MBNA taking me to County Court - Urgent help needed

[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.

[CleverClogs]

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

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

[charitynjw]

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

Apologies if already sorted, but shouldn't a DN be 12 working days + 2 for post (4 if 2nd class)?

[teaboy2]

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

Apologies if already sorted, but shouldn't a DN be 12 working days + 2 for post (4 if 2nd class)?

Thats correct, i think we had already sorted that. Hard to remember when following other threads to though.

[mystery1]

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

Thats correct, i think we had already sorted that. Hard to remember when following other threads to though.

14 days.

M1

[Angry Cat]

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

Default notice defective.

(a) A default notice is required by s87(1) of the Act before the credit agreement can be terminated or enforced.

(b) By s88(1) of the Act the default notice must give the date by which the default can be remedied.

(c) By s88(2) of the Act [as amended by s14(1) of the Consumer Credit Act 2006 as from 1 October 2006] that date must not be less than 14 days after the date of service of the default notice.

(d) The 14 days period was also required by paragraph 3(c) of Schedule 2 of the Enforcement Regulations (as amended)

(e) A document dated (Monday) 07 September 2009 which purported to be a default notice under s87(1) of the Act was posted to the Defendant by the Claimant. It is to be inferred that it was posted on (Monday) 07 September 2009.

(f) By s7 of the Interpretation Act 1978 a posted document is deemed to have been served at the time when it would be delivered in the ordinary course of post.

(g) By case law 14 days in the section means 14 "Clear Days".

Finally, MBