Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

[neeskens]

Northampton County court bulk processing centre have issued CCJ in favour of MBNA for a substantial credit card debt. Just prior to this I formally requested a copy of original CCA & sent £1 postal order to Restons solicitors, acting for MBNA, who had sent me threatening letters to pay immediately or face court action. They promptly sent letter & postal order back saying it was unsigned and therefore they weren't convinced I was who I purported to be. By return I sent same letter duly signed along with £1 postal order. They then again returned the letter and postal order saying they are not the creditor but a firm of solicitors. They also wrote that there is no longer an "agreement" as this was terminated when I failed to comply with the terms of the default notice issued by the bank, which I hadn't received. They referred to the judgement of Judge Simon Brown QC in Rankine v American Express Services Europe. They further add that my liability under the account is now determined by the judgement awarded in favour of MBNA. I then sent a letter to MBNA requesting a copy of the CCA pursuant to s.78(1) of the Consumer Credit Act 1974. This was sent on 10 May. To date I have had no reply from them Any advice on how best to proceed from hereon in will be very much appreciated. In grateful anticipation, Neeskens

[QCKate]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Restons are an unpleasant bunch (as are mbna imho) BuT they are often also incompentent, so that might give you some hope. good luck.

QCK

[Dougal16T]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Good morning,

I see that you say that a 'CCJ' has been issued against you, how was this obtained?
1) Did you receive notice of proceedings being commenced?
2) It may well be possible to get this order 'set aside', if you were not correctly notified, as you would have been unable to enter a defence or any counterclaim you may have.
3) The CCJ was obtained whilst the account was obviously in dispute, so what has actually happened to date?
4) Could you post all this info in date order ? (and then I am sure that we will all try and help.

I am not happy at the way you have been misled into sending your signature - we need to look into this urgently. Do NOT correspond with or talk to anyone from MBNA at the moment - please.

We want to help if we can. :beagle:

Just to give you some hope, I had a lot of grief with MBNA and managed to 'see them off' (and get a large sum of money from them!), not because I am any good, but because they were hopeless! All I did was use the advice I have received from others here and put it to good effect.

As always best wishes to all

Dougal

[neeskens]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Thanks Dougal & QCK. Following Restons communication to pay the outstanding balance, I sent them a financial statement prepared by the CCCS on my behalf. This showed that my income just covered my usual monthly outgoings and there were no additional monies to make any payment other than a nominal £1 per month. They sent out a letter dated 16 March 2010 advising that this was insufficient to halt commencement of legal proceedings. I then received a claim form from Northampton County Court dated 19 March 2010.

The particulars of their claim are as follows:

The Claimant, MBNA, claims payment of overdue balance from me under a contract dated "on or about 25/05/1995;.

I responded within the 2 week period that I would be contesting this, using the online option available. With very little legal knowledge I then began researching my options, not the easiest task, including attempting to contact the CAB. It proved virtually impossible even to contact them, especially with the time constraints of having to work. Then trying to make sense of all this takes a fair amount of time.

I decided the best form of defence in the light of research was to request the original copy of the CCA, I'm not certain I ever signed one other than an application form. At this point I wrote to Restons requesting a copy of CCA and sending the required £1 by Postal Order, and leaving it unsigned but with my name typed at the bottom. They returned the P.O uncashed with a letter saying they had received a letter purporting to be from me, but unsigned, and that

;...we must ensure we are corresponding with the correct person and that anyone requesting information is entitled to receive it. Please ensure that all documentation is signed failing which we will not acknowledge receipt nor provide any response".

This letter was dated 28 April 2010. Interestingly, someone observed that there an arcane law stating that a Postal Order bearing the Queen's head must be cashed otherwise it is an offece?? On receipt of this letter I sent the original request, this time signed, along with the same P.O. They replied, as stated in my original post, saying effectively they are a firm of solicitors and not the creditor.

