Help with MBNA/Varde Court Claim Please

[teaboy2]

Re: Help with MBNA/Varde Court Claim Please

Thanks for all your responses

It appears I may have walked into a war zone!

The situation I find myself in is very stressful and at this point I am unable to pay and coming to an arrangement would mean I was breaking the terms of a second charge that i have with a sub prime lender which will almost certainly result in me losing my home. So I really have no choice but to do my best to defend the case.

Peter

Are you saying from my original post I have nothing to defend on? Do you agree with someone in my position trying to defend?

Teaboy

I am very grateful for any advice you have and just hope trying to help me does not cause you unnecessary stress.

Billy

Hi billy

Don't worry am used to arguing points or law and legal arguements with people, as for the post (12) where peter qouted the result of a case, well as i made clear to him on another thread, you should not write to accept their unlawful rescission, as that is basically agreeing to the recission of the contract regardless of whether it was recinded lawfully or not - But i will not debate this agrument with peter here as its been debated enough on an other thread and i believe everyone seeking advise should be aware of both arguments. Though the result of that case kind of proves that they can be in repudiation of contract, and in order to be in repudiation of contract they have to unlawfully rescind the contract. As section 87 in the act is what allows the creditor to lawfully resind the contract if compiled with, so if not complied with then its unlawful rescission that then puts the creditor in repudiation of the contract, but you should never write to confirm acceptence of their repudiation as that is a stupid thing to do as it allows for the repudiation to be a mutual rescission instead.

I have followed my own advice against MBNA successfully, and have invited them to take me to court twice, yet they refuse to do so.

So my advice would be SAR mbna and get them confrimation as to who they sold to and on what date etc, then write to experto infroming them that the agreement was unlawfully rescinded by MBNA as a result of termination of the back of an invalid DN as such they are not entitled to anything other that the arrears owed at the time the DN as their unlawful rescission of contract put MBNA in repudiation of contract. Also as mbna are no longer the legal owners of the account the agreement ceases to exist and therefore they can not remedy the invalid DN. Then in regards to the A+L account make it clear that as they have not complied with your CCA request and instead admitted that they do not have a copy, then they are therefore in default of your request and not entitled to enforce the account in court and same for the other account they unlawfully rescinded as an invalid DN prevents a court from enforcing such account and any such attempt to enforce will result in a counter claim for unlawful rescission for which could give you a claim for damages of upto £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119)

Also qoute the following case law too them - Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147)

[billysilly]

Re: Help with MBNA/Varde Court Claim Please

Thanks Teaboy

So the request i sent Varde solicitors for all information is not the same as SAR? Should I have sent it to MBNA? Should I SAR MBNA as well?

When you say write to Experto (would it not be Varde as they are claimant?) should I do this now or write it in my defence which I have to send within the next couple of weeks?

Thanks again

Billy

[teaboy2]

Re: Help with MBNA/Varde Court Claim Please

Thanks Teaboy

So the request i sent Varde solicitors for all information is not the same as SAR? Should I have sent it to MBNA? Should I SAR MBNA as well?

When you say write to Experto (would it not be Varde as they are claimant?) should I do this now or write it in my defence which I have to send within the next couple of weeks?

Thanks again

Billy

You should have sent the solicitors a CPR request not the SAR as the SAR should have been too MBNA and you might as well send one to experto too as any and all information could be useful

[Guest]

Re: Help with MBNA/Varde Court Claim Please

Hi billy

Don't worry am used to arguing points or law and legal arguements with people, as for the post (12) where peter qouted the result of a case, well as i made clear to him on another thread, you should not write to accept their unlawful rescission, as that is basically agreeing to the recission of the contract regardless of whether it was recinded lawfully or not - But i will not debate this agrument with peter here as its been debated enough on an other thread and i believe everyone seeking advise should be aware of both arguments. Though the result of that case kind of proves that they can be in repudiation of contract, and in order to be in repudiation of contract they have to unlawfully rescind the contract. As section 87 in the act is what allows the creditor to lawfully resind the contract if compiled with, so if not complied with then its unlawful rescission that then puts the creditor in repudiation of the contract, but you should never write to confirm acceptence of their repudiation as that is a stupid thing to do as it allows for the repudiation to be a mutual rescission instead.

I have followed my own advice against MBNA successfully, and have invited them to take me to court twice, yet they refuse to do so.

