MBNA taking me to County Court - Urgent help needed

[teaboy2]

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

HI
No the way it works is that the judge has to grant an enforcement orer under section 65 if the agrement has been improperly executed.
The fact that the agrement has been improperloy executed is prety much assured, sectin 65 allows the judge to use his discresion under section 127(1) on the sanction to apply to the creditor, usually this is nothing and the enforcemnt order is just granted, but in a prescribed terms breach section 127(3) prenvents this and the agrement is unenforceable.

So the worcding should be something like "Under the CCA a breach of section 61 where the prescribed terms are not contained within the sigature document, section 127(3) prevents an enforcement order being issued under section 65.

Peter

Will change the above to the wording you suggested peter - thanks

[Guest]

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

OK try and improve the spelling

[teaboy2]

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

OK try and improve the spelling

Lol am pretty sure GE can correct the spelling and any grammar mistake prior to submiting the defence.

[Guest]

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

[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

[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

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?

[Celestine]

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

*FAINTS*

:grouphug:

[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!

[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.

[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

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.

[Guest]

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

[Guest]

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

[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