MBNA taking me to County Court - Urgent help needed

[GoldenEagle]

Re: MBNA taking me to County Court - Urgent help needed

N265 came in last Friday... no Saturday but I had to leave on Sunday for a week's course. So, have only just digested or shall I say trying to the stuff they have sent. It shows they received my CCA request, Account in Dispute/Serious etc and Experto mentioning their bedmates Varde. DN and Assignment notice that I never received. Anyway I attached some of the docs here. I have till Monday to let them know what I want to see the originals of. What should I ask and do I say it with a form!!

BTW, they call Appn form the Credit Agreement

Re: MBNA taking me to County Court - Urgent help needed

I have seen an awful lot of thes case go through the courts in the last seven or eight years, and i can tell you that they rarely succeed.

The problem is that the courts are in favour of the creditor

Which, of course, they should not be - the courts should be impartial.

and if you are going for a technical defence you had better have all you i's dotted and your t's crossed.

Well, yes. One certainly should not have one's i's crossed - you'll see double that way.

As far as section 61 compliance is concerned, in 99% of cases all that is required is a signed document and a good argument that the rest of the prescribed terms(not the whole t snd Cs ) are either on the other side or were attached.
Usually they bring out a witness to veryfy that this would have been their normal practice. As said they do not have to show a true copy in order to enforce they only have to show that one would have been signed on the balance of probablitities.

But would that apply if the debtor could produce an original copy of the agreement which clearly shews that the prescribed terms were neither enclosed, printed on the reverse or attached?

Would their witness then be liable to be prosecuted?

Wacky Waksman's pp judgement in Carey seems to depend on the premise that no bank would stoop to uttering a forged or counterfeited document, yet we know that they have done.

Is it really such an onerous requirement to impose on a creditor that, if they wish to be repaid, they must produce the very document signed by the debtor rather than merely arguing that, on the balance of probabilities, the debtor would have signed such an agreement?

I have the distinct impression that, had Waksman been considering Shylock's claim, he'd have decided that, on the balance of probabilities, the merchant's blood should be considered to be freely given.

[GoldenEagle]

Re: MBNA taking me to County Court - Urgent help needed

Sorry for not mentioning particularised defence. I used the same heading as court papers had used. CAB solicitor was more green than I was - what a waste of years in Uni and money.

Anyway, on Friday came their N265 and the bumf. Nothing new their except Statements and some records with lots of codes. Their is no record of them sending CCA and no Termination Notice that I could see. Still going through it. I will need a lot of help and like to thank everyone for their time thus far.

[teaboy2]

Re: MBNA taking me to County Court - Urgent help needed

Morning all.

Right am reading the particularised defense as we speak. Along with doing what peter suggests, which i agree with. I have the following suggested changes too.

Paragrapth 9 - Add at the end Defendant stricts the claiment to proof of postage and service of the DN.

Paragraph 10 - Make reference to the harrison v link financial case, as harrison was harassed by mbna and the DCA that was attempting to collect so the harrison case is evidence that they have done it in the past to others and are likely to have harassed you along with being unreasonable too.

Paragrapth 11 - is regarding DN still and looks lost in space, you need to swap it with paragraph 10, that way it follows on from paragraph 9 which is about the DN

By the way it would have been useful if you had told us about the particularised defence earlier as it would have saved us all a couple of days discussing the embarressed defence.. Tut tut lol

Re: MBNA taking me to County Court - Urgent help needed

HI Jut read your defense

Something like the above could be used to particularise section 7 and 8 of your statement.

ALso the ammendments you mention (the 2004/1442) they didnt come into oppereation untill may 2005 so would not be applicable.

Also in my opinion you need to develop your DN argument include the summary judgement appeall (Brandaon) and say that the time limit is not de minimis( yes stretch the truth) it leaves the court open to argue the point and you never know the judge may not be fully informed and you may get away with it.
You need the info on delivery times for second class mail to beef your argument up a bit.

I think the story about how you were sold the agrement is ideal witness statement material, and illustrates how this could only be an application form.


Peter

Re: MBNA taking me to County Court - Urgent help needed

Sorry, couldn't resist but pot, kettle comes to mind LOL

However, very sensible advise re: costs...too many members submit an embarrassed defence prior to full disclosure!

HI Yes it was a failed attempt at irony on the wpelling.

