Court Claim - MBNA/Link Finance

**nemesis45** · 22nd November 2015, 16:43:PM

Re: Court Claim - MBNA/Link Finance

Sound like you are trying to reply on a thread all ready open, you will see at the end of the text { QUOTE}
your post must be below that.

**StreetCred** · 22nd November 2015, 17:01:PM

Re: Court Claim - MBNA/Link Finance

Sorry Nemesis.... not sure what I've done wrong - I thought I was starting a new thread.

Where should I be posting this?

Thanks...

**nemesis45** · 22nd November 2015, 17:02:PM

Re: Court Claim - MBNA/Link Finance

Originally posted by StreetCred View Post

Hi,

First of all, I have tried following procedures where I have filled the form under "Received a Court Claim", but once filled and submitted, I get "The message you have entered is too short. Please lengthen your message to at least 4 characters" - and clearly I've put in more than 4 characters but I continually get the same error and won't go forwards... so here I am as last resort.

Anyway, I want to say that this is an excellent site with lots of very useful information and lots of kind and helpful people - so thanks in advance for any help with my pretty much yet another "run of the mill" case.

I have read a lot of other similar problems, so I'm not asking for help because I've not read up, but because each case is slightly different and I have now specific questions to which I've not yet found answers to - but forgive me if any of these have been answered, as I've not seen such replies.

Particulars and background information -

I got an MBNA credit card back in 1999 and defaulted in 2005, owing £5.5K. Subsequently (in 2005), the debt was passed to Link (claimant). The acting solicitors (who are part of Link by the way) are Kearns.

Since 2005 and up until January 2015 I have paid £1/month to Link uninterruptedly. In January of this year I stopped paying altogether and now I receive this Claim Form from CCBC.

Link now want £5.5K plus interest at 8% from Jan 2015 to Nov 2015 with a daily rate of £1.14 until date of judgment, plus court fees and the rest. Total: £6,200

Questions -

1) Is this defensible in part or in whole (it's a question I have to answer in the "Acknowledgment of Service" in order to get an additional 28 days). What would say you have to put forward in defence? But acknowledge now and intention to defend in full. Use MCOL ( money claim online).

2) Contest Jurisdiction - what is this about and should I contest it? If you live in England/Wales no you don't contest jurisdiction.

3) I know that I've been paying £1 all this time so it's not statute barred, but the fact that it's been over 10 years have any influence or is there no difference from
a loan of just a year? No difference whatsoever, every payment made reset the 6 year clock to Zero. Have you had statements/ do you know how much you have paid?

4) On the MCOL site, there is also the option "Start Defence" - do I use the EXAMPLE DEFENCE there or must that be sent to the solicitors or do both?
DO NOT enter any defence now!!
5) Can someone point me to the information of point 11 as I don't know if they have actually failed to comply (The Claimant has failed to comply with [s77 (1) / s 78 (1)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Have you made a CCA request to the claimant? If not do so by signed for post.
This is for a copy of the agreement and a signed current statement of what is owed. (nothing else) A £1 statutory fee is payable use a postal order
endorsed " For Statutory Fee Only". There's a template in the forum library. The Claimant has 12 + 2 Working Days to Reply.

6) From the date given, I have 4 more days to respond, however, the fact that I have logged in but not done anything else, does that stop the clock or do I have to complete the "Acknowledgment of Service" first? Acknowledge NOW you must complete the AOS.

For now, many thanks for all of your support.

- StreetCred

You need also to send a Request made under Civil Procedure Rule 31.14 ( CPR 31.14) to Kearns This is for Documents Specifically mentioned in the Particulars of the Claim (POC) you cannot request anything else there is no fee for this request. Use the template from the forum library.

nem

**StreetCred** · 22nd November 2015, 17:47:PM

Re: Court Claim - MBNA/Link Finance

Thanks Nem - super fast response too!

I'll assume it's OK to continue this way (this posting), though I wasn't trying to reply to any open threads and thought this is the correct section to start such a thread, otherwise, please advise.

Moving on then with questions/answers -

1) I just now confirmed (MCOL), but was under the impression that by doing that, I would get 28 days. If I do, it's not clear, so do I need to do anything to extend this?
2) Yes, I have been getting statements. The last one (August) shows a balance of £5,375, so not sure why they're now asking for £5.5K plus all the extras!
3) Maybe too early to ask this but to put forward a defence, do I pick the appropriate points from EXAMPLE DEFENCE? No, don't worry - won't do anything like that yet, not until I get confirmation from you/others that it's time to do so.

I'm most grateful to you and your care and attention and so quickly. Will now continue with sending the various letters as you advise.

