimant has no cause of action as the CCA states clearly that if a DN is cleared then it should be treated as if no breach had occurred.




M1