So my advice would be SAR mbna and get them confrimation as to who they sold to and on what date etc, then write to experto infroming them that the agreement was unlawfully rescinded by MBNA as a result of termination of the back of an invalid DN as such they are not entitled to anything other that the arrears owed at the time the DN as their unlawful rescission of contract put MBNA in repudiation of contract. Also as mbna are no longer the legal owners of the account the agreement ceases to exist and therefore they can not remedy the invalid DN. Then in regards to the A+L account make it clear that as they have not complied with your CCA request and instead admitted that they do not have a copy, then they are therefore in default of your request and not entitled to enforce the account in court and same for the other account they unlawfully rescinded as an invalid DN prevents a court from enforcing such account and any such attempt to enforce will result in a counter claim for unlawful rescission for which could give you a claim for damages of upto £1000 (Kpohraror v Woolwich Building Society (1996) 4 All ER 119)

Also qoute the following case law too them - Failure of a Default or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contracti is not where does it say that i the judgement which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147)

You really have got rescinding and termiation mixed havent you, section 87 does not allow the creditor to rescind anything, the section says what it allows.
Termination is not resciding a contract.

YOU cannot unilaterally rescind a contract it is a contradiction in terms to be rescided the contract must be returned to its orriginal position as in the one case you mentioned that is relavant to your argument.
This is not arguing points of law, you flatter yourself.

ALmost all of your contentions here are incorrect Swain does not say anything about rescission.
Have you ever known anyone claim damages when they themselves have breached an agreement.
There are many cases where this has been tried and not one has been sucessful, it does not seem to make any difference to you.

See if you can understand this.

IF you have a theory you must evedence that theory before you present it as fact.
It is no argument to say that no one can disprove the theory that is not how it works.

Even if you do not aknowledge the abundant evedence against this you must at least acknowledge that it is an unproven theory, and as such you should not be recommending it.

Peter

[teaboy2]

Re: Help with MBNA/Varde Court Claim Please

You really have got rescinding and termiation mixed havent you, section 87 does not allow the creditor to rescind anything, the section says what it allows.
Termination is not resciding a contract. Err yes it is when terminating the agreement they are ineffect rescinding and claiming all liabilities owed - hence why unlawful termination is unlawful rescission. As for section 87, it can only be used when i debtor defaults on repayments - definition of rescission is - Rescission is a remedy in equity which aims to set aside transactions and perhaps order the payment of money so as to place parties in a dispute (or in case of CCA debtor in default/breach of agreement) in the position they would have been in before any transaction between them had been entered into. - Which is what section 87, if complied with fully, entitles the creditor to do i.e. terminate/rescind and claim all liabities owed under the agreement. So please tell us how termination is not rescinding a contract. When case law says unlawful termination is unlawful rescission

YOU cannot unilaterally rescind a contract it is a contradiction in terms to be rescided the contract must be returned to its orriginal position as in the one case you mentioned that is relavant to your argument.

I know that hence why all liabilies are owed when recinded lawfully, in order to put both parties back where they were before the agreement was entered, but failure to comply with section 87 makes the rescission unlawful, and therefore the offending party is not entitled to reclaim all liabilities owed, but only the arrears. As the offending party would be in repudiation of the contract as a result of the unlawful rescission

This is not arguing points of law, you flatter yourself. Sorry if anyone is flattering themselves its you Peter - Maybe you would like to explain how our argument is not a based on points of law?

ALmost all of your contentions here are incorrect Swain does not say anything about rescission. - I suggest you reread what i put peter, as i did not say the Swain case was for rescission, in fact the swain case is the case law for invalid DN and termination notices "Failure of a Default or Termination Notice to be accurate not only invalidates such notice" - it is the following cases that are the case law for unlawful rescission - "(Wilson v First County Trust Ltd (2003) UKHL 40, Wilson V Robertsons (London) Ltd(2006) EWCA Civ 1088, Wilson v Pawnbrokers (2005) EWCA Civ 147) and of course (Kpohraror v Woolwich Building Society (1996) 4 All ER 119)" which gives the claiment a claim for damages of upto £1000

Have you ever known anyone claim damages when they themselves have breached an agreement. Point is the debtor is entitled to remedy such breach, so the unlawful rescission would deny them their right to be able to remedy there breach - so you above point is muted
There are many cases where this has been tried and not one has been sucessful, it does not seem to make any difference to you. Name them, as i said peter, name a single case where the DN was found invalid and the debtor was counter claiming for unlawful rescission and it failed on the rescission.