This was dated 5 May 2010 and again the P.O. was sent back to me uncashed. In the meantime I had received the CCJ dated 25 April 2010 and recieved by me on 30 April. I also received, shortly after the CCJ from Northampton CC and unsolicited, a letter from EuroDebt Financial Services offering to help me with the CCJ and referring to the CCJ by its Judgement number, date and amount.

Is this a breach under data protection legislation? A very salient point in this matter is that this debt is essentially a consequence of accepting the offer of 0% APR interest for a 10 month period on a balance and credit limit transfer from another MBNA account (in the form of 0% APR credit card cheque).

This was arranged over the phone and I believe I have the contemporaneous notes. The offer by way of unsolicited mailshots was always for 0% APR balance transfers and/or credit card cheques. These always had a fee tacked on to the borrowed sum usually between 3%-4%. THE INTERESTING BIT IS THAT EACH SUBSEQUENT MONTH OF THE OFFER PERIOD THEY WERE CHARGING INTEREST, ALBEIT A SMALLER RATE THAN THE STANDARD. NON OFFER, RATE.

I understand that this may breach the CCA 1974, as a 0% APR offer must be exactly that, otherwise it is misrepresentation and therefore illegal. My thanks to you all and I look forward to hearing from you with further advice and thoughts. It is a great comfort to be able to air this on the forum as many people will be aware of the huge stress this causes along with the impact on the family. Best Wishes, Neeskens

[Dougal16T]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Good morning,

I see that you say that a 'CCJ' has been issued against you, how was this obtained? Can you help by telling us this information:

1) Did you file a defence?
2) Did you receive from the Court an acknowledgement of your filing any documents at all? If so which ones?
3) It may still be possible to get this Judgement 'set aside', if the process was not followed correctly, and it seems that there has been very little of this that has been correct on the part of Restons.
4) I see that the date you have entered as the start of the agreement is the 25/5/1995. What was the last date that you made any payment to MBNA?
5) Restons should have a copy of your CCA on the file - but to 'short circuit' the system, I suggest sending MBNA a request directly. [In the event opf non-compliance by them you will have some ammunition in your armoury! - which you may be able to use later.]
6) To anser your question about Eurodebt - they will have seen the CCJ listed and decided to go 'fishing' - in other words hoping you would contact them to 'get yourself out of debt' - DON'T TOUCH THEM. In essence this is good news, because Eurodebt will only usually tackle cases where there is a 'problem' with the compliance of the CCA by the original creditor - MBNA.

In view of the possible breach of the CCA and other Laws (possibly my old friend the Fraud Act 2006) It is essential you immediately send a request to MBNA under the Data Protection Act for copies of all paperwork/records they hold about you for this account and the transferred account. The fee should be £10 for this (they mnay try to argue it should be £20 - two accounts- but this will not hold water as they themselves have 'merged' two accounts into one.

Once you have got these details we will carry on. You should also write to Restons telling them you are sending this request to MBNA direct - they cannot then argue they did not know!

Finally send ALL correspondence from now First Class Recorded delivery this will ensure that all parties receive the mail and that you have a receipt for it! (I know it costs £1.15 per letter, but believe me it is money VERY well spent.


[Section 25 of the Post Office Act 1908 places the onus on Restons to cash the Postal Order and make payment to MBNA]:tinysmile_hmm_t2:



As always best wishes to all

Dougal

[Amy]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

In view of the possible breach of the CCA and other Laws (possibly my old friend the Fraud Act 2006) It is essential you immediately send a request to MBNA under the Data Protection Act for copies of all paperwork/records they hold about you for this account and the transferred account. The fee should be £10 for this (they mnay try to argue it should be £20 - two accounts- but this will not hold water as they themselves have 'merged' two accounts into one.

The fee for a Data Protection Request is £10 no matter how many accounts one has with the company. The DPA covers all information held on an individual and that could be many accounts.

[Dougal16T]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

The fee for a Data Protection Request is £10 no matter how many accounts one has with the company. The DPA covers all information held on an individual and that could be many accounts.

Good evening,

Thanks Amy, that's what I was trying to say....! Much obliged..