Personally i would concentrate on the unenforceagility aspecxt of this, they can prove that there was an account, i dont think that will be an issue, an it sounds like they have all the paper work they need.
#However from what GE says this is a straightforward case of improper execution.

NO presctribed terms on aplication
No copy left
Also there may be an isue aboujt the way it was sold off company prmisses(have to look into tha)t.


AC since you have joined us, perhaps you could come up with an off the peg unenforceabiltiy defence we coud addapt, i am sure you must have gathered a few over the years, a had a collection myself but they got deleted.

Otherwise we can put one together ourselves, you know the kind of thing" "creditor to be put to strict proof of that a properly executed agreement was ever signed. Debtor maintains he was only ever given an application form to sign, and as far as he was concerned it was just an invitaion to treat and not an execuatable agreement.

Under the Consumer credit act all commertial agreements must be be properly executed, and if they are not they can only be enforced by an order of the ccourt."

Section 60 of the act states the form and content of the agreement.

Section 61 states that a properly executed agreement must contain the prescribed terms and be singed by both parties.

Section 62 states that if an agrement is signed by the lender and at that time the agreement it does not become an executed agrement, a copy must be left with the lender.

The Prescribed terms are contained within scheule 6 of the agrement regualtion 1553/ 1983 and in the case of a credit card agreement are;

creditl Limit, applid interst rate and repayment intervals and amount.

Section 65 of the act says that an agrement that is not properly executed cannot be enforced without an order from the court.

Section 127(3) states that an enforecement order cannot be granted by the court if the requirement of section 61 are not met and the prescribed terms are not contained within the signature document.

Section 127(4) states that an enforcement order cannot be made unless the requjirements of section 62 are met and a copy agrement is left with the lender at the time of signing."

That sort of thing oh and mention Wilson., and harrison


Peter

[GoldenEagle]

Re: MBNA taking me to County Court - Urgent help needed

No we just have to exchange disclosures and disclosure statement.

After this we have 14 days to request if we wish to inspect the originals.

Then we have to exchange witness statements. Please see the pdf in my 1st post for whole shooting match t/table. Property is in joint names with my marriage partner.

[teaboy2]

Re: MBNA taking me to County Court - Urgent help needed

Their solicitor at the P/Hearing gave me Appn form, DN, Notice of Assignment and T&Cs. Judge ordered decent copy of T&Cs which I received and ack'ed. At the same time mentioned that I never received any in response to CPR31.14. BTW, hearing is not till June. So, I thought SAR may come in handy to see what charges/fees pertinent dates etc it brought to light.

Just for record, I submitted Embarrassed Defence to N'ton Bulk Centre originally and at P/hearing was ordered to submit Particularised defence which I did - attached here. Would I do another Embarrassed Defence - not trying to undermine you but just want ensure I have given you all info. Please let me know if I have missed anything.

Haven't looked at the defence you attached yet since it getting late and i'll be going to bed soon. So will look at that in the morning.

But can you clarfiy that the monday deadline is for submitting a defence for a hearing in june and if the particularised defence was submitted for that june hearing prior to mondays deadline?

As for the SAR if you which to go ahead with it, your best sending it to MBNA or one to MBNA and and one to Varde.

[GoldenEagle]

Re: MBNA taking me to County Court - Urgent help needed

Their solicitor at the P/Hearing gave me Appn form, DN, Notice of Assignment and T&Cs. Judge ordered decent copy of T&Cs which I received and ack'ed. At the same time mentioned that I never received any in response to CPR31.14. BTW, hearing is not till June. So, I thought SAR may come in handy to see what charges/fees pertinent dates etc it brought to light.

Just for record, I submitted Embarrassed Defence to N'ton Bulk Centre originally and at P/hearing was ordered to submit Particularised defence which I did - attached here. Would I do another Embarrassed Defence - not trying to undermine you but just want ensure I have given you all info. Please let me know if I have missed anything.

[Angry Cat]

Re: MBNA taking me to County Court - Urgent help needed

OK try and improve the spelling

Sorry, couldn't resist but pot, kettle comes to mind LOL

However, very sensible advise re: costs...too many members submit an embarrassed defence prior to full disclosure!

[Celestine]

Re: MBNA taking me to County Court - Urgent help needed

*FAINTS*

:grouphug:

[teaboy2]

Re: MBNA taking me to County Court - Urgent help needed

Thanks all for your time. I really appreciate it although it is doing my head in. Just to clarify:

History: I was approached at Motorway Services in June 2001 and was invited to fill in an application. I didn't think I was going to get a CC but this person said 'no harm in applying.. you never know'. I only scribbled a signature not the one I use on the Card... Just a short one.