See if you can understand this. - Perhaps you should listen to yourselve peter, afterall your argument is also an unproven theory based on your own interpretation too.

IF you have a theory you must evedence that theory before you present it as fact.
It is no argument to say that no one can disprove the theory that is not how it works. - Would that be evidence you qouted in post 12 as being in support of your claim which actually supported my argument more than it did yours, when you were the one saying the act did not allow for rescission. Which is something else you failed to provide evidence off despite my asking you on a number of occasions.

Even if you do not aknowledge the abundant evedence against this you must at least acknowledge that it is an unproven theory, and as such you should not be recommending it.

One thing i will say peter is the argument for unlawful rescission has been around for years and nearly everyone who gives advice on consumer forums has used it when they have been issued an invalid DN. It is only recent when you started pointing out your argument - yet as shown here, you have failed to prove your argument.

Peter

Originally Posted by teaboy2
Sorry Billysilly but am going to have to keep my response brief as am fairly busy we other commitments at the moment and was just having look during a short break when i spotted your post. Hopefully others can provide more detailed advice for you.

Well the agreement where they do not have the credit agreement for, can not be enforced in court without the agreement, so they still in default of your CCA request as a result of their failure to provide one. So thats a complete defence for that account unless they produce one in court, though as they are in default of thwe request still and haven't sent you even a recon then they should not be take it to court anyway.


This is incorrect, there is no reason why they cannot take you to court, none compliance with a section 78 request does not stop them commencing proceedings , which includes taking court action. See Rankine.
If they produce a compliant document in court then their is no reaso why it will not be enforced. Learn to read peter, where ohh where did i say they can not take it to court hmmm? I said it can not be enforced in court without the agreement, not that it can not goto court!!


The Default does look invalid - Was it sent second class (s in the postage stamp) or first class? was the date for remedy stated as the date before the 26th (which woiuld make the 25th the last day to remedy) or date before the 27th (making the 26th last day to remedy)?

You will need to sar MBNA to get confirmation as to the date it was sold and who too. They told me they sold mine to Experto when infact it was to Varde, they sold mine on the 17th august 2009 just before i started my company, even though the rememdy date was the date before the 29th and the DN not received till the 18th making it invalid on 2 counts - them selling before the remedy date and not allowing a full 14 days for remedy after service of the DN. Which means as the DN is invalid then they can not enforce in court and is in my opinion unlawful rescission which is what i have argued with experto for the last 2 years now and they dare not take me to court even though i invited them to do so on 2 occasions.

THis is ncorrect, currently creditors will argue that the enforcemnt of a Incorrectly formated default notice will depend on the amount of predjudice cause to the error, see Brandon Vs Amex. which is being appealed and has no effect on the fact of law that a default needs to be valid in order for them to lawfully terminate or enforce the debt.

Others will disagree with it being unlawful rescission but unltimately its upto you which argument to use as no case law says for definite eitherway in direct regards to the consumer credit regulated agreements, but i personnaly see no where in the consumer credit act where it does not allow for unlawful termination or where it states such termination would be invalid despite what others are inclined to believe.

There is no argument for unlawful rescission on a consumer credit agreement, there has never been any case recorde that says otherwise, we have however cases where people have accepted the rescission and the judge has found for the creditor because the liabilities were immidiatly due because of the debtors repudiation of contract. See this

http://www.consumeractiongroup.co.uk...=1#post3338072

See my last post in reponse to your linked post and your above statement

Yes you need to tell them you will be defending

Read more at: Help with MBNA/Varde Court Claim Please - Legal Beagles Consumer Forum

Just because a creditor does not take someone to court does not mean that you have a good defence, in most cases creditotrs prefer to use a dca anyway and there has been many cases where creditors have sucessfully enforced under simialr circumstances to yours. Really NAME ONE CASE (high court case not small claims as they are not case law) where the DN has been invalid and counter claim for unlawful rescission was struck out? i think you will struggle too.

Yes by all means tell them you will be defending but not on the rescission argument because they may just take you at your word and ask the court to rescind the agreement. As above.

Peter

Get over yourself peter - at the end of the day id rather someone seeking advise is aware of both the old argument (mine) that has been around for years and your new argument (your argument), despite the fact i disagree with your new argument.