- StreetCred

**Kati** · 22nd November 2015, 17:53:PM

Re: Court Claim - MBNA/Link Finance

Originally posted by StreetCred View Post

I'll assume it's OK to continue this way (this posting), though I wasn't trying to reply to any open threads and thought this is the correct section to start such a thread, otherwise, please advise.

If the thread needs moving, we'll move it and let you know xx

- - - Updated - - -

Originally posted by StreetCred View Post

1) I just now confirmed (MCOL), but was under the impression that by doing that, I would get 28 days. If I do, it's not clear, so do I need to do anything to extend this?

33 days from "date of issue" or 28 days from receipt

**StreetCred** · 22nd November 2015, 17:53:PM

Re: Court Claim - MBNA/Link Finance

OK, thanks for that Kati....

**Kati** · 22nd November 2015, 17:55:PM

Re: Court Claim - MBNA/Link Finance

Originally posted by StreetCred View Post

3) Maybe too early to ask this but to put forward a defence, do I pick the appropriate points from EXAMPLE DEFENCE? No, don't worry - won't do anything like that yet, not until I get confirmation from you/others that it's time to do so.

the EXAMPLE DEFENCE is a template that you can adapt to your circumstances ... have a play around and post up what you get for comment :nod: xx

**StreetCred** · 22nd November 2015, 17:57:PM

Re: Court Claim - MBNA/Link Finance

When you say "28 days from receipt", do you mean receipt from the MCOL AOS?

**Kati** · 22nd November 2015, 18:08:PM

Re: Court Claim - MBNA/Link Finance

Originally posted by StreetCred View Post

When you say "28 days from receipt", do you mean receipt from the MCOL AOS?

We usually go with the 33 days from issue (they allow 5 days for receipt)

xx

**StreetCred** · 22nd November 2015, 18:16:PM

Re: Court Claim - MBNA/Link Finance

Thanks Kati, I think my question has been answered, however and to be clear, what I wanted to have confirmed is that by doing the AOS that gives me the extension of 28/33 days, or do I have to do something more like write letters, etc.?

Lastly, does the clock resets every time I do something - for instance, if I write a letter requesting additional documents? In other words, is the 28/33 days all I've got in total to get my defence going or is this going to take as long as it takes?

**nemesis45** · 22nd November 2015, 19:27:PM

Re: Court Claim - MBNA/Link Finance

Originally posted by StreetCred View Post

Thanks Kati, I think my question has been answered, however and to be clear, what I wanted to have conf,irmed is that by doing the AOS that gives me the extension of 28/33 days, or do I have to do something more like write letters, etc.?

Lastly, does the clock resets every time I do something - for instance, if I write a letter requesting additional documents? In other words, is the 28/33 days all I've got in total to get my defence going or is this going to take as long as it takes?

You have the 28 + 5 days unless the claimant agrees to a further extension.
Failure by the claimant to respond to the CCA request within the 12 + 2 Working
days renders the debt unenforceable Until the agreement is supplied.
The court process will carry on.#

Enter a defence with the court the court passes defence to claimant who has then 28 days to respond ( from the date they receive the defence)
if the claimant fails to respond within the 28 days the court will stay (suspend) the claim You Are Not Informed When This Happens so you would have to phone the court to check on the status of the claim.
nem

**StreetCred** · 22nd November 2015, 19:55:PM

Re: Court Claim - MBNA/Link Finance

Thanks Nem... so if I understood correctly, confirming with the AOS (what I did today in MCOL), gives me a total of 33 days from issue date, which will give me time to hand in my requests.

Will I start my defence after the CCA/CPR is supplied? Once I receive these do I need further guidance from the forum as to how go forwards or will it be self explanatory?

Thanks again!

- StreetCred

**StreetCred** · 15th January 2016, 14:13:PM

Re: Court Claim - MBNA/Link Finance

First of all, Happy New Year!

I've not had anything to report... until now.

After the advice given (above), I sent letters to both Link and the Solicitor requesting various documents as per CCA/CPR.

Link responded right away asking for more time (up to 30 days) to collect the necessary documents as it's been a long time (over 10 years) since they took over.

The Sol., took their time (well over the 7 days I had asked to respond by!) and says that (on the basis of CPR Rules 31.14), my requested documents are only disclosed "within a statement of case".

This implies (as they're putting it) that I cannot base my claim on the lack of these as there's no obligation on their part.

Further, they state, the obligation is for mutual disclosure in accordance with directions, which have not yet been given... (whatever that means).

The letter continues saying that CPR rules are not meant to be used to gain advantage by either party in order to gain "advanced disclosure", prior to filing a defence; the requirement is that both parties "play" fairly and that no advantage given/taken to/by either.

