Link MBNA Claim Urgent Help needed please!

[Angry Cat]

Re: Link MBNA Claim Urgent Help needed please!

id say its improperly executed

id say per HHJ Platts in HFO v Patel on Appeal, that the Claimant must plead for an enforcement order

Id say if it doesnt plead then it cant have, per Judge Platts

PT, a link to HFO V Patel on Appeal, would be of benefit to the OP:beagle:

[gforce2k]

Re: Link MBNA Claim Urgent Help needed please!

thanks pt2537
how is the agreement improperly executed?
and how should i put that into a defence?

something like this?

Agreement
1) The agreement cited in the claimant's particulars of claim is improperly executed in that it is....."
2) As per HHJ Platts in HFO v Patel on Appeal, the Claimant must plead for an enforcement order.
3) As per Judge Platts, if the claimant does not plead then it cannot have (is not entitled to) an enforcement order and can not legally enforce said agreement (or debt?)

apologies for my ignorance if above misses the point you were making somehow or is too simple.

gf2k

[Angry Cat]

Re: Link MBNA Claim Urgent Help needed please!

Re: the DN, 1 day short could be viewed as de minimus by the judge?
But the cat is out of the bag: MBNA always sent their DN's out by contract mail;
no copies kept, thus the reason why they will always provide template copies of same.

[gforce2k]

Re: Link MBNA Claim Urgent Help needed please!

So the DN defence is good to go?
should I put them to proof that a good DN was delivered without admitting or denying anything?
or go ahead and formally admit receipt, citing the relevant case law regarding postal delivery (Bickford-Smith?) and also my written date of receipt (referring to harrison v link/mbna who also kept written notes of delivery dates but not envelopes I think?).
if the latter should I include a copy of the letters showing the delivery dates as my proof?


Also, I can't find HFO v Patel anywhere so if there is a link I'd appreciate it.

[pt2537]

Re: Link MBNA Claim Urgent Help needed please!

HFO v patel is unreported.

It is a case i have thanks to a solicitor who i know who had the case sent to him.

[gforce2k]

Re: Link MBNA Claim Urgent Help needed please!

id say its improperly executed

id say per HHJ Platts in HFO v Patel on Appeal, that the Claimant must plead for an enforcement order

Id say if it doesnt plead then it cant have, per Judge Platts

PT what should I state makes the agreement improperly executed?
- lack of all prescribed terms? (seems to have them)
- illegibility?
- on 2 sheets with different refs?
- another reason?

what part of s127 do I refer to?

[mystery1]

Re: Link MBNA Claim Urgent Help needed please!

Hi M1, slightly confused, are you saying I should try or are you being sarcastic? 'don't drop the soap' is a prison reference isn't it?
I think I'd understand if my handwritten note went against me i.e. 1 day less than the 4 day 2nd class delivery not the 1 more that it is.

It seems supportable that the DN is bad as either way you look at it can be argued that it left less than 14 days to remedy. Surely my handwritten note isn't even necessary to argue this as 2nd class is deemed 4 days so it in fact further supports the argument? or am I missing something?:

Actual delivery
The DNs were both dated 08/06 arrived 5 days later on 13/06 (handwritten note) leaving 12 days to the remedy date 25/06.

Assuming 2nd class (4 days) as per Bickford-Smith
Even if my hand written notes are contested it seems accepted that MBNA send out DNs 2nd class which is legally seen as 4 days making the date of receipt 12/06, leaving 13 days to remedy.

On top of this the Link NOA states assigned 19/06/09 so 6-7 days after I received the DNs.

AngryCat you seem to think I am correct, do you think I should mention the received DN and handwritten note or put them to proof?

Yes i think you should use the bad default notice but no you shouldn't use the template regarding Bickford-Smith. You know when you got it and it was too late in terms of statute and you didn't get the 14 clear days statute demands. How/when it was sent is not relevant if you know when you got it especially if you wrote the date on your copy.

Bickford-Smith = deemed served on the 12th but you didn't get it then you got it on the 13th. Imagine it had been the 11th you wrote on it would you still expect the judge to agree it was served on the 12th ?

The soap reference is a reference to court. I.E. lying in court isn't a good idea just ask Tommy Sheridan. This was not really directed at yourself.

M1

[gforce2k]

Re: Link MBNA Claim Urgent Help needed please!

Thanks M1,

Yes i think you should use the bad default notice but no you shouldn't use the template regarding Bickford-Smith. You know when you got it and it was too late in terms of statute and you didn't get the 14 clear days statute demands. How/when it was sent is not relevant if you know when you got it especially if you wrote the date on your copy.

Which template / case reference should I use?

Bickford-Smith = deemed served on the 12th but you didn't get it then you got it on the 13th. Imagine it had been the 11th you wrote on it would you still expect the judge to agree it was served on the 12th ?

That's exactly what I meant when I said: "I think I'd understand if my handwritten note went against me i.e. 1 day less than the 4 day 2nd class delivery not the 1 more that it is."