Now to Varde fiasco: I sent a CPR31.14 requesting Agreement, Deed of Assignment, DN, Termination Notice and Statement of Account. They sent nothing

However, at the Preliminary Hearing their solicitor produced everything. I was handed over everything except the Termination Notice and the Statement of Account. solicitor showed a couple of sheets of something when I said the quality was bad. Judge thought it was a sort of legible and asked the solicitor to send better copied of Terms and Conditions which the judge thought could be better. They sent these. I phoned to acknowledge receipt and mentioned that I had not received any in the post and the lady there said she had personally posted things to me twice.

What documents exactly did the judge order the solicitor to send better copies of, and what exactly was it that you received as what you stated above seems to say you acknowleged receipt but then went on to mention during that same phone call you had not received any in the post.? So can you clarify what the documents the judge ordered better copies off and what you had actually received as a result of the order by the judge.

My deadline is Monday coming.

On the subject of disclosure it states: 'The parties shall give each other Standard Disclosure of documents by serving copies together with a disclosure statement'

And one more thing. I had been paying £1 per month and MBNA had never sent it back but sold the Debt on and then on and ... finally Varde took me to court. Is this not unfair under FSA guidelines? Don't worry about that for now, let me and peter discuss that.

Remember your defense is at the moment a embarressed defense so there is no need to mention everything, especially something that would show you acknowledge there is a debt. Which may result in the judge ruling against you, purely on acknowledgement of the debt alone.

Another question where do I send SAR to and are there any templates? No point in sending a sar to anyone when your deadline is monday as they are allowed 40 days to respond to a sar, so you would never get it in time for monday. Plus the CPR31.14 covers all documents you need disclosing.

See above.

I will admit though that if £1 a month is all you can afford to pay each month, then a judge is never going to order you to pay more than you can afford and will likely keep it at 1 pound per month, which would mean Varde will have not benefited form the claim at and will have simply abused the court process knowing the court would only order you to pay what you can afford, that being 1 pund a month - Assuming you have not got any property that they could put a charging order on, that is?

[GoldenEagle]

Re: MBNA taking me to County Court - Urgent help needed

Thanks all for your time. I really appreciate it although it is doing my head in. Just to clarify:

History: I was approached at Motorway Services in June 2001 and was invited to fill in an application. I didn't think I was going to get a CC but this person said 'no harm in applying.. you never know'. I only scribbled a signature not the one I use on the Card... Just a short one.

Now to Varde fiasco: I sent a CPR31.14 requesting Agreement, Deed of Assignment, DN, Termination Notice and Statement of Account. They sent nothing

However, at the Preliminary Hearing their solicitor produced everything. I was handed over everything except the Termination Notice and the Statement of Account. solicitor showed a couple of sheets of something when I said the quality was bad. Judge thought it was a sort of legible and asked the solicitor to send better copied of Terms and Conditions which the judge thought could be better. They sent these. I phoned to acknowledge receipt and mentioned that I had not received any in the post and the lady there said she had personally posted things to me twice.

My deadline is Monday coming.

On the subject of disclosure it states: 'The parties shall give each other Standard Disclosure of documents by serving copies together with a disclosure statement'

And one more thing. I had been paying £1 per month and MBNA had never sent it back but sold the Debt on and then on and ... finally Varde took me to court. Is this not unfair under FSA guidelines?

Another question where do I send SAR to and are there any templates?

[teaboy2]

Re: MBNA taking me to County Court - Urgent help needed

It may be as well to mention section 62 and the fact that no copy was given( well there wouldnt be if it was just an invitation to treat/ application) this invokes unenforceabiltiy under section 127(4) in a similar manner.
You could also use Harison as authority on this, since it was this breach that did it for him.

Peter

Will add it to the same paragrath alon with mention to harrison case

OK now added it to the defence in above post. Included a note that harrison case also centred on an alleged MBNA credit card agreement. Meant as a hint for the judge

Re: MBNA taking me to County Court - Urgent help needed

It may be as well to mention section 62 and the fact that no copy was given( well there wouldnt be if it was just an invitation to treat/ application) this invokes unenforceabiltiy under section 127(4) in a similar manner.
You could also use Harison as authority on this, since it was this breach that did it for him.

Peter