As always best wishes to all

Dougal

[neeskens]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Once again, thanks to Dougal & Amy.

To answer the questions you pose Dougal.

I have yet to file a defence as It is very difficult to know how best to present a case for the greatest probability of a succesful outcome.

Many hours of research & sifting through much information, some relevant, some not so; and stumbling across various forums who aim to help in such cases have led me sometimes confused and unsure about process.

However, I alluded to the various points of dispute in my last post; namely the existence of an original copy of a CCA signed by myself & MBNA. My recollection is that I only signed an application form. Also the point about my response to a 0% APR offer which infact turned out to incur interest during the offer period must surely be misrepresentation, at the very least?

I have been paying MBNA £1 per month towards the end of each month, therefore I last paid them around the 30 April 2010, and they have duly accepted every payment.

I have already sent MBNA a request for a true copy of CCA twice, the last time this Wednesday 26 May after they failed to respond to the first request (more than the required 12 days response period had elapsed).

I will, as you advise, now send a request to MBNA under the Data Protection Act for all documents/records relating to my account(s) along with the £10 fee.

Should I also hastily send in the N244 form to have the judgement set aside prior to an enforcement hearing?

Any advice on how to best approach this for maximum effect will be immensely useful.

I look forward to hearing from you soon.

As always, many thanks and best wishes to all.

Neeskens

[Dougal16T]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Good morning

Quote: "I have yet to file a defence as It is very difficult to know how best to present a case for the greatest probability of a succesful outcome. "

There are some problems here - there is a time limit for filing a defence.

I am still having some problems myself resolving how this all happened:

My view is as follows: I see that MBNA instructed Restons who kept writing to you and threatened all sorts of mayhem..but you did ask Restons for a copy of the agreement from them (which is your right from MBNA, but Restons would have a copy -if there was one - on their file), and sent Restons a postal order for £1.00.

What is interesting (and goes towards showing character of Restons) is that they write to you one minute threatening you and then as soon as you request information from them, they seem to think that you are not who you say you are! (This is to avoid their liability to comply with the law in my view, and is an abuse of their position) Then Restons return the PO to you, and you re-send it to them with a signed letter. Again they return the PO (instead of requesting the copy document from their clients - if they don't have a copy - which I doubt), and this time state that they are not the creditor.(Which is true - BUT they are apparently acting on the instructions of the creditor and therefore share liability for complying with the law in relation to their instructions from the creditor.)

Please can you answer this:

1) More importantly did you at any time receive a default notice under Sec 87 of the CCA 1974?

I see that Restons rely on Rankine, apparently as a 'case stated'. This is an attempt to 'put you off', and should in some respects be ignored.

I would say their argument is badly flawed as your case has no parallel with Rankine, which in essence centred round attempts by the Debtors to evade liability by scurrilous means.

Your case is simple:

Can Restons prove to the satisfaction of the Court that you received a default notice, or indeed that one was ever sent?

Can you also answer these and post details of which (if any) documents you have received)

2) Did you receive from the Court an acknowledgement of your filing any documents at all? If so which ones?

3) It may still be possible to get this Judgement 'set aside', if the process was not followed correctly, and it seems that there has been very little of this that has been correct on the part of Restons.

4) I see that the date you have entered as the start of the agreement is the 25/5/1995. What was the last date that you made any payment to MBNA?

5) Did you send your CCA request to MBNA by Recorded Delivery? If not re-send it to MBNA and remind them of the following:
A. The debt was already in dispute -if it was
B. The agreement cannot be 'cancelled' without certaiun procedure being followed
C. I would also copy your letter to Restons to MBNA

Quote: (from Restons letter)'They further add that my liability under the account is now determined by the judgement awarded in favour of MBNA.'

ONLY if Judgement has been obtained correctly!

As always

Best wishes to all

Dougal

The opinions and views expressed here are my own, it is always essential to seek Professional Legal Advice

[neeskens]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Hi again.

Many thanks once again for you response Dougal. This is very much appreciated.