Now i suggest you refrain from causing yet another debate on this issue and from making personally demeaning statements/comments towards me and/or telling myself and anyone else for that matter what they can and can not post, just because you yourself disagree with them, to avoid ruining billys thread. It is upto billy whos advice he chooses to follow and the fact of the matter is that if the DN is invalid and plus no agreement is produced then their claim can not be enforced anway. So the counter claim for unlawful rescission will have no effect on the defense of invalid DN and lack of CCA agreement and will not effect the success of the defense. After all its a counter claim that can be used to claim for damages and not to be used as defence against the creditors claim.

P.s. I will not debate this further in this thread or in the other thread as its a waste of time debating it any further with you peter.

[billysilly]

Re: Help with MBNA/Varde Court Claim Please

Peter

Could you please answer my earlier questions?

My reason for being on here is not out of fun or enjoyment it is out of desperation and I would like to make an informed decision on the advice anyone can offer.

Thanks

Billy

[Algee]

Re: Help with MBNA/Varde Court Claim Please

billysilly

You will find that Peter Bard does not give advice on defending a claim. His purpose in life appears to shout down any advice he doesn't agree with.

As Teaboy has pointed out, PB also shouts you down on points you haven't made. Much the same as DCA's do.

Alan

[billysilly]

Re: Help with MBNA/Varde Court Claim Please

Hi

I have had my first response to my SAR request from Experto


"We do not hold your original documentation. The information we can supply will therefore be limited to that held on our screens. We do not hold a copy of your agreement of (I think they mean or!!) other documents sent to you by MBNA. Please advise whether you wish us to proceed with us (Their spelling mistake not mine!!), or whether you would prefer us to return your fee, so that you can direct your request to MBNA. You may of course submit an application to them as well as us"

Is this not admitting they do not have relevant documents to take me to court?

Billy

[teaboy2]

Re: Help with MBNA/Varde Court Claim Please

No, its not experto whos taking you to court, but Varde. So if Varde sent you a similar response i.e. No agreement - In Response to your CPR to them, then you will have them by the balls and can use such a response to have the case struck out, whether you wish to go for the juggler with a counter claim for unlawful recission or not is upto you, but you can get damages upto £1,000 if you do and are successful - Plus it would have no bearing on the outcome of your defence against their claim against you.

So yes tell them to proceed, as any info on their screens will likely give a date they first got your details, and that would help narrow down the exact date your account was sold to varde and experto were ordered to collect. Put it this way if it was before the remedy date then you would have grounds for the counter claim.

[billysilly]

Re: Help with MBNA/Varde Court Claim Please

Thanks Teaboy!

I am confusing Experto with Varde!

Should I also SAR Varde? So far I have sent SAR requests to Experto & MBNA and CPR to Hegarty LLP

Billy
------------------------------- merged -------------------------------
PS It was Experto that filed the default on my credit file! Is that not odd if they do own the debt?

[teaboy2]

Re: Help with MBNA/Varde Court Claim Please

If they show as the named party then they should not be filling the DN as they do not own the account. Therefore the DN on your file is inaccurate you need to report it to the credit reference agency where you got your credit reports from to get it removed or corrected.

As for a SAR to Varde, well i would assume the solicitors would have copies of all relevent documents they intend to rely on in court.

p.s. Varde investment (ireland) limted do not hold a UK credit file, so i think that means they will not be entitled to enforce this debt in court - might be worth asking the solicitors why they are taking court action in the UK when Varde do not have a UK credit license and therefore not entitled to enforce a regulated agreement under the consumer credit act 1974. (am not 100% certain about this though but its worth a shot and will give them something to think about and waste their time looking into lol)

[MIKE770]

Re: Help with MBNA/Varde Court Claim Please

Check first - but I believe that they can within EEU, others I am sure will advise further?

[billysilly]

Re: Help with MBNA/Varde Court Claim Please

Thanks for the advice

I will write back to Experto and confirm I want them to go ahead and see what information comes up before I contact CRA. Is there any chance Varde and Experto are part of MBNA?

I would appreciate any further advice about the Uk credit licence/EEU debate

Billy

[teaboy2]

Re: Help with MBNA/Varde Court Claim Please

No Varde and Experto are completely seperate companies Billy.

As for the Credit License and EEU well it will need looking into in order to be certain about it. I would suggest asking the OFT if a company without a UK credit license can take you to court for a debt they bought, when they are not a UK company but still based in an EU member state.

[billysilly]

Re: Help with MBNA/Varde Court Claim Please

Thanks again

I have just tried looking up OFT phone number.

Their website says they cannot give individual advice and that you have to contact consumer direct - don't think they will be able to help!

Am I being a billy again?