The soap reference is a reference to court. I.E. lying in court isn't a good idea just ask Tommy Sheridan. This was not really directed at yourself.

That's why I was confused, never intended to misrepresent just wanted clarification of best way to put these facts in my defence

[Garlok]

Re: Link MBNA Claim Urgent Help needed please!

Hi chrissiej,

I feel that I do have to respond to your post no.23 above. There are those of us who have been down every route they can think of to come to some resolution over their difficulties with the original creditor only to have the pack of wild animals loosed upon them. This stage of our troubles lasted over two years with one weekend consisting of over 100 threatening phone calls (our log in total is over 800 calls) the next weekend 80 calls and please note at this time all of our accounts were fully up to date.

At this time following a really serious unlawful incident I was advised that on medical grounds we should get professional help and we turned to the law. Having once spoken with a properly qualified expert in the field, we were told to stop paying, the accounts were not enforceable (and still aren't) therefore the law provides that the creditor gets nothing unless they go to court and win (which is highly unlikely). Even this stage has taken another 18months or so with 15DCAs (now 16 sorry) and three solicitors practices all operating outside the law and the OFT guidelines and regulations.

We were advised that most of these "arrangements" which are bandied around outside a proper legal framework do fail leaving the debtor in more debt than when they first started. Take a look around various forums on the net and you will see failure after failure of all sorts of schemes. I would also advise a very serious look at tomlin orders and what they really are before making any arrangements in that direction.

regards
Garlok.

[chrissiej]

Re: Link MBNA Claim Urgent Help needed please!

Thanks Garlok,

I haven't yet had any copies of my agreements back - the time limit has not yet expired - so I don't know if they would be enforceable or not. I assume - though I might be wide of the mark - that the older the agreements are the less likely it is that they would be enforceable.

I have agreement from most to stop charging interest and penalty charges and am paying them the amount I can afford (calculated with the help of National Debtline) every month. I felt this was the responsible thing to do and would have carried on paying year after year before I found this site.

I have read so many things on this site which have been helpful, others which I must admit have left me confused. I need to re-read everything on the enforceability of agreements and decisions made by the Courts ready for when the copies of the agreements start landing on the doormat......!!

:beagle:

[gforce2k]

Re: Link MBNA Claim Urgent Help needed please!

Can someone look over my amended defence urgently please?

I've tried to incorporate everything but looks overwordy to me.
(the points marked XX are from PT, I just need to move the numbers around before faxing)

Happy to incorporate any last minute changes/suggestions but I must put it in today (ideally in the morning if possible)

e.g. Would it help to mention Harrison or some other relevant case law? etc.

--------------------------------------------------
AMENDED DEFENCE

1) I XXXXXXXXXXXXXXXX make the following statement as my defence to the claim made by LINK FINANCIAL LIMITED.

2) Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

3) I dispute the full amount claimed by the claimant and I do not recognise the Claimant's Claim in any way for the following reasons.

Agreement
4) The Claimant states that the claim relates to a credit agreement regulated by the Consumer Credit Act 1974 entered into by the parties, but no copy of the contract or documents alleged to constitute the agreement has been attached or served with the particulars of claim, therefore I have no knowledge of the agreement cited by the claimant in the particulars of claim. This is in breach of the requirements of Practice Direction 16 section 7.3. "Where a claim is based upon a written agreement a copy of the contract or documents constituting the agreement should be attached or served with the particulars of claim".

5) Additionally, by not attaching or serving a copy of the alleged agreement the claimant has failed to provide me with sufficient information to deal with the claim. This is in breach of Practice Direction - Protocols section 3.1(a) "not having provided sufficient information to the defendant".

6) Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court.

7) I therefore put the claimant to strict proof thereof and request disclosure and the production of a verified and legible copy of the Agreement cited in their particulars of claim.

8) On 09/02/2009 the Defendant did request information from MBNA EUROPE BANK LIMITED (hereinafter MBNA) pursuant to section 78(1) of the CCA and on 23/03/2009 the Defendant did receive from MBNA, the original creditor, a copy of some generic credit card terms and conditions and illegible copies of two unrelated pages of terms referred to by MBNA as the ‘original agreement’.

9) In the letter received on 23/03/2009 and referred to in [8] MBNA recognised the illegibility of the copies and inferred their inability to supply an original document with the statement “we appreciate the copy of the original document is not very clear but it is the best copy we can provide”.

10) It is denied by the Defendant that the document referred to in [8] represents a regulated credit agreement and executed in accordance with section 61 of the CCA, or a regulated credit agreement at all. Nor does it represent a document containing the minimum prescribed terms being a multiple agreement as defined in section 18 of the CCA and pursuant to section 127(3) of the CCA.

11) If the Claimant intends to rely on the same documents referred to in [8] or further copies of same then the Defendant requests that the court use its powers under section 142 of the CCA to determine the rights of the parties. The Defendant respectfully asks the Court under section 142(1)(b) of the CCA to make a declaration that the Claimant may not enforce this agreement.