As well as sending a second request to MBNA for a copy of the CCA, I also sent them a Subject Access Request with the £10 P.O. as you advised.

This should hopefully set the cat amongst the pigeons as they are also required to provide transcripts of phone conversation!

1.I have not received a default notice from MBNA or their representatives.

2. I have yet to file any documents with the court as I am still waiting for a response from MBNA.

3. Agreed

4. I made a payment of £1.00 elecronically on Friday as I do every month.

Further observations and advice appreciated.

Best wishes to all out there

Neeskens

[frisp]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Have you sent the SAR for all data on all systems to MBNA copy to Restons as you will need copies of all pertinent docs if you want to try to overturn the judgment.

[Dougal16T]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Hi again.

Many thanks once again for you response Dougal. This is very much appreciated.

As well as sending a second request to MBNA for a copy of the CCA, I also sent them a Subject Access Request with the £10 P.O. as you advised.

This should hopefully set the cat amongst the pigeons as they are also required to provide transcripts of phone conversation!

1.I have not received a default notice from MBNA or their representatives.

2. I have yet to file any documents with the court as I am still waiting for a response from MBNA.

3. Agreed

4. I made a payment of £1.00 elecronically on Friday as I do every month.

Further observations and advice appreciated.

Best wishes to all out there

Neeskens

1.I have not received a default notice from MBNA or their representatives.

2. I have yet to file any documents with the court as I am still waiting for a response from MBNA.

4. I made a payment of £1.00 elecronically on Friday as I do every month.

Neeskens

Good evening,

As far as point 1 is concerned this is certainly good grounds for a set aside, due to non-compliance with the CCA - in any application for a set aside it will be up to MBNA/Restons to prove to the DJ that they did send you such notice and that you have received it. It is not sufficient for them to claim that by sending it they knew you would receive it!

The fact you have yet to file at Court may now be irrelevant, the question is have you received from the Court any notice that an application for 'summary judgment' has been made, by MBNA/Restons, or did the original notice from the Court specify that if you did not respond within a certain period/by a certain date then judgement would be entered against you? The latter is very unlikely.

Are MBNA accepting your payments, and if so which account are they being credited to? Is it to the same account as your original loan?

I beleive that if MBNA are accepting your payments this may create a contract between you and MBNA. If it can be shown that these payments are in payment of your original agreement then this may be sufficient for a strike out application.

Any thoughts anyone??



As always

Best wishes to all

Dougal

[neeskens]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Thanks again Dougal for your observations.

The payment is beig made to the credit card account which the balance transfer came from with the 0% APR inducement.

Apart from the CCJ, I have on only recieved from Northampton CC advice that Norwich CC will be dealing with thie summary judgement. To date no formal communication from Norwich CC to confirm this.

In any case this is nowhere near my home. Presumably I can request it be heard nearer to my home? I believe that others have requested this with success.

Your thoughts and observations are welcomed.

As always

Best wishes to all

Neeskens

[Dougal16T]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Good morning,

This is how I see things as at today:

1. You have problems paying
2. MBNA write to you and tell you that they will take to Court if you do not pay BUT no default notice is issued by MBNA
3. No arrangement is made between yourself and MBNA to pay 'reduced payments'
4. The debt is passed to Restons for collection
5. Restons write to you and tell you they will take you to Court if you do not pay BUT there is still no default notice issued by anyone (MBNA or Restons)
6. No payment arrangement is made between yourself and Restons
7. Restons issue Court proceedings for non-payment and you receive (I presume -please confirm/deny this) notice of the proceedings
8. You either fail to file a defence in time or file a defence which is not acceptable to the Court
9. Restons make application to the Court for summary judgement
10. You receive notice of that application from the Court (I presume -please confirm/deny this)
11. You take no action and Summary Judgement is entered against you.
12. The credit card account that you are paying £1 per month is a different account number to the one for which judgement has been entered - is that information correct? The reason I ask is I cannot see why you are paying a credit card FROM which you transferred the balance to a 0% loan? Surely there should have been a NIL balance on the Credit Card


Finally (for now) I recommend the following:

Write to Northampton CC, quote the case ref number and ask for copies of ALL documents filed by MBNA and Restons in this case. There may be a small fee for this - make sure that you tell them that you do not have ANY copies of any of the papers that have been filed against you. You are entitled to these by law. SEND THIS LETTER FIRST CLASS RECORDED DELIVERY.