They've also sent me a copy of the agreement and notice of assignment (both requested), but what was requested and not sent was the "default notice" as they argue that it's not necessary because the entire balance is in arrears therefore a default notice is not needed as a prerequisite to the proceedings - yet in the original particulars, they claim that a default notice was recorded.

Am waiting on Link's second reply asking for more time to recover the requested documents (up to 30 days according to them).

In the meantime, the Sol., says that they're holding my account for 14 days for review (not sure what more they need to be reviewing!) and to file my defence.

The above is a summary/intent of their letter.

My comments/questions below -

1) What "unfair" advantage am I taking by my asking to see certain documents (which they already have or should have) in order to defend myself? Isn't that an unfair advantage to which they're claiming neither party should have?
2) Am I not using the CPR rules as their obligation (and my right) for them to disclose these documents, and am using the "rules" as reason/requirement for them to do so?
3) Where they say (above) that "the obligation is for mutual disclosure in accordance with directions", who gives these "directions" or are they saying that there are none therefore there's no obligation on their part?
4) Why is a default notice not needed (according to them) and why would I need one to add it to my defence and is it anyway important to my defence therefore I should insist?
5) The Sol., is waiting 14 days (as they said), therefore waiting on my response. In the meantime, what if Link doesn't supply the necessary information, can I use that as my reply for them to wait further?
4) Am I starting to see their beginning to run out of options and on their way to losing a case? Surely they can't be serious when they say I can't use CPR rules!
5) Lastly, how do I respond to the above and insist on the disclosure of documents they don't want to give?

Thanks to all for your valued help!

**nemesis45** · 15th January 2016, 14:35:PM

Re: Court Claim - MBNA/Link Finance

[QUOTE=StreetCred;611020]First of all, Happy New Year!

I've not had anything to report... until now.

After the advice given (above), I sent letters to both Link and the Solicitor requesting various documents as per CCA/CPR.

Link responded right away asking for more time (up to 30 days) to collect the necessary documents as it's been a long time (over 10 years) since they took over.

The Sol., took their time (well over the 7 days I had asked to respond by!) and says that (on the basis of CPR Rules 31.14), my requested documents are only disclosed "within a statement of case".

This implies (as they're putting it) that I cannot base my claim on the lack of these as there's no obligation on their part.

Further, they state, the obligation is for mutual disclosure in accordance with directions, which have not yet been given... (whatever that means).

The letter continues saying that CPR rules are not meant to be used to gain advantage by either party in order to gain "advanced disclosure", prior to filing a defence; the requirement is that both parties "play" fairly and that no advantage given/taken to/by either.

They've also sent me a copy of the agreement and notice of assignment (both requested), but what was requested and not sent was the "default notice" as they argue that it's not necessary because the entire balance is in arrears therefore a default notice is not needed as a prerequisite to the proceedings - yet in the original particulars, they claim that a default notice was recorded.

Am waiting on Link's second reply asking for more time to recover the requested documents (up to 30 days according to them).

In the meantime, the Sol., says that they're holding my account for 14 days for review (not sure what more they need to be reviewing!) and to file my defence.

The above is a summary/intent of their letter.

My comments/questions below -

1) What "unfair" advantage am I taking by my asking to see certain documents (which they already have or should have) in order to defend myself? Isn't that an unfair advantage to which they're claiming neither party should have? The Solicitors seem to have supplied the docs, if a DN is mentioned in the POC chase them.

2) Am I not using the CPR rules as their obligation (and my right) for them to disclose these documents, and am using the "rules" as reason/requirement for them to do so? CPR 31.14 applies Until the claim is allocated to the small claims track. so Yes.

3) Where they say (above) that "the obligation is for mutual disclosure in accordance with directions", who gives these "directions" or are they saying that there are none therefore there's no obligation on their part? The Court i.e. a Judge will give the direction as required in the court process.

4) Why is a default notice not needed (according to them) and why would I need one to add it to my defence and is it anyway important to my defence therefore I should insist? If the DN is mentioned in the POC push for it.

5) The Sol., is waiting 14 days (as they said), therefore waiting on my response. In the meantime, what if Link doesn't supply the necessary information, can I use that as my reply for them to wait further? An agreement in now in your possession is it not? I would like to see a copy please.

4) Am I starting to see their beginning to run out of options and on their way to losing a case? Surely they can't be serious when they say I can't use CPR rules! Most solicitors decline CPR31.14 on the grounds that a claim will be allocated to the small claims track anyway so they don't bother to comply. To attempt to " enforce " CPR 31 .14 is expensive. As the solicitor has the agreement then one can assume your CCA request is going to be met as well.
5) Lastly, how do I respond to the above and insist on the disclosure of documents they don't want to give? Is it not only the DN that has been declined?

nem

Court Claim - MBNA/Link Finance