XX) The agreement cited in the claimant's particulars of claim is improperly executed.

XX) As per HHJ Platts in HFO v Patel on Appeal, the Claimant must plead for an enforcement order.

XX) As per Judge Platts, if the claimant does not plead then it cannot have (is not entitled to) an enforcement order and can not legally enforce said agreement

Default
12) The claimant cites in the Particulars of Claim “by 30/05/2009 a default was recorded”.

13) I therefore put the claimant to strict proof thereof and request disclosure and the production of a verified and legible copy of a Default Notice or ‘record of Default’ cited in the particulars of claim.

14) If any such notice of default or Default Notice that may be provided is found to demand the whole balance as remedy it should be deemed contrary to the regulating legislation as this defendants’ ability to remedy the default will have been removed unilaterally.

15) Any Default Notice provided should provide the requisite number of days from receipt to remedy or should be deemed bad or non-compliant therefore making the debt unenforceable.

16) The Defendant did receive a Default Notice from MBNA which was dated 08/06/09 was received on 13/06/09 and gives a remedial date of 25/06/09. This is 2 days short of the minimum 14 calendar days required under the Consumer Credit Act 1974.

17) MBNA issued this Default Notice contrary to s87 of the Consumer Credit Act 1974 demanding the full amount of the alleged debt, when the Regulations stipulate the amount to remedy the default would only be the arrears minus any counterclaimed damages or charges.

18) Therefore the Default Notice referred to in [16] is invalid and the Claimant brings his case to court without entitlement.

Assignment
18) The claimant cites in the Particulars of Claim a Notice of Assignment and states “the benefit of the debt has been legally assigned to the Claimant effective 19/06/2009”

19) This date of Assignment of debt stated by the Claimant occurred a full 6 days before the remedy date given in the invalid Default Notice referred to in [16] and was unlawful.

20) I therefore put the claimant to strict proof thereof and request disclosure and the production of a verified and legible copy of the cited Notice of Assignment and the Deed of Assignment.

Termination
21) The Termination on the back of an invalid Default Notice or without Termination Notice represents an Unlawful Rescission of Contract.

22) The cited contract was terminated without entitlement therefore the claimant brings his claim to court without entitlement.

24) I therefore put the claimant to strict proof thereof and request disclosure and the production of a verified and legible copy of the Termination Notice.

Harassment
25) The defendant suffered harassment for many months by the original creditor MBNA via telephone, mobile texts and doorstep collection agents. Calls were made from multiple sources, many times a day leaving messages from unrecognisable numbers with collection agents using threatening language.

26) The Defendant wrote to MBNA requesting further correspondence to be in writing only. MBNA wrote back in a letter received on 26/03/09 refusing this request.

27) Subsequent to the cited Assignment LINK FINANCIAL LIMITED started harassing the defendant via telephone.

28) It is further claimed that the claimant forms an unfair relationship by taking action without entitlement and seeking money where he has no entitlement and I ask the court to consider an order be made for relief under relevant provisions of the Act.

29) Consequently, I neither admit nor deny all allegations on the Particulars of Claim and request that, upon receipt of the documents requested in [7], [13], [20], [24] sufficient time is allowed for me to submit an amended defence and counter claim.

30) It is averred that no sums are due as provisions within the Act preclude any claim for unpaid sums where the Acts requirements are not complied with.

31) I believe the above statement to be true and factual to the best of my knowledge.

Yours faithfully,

-------------------------------

[gforce2k]

Re: Link MBNA Claim Urgent Help needed please!

Hi Mystery1,
would you have any advice for the above?
Apart from some re-numbering is it ok to go?
Thanks
gf2k

[mystery1]

Re: Link MBNA Claim Urgent Help needed please!

You'd be better with PT who is reading as he knows the English system as well as knowing the law better than me.

However what i would say is that you can't plead that the agreement is illegible and then say prescribed terms are missing, it's unenforceable etc as that then says you can read it. Either you can read it or you can't. Be prepared in court if the Judge says it's legible by all means but don't say i can't read it but it says ....

M1

[gforce2k]

Re: Link MBNA Claim Urgent Help needed please!

thanks M1, will have to go one way or anotheron legibility clearly, which way to go is the problem.

would you have any idea PT/QC/TMC/garlok/algee...?
Also any guidance in general on...

Defence
potential problem areas.
which bits ok/should I drop/change?

CPR/SAR
Link have only replied to my CPR 31.14/15 with the same poor copies of the original application, making excuses that they have requested the NOA etc. from MBNA but they are not in control of how long this will take.
They also sent a template Letter before action with the wrong date to the one we received.
As yet no reply to the SAR from MBNA themselve

Should I send additional letters (i.e. as over 11 days since CPR) to Link or some kind of application to the court?

Thanks,
gf2k

[gforce2k]

Re: Link MBNA Claim Urgent Help needed please!

PLEASE, anyone have any more advice at all?

I have to send this by 3:45pm latest.