I also suggest that once you have these papers (not before) you make application to have the matter transferred to your local County Court, this is your right as a Defendant.

Then once we (all of us at Legal Beagles) have had a chance to see what has happened we shall be able to suggest the next steps to possibly getting this matter set aside.


Just read this and needed to add it to this thread: apologies to those who have already seen it...!!

A landmark legal victory could open the floodgates for millions of people to take credit card companies to court, it is claimed.
Lynne Thorius is the first person to see her credit card debt of £8,000 wiped out in court after she was unfairly sold payment protection insurance (PPI)
Lender MBNA was trying to sue the mother-of-three, from South Shields, South Tyneside, for the outstanding balance on her Sunderland AFC-branded plastic.
The cleaning supervisor, 49, had paid thousands of pounds for the protection scheme over seven years despite never having asked for it
A judge ruled MBNA had breached the Consumer Credit Act, partly because the credit card provider earned commission from the insurance company for the policy it had sold, without telling Mrs Thorius.
In addition, MBNA failed to produce a signed copy of the credit agreement.
All previous attempts to get credit card wiped out over missold loan insurance have been settled out of court.
Because Mrs Thorius was the one being sued rather than the credit card company, the case went all the way to a judgment at Newcastle-upon-Tyne County Court last week.
Floodgates to open?
The claims management firm that successfully defended Mrs Thorius says: "MBNA acted in a disgusting manner. It harassed this woman at all hours of the day and night to force her to pay for something she never even asked for.
"Now Lynne has won, the floodgates could open for millions of other people.
"It will change the way banks lend money and issue credit cards."
Mrs Thorius says: "It's a massive relief for myself and my family.
"MBNA treated me appallingly from start to finish. I ticked 'no' on the PPI option but it applied it to my account anyway.
"When I had my hours cut at work from full-time to part-time and started to struggle to pay the bill, MBNA started calling me three or four times a day, even as late as 9.30pm or 10pm. Someone even said it would repossess my house."
Mrs Thorius was first issued with a card in July 2002 with a limit of £1,500. She used it to pay bills and buy gifts for family and friends, but before she knew it, she was close to the card limit, which was gradually increased to a whopping £7,000.
Claim rejected
Mrs Thorius, who was paying £20-£30 a month in PPI for seven years, even tried to make a PPI claim when her hours at work were cut but she was turned down flat.
An MBNA spokesman says: "The judgment went against MBNA for a number of reasons, in principle because the deputy district judge felt that MBNA had not on this occasion provided the appropriate documents to the customer and as such was not able to rely on the clauses MBNA would ordinarily seek to rely on in these cases.
"The case is a county court case and each case is decided on its own merits and on the factual circumstance of each case.
"This does not set any legal precedent."


Best wishes to all

Dougal

[neeskens]

Re: Defence required for defending CCJ taken out by MBNA Europe prior to enforcement.

Good Morning to all.

Many thanks, once again, to Dougal.

Your outline of the state of play so far is generally on the button.

Your assumptions in Points 7 and 10 are correct.

However, point 12 is incorrect. The account I am paying £1 per month, and they are accepting, is the same account for which judgement has been entered.

I can also confirm that to date I have received no copies of documents filed by MBNA/Restons relating to this case. I have also yet to receive a copy of the true CCA from MBNA.

Apart from the judgement, I have only received a letter from Northampton CC advising that this case was to be passed on to Norwich CC for enforcement.

I have also yet to receive any correspondence from Norwich CC.

I will request all papers from Northampton CC as you advise.

Best Wishes to all

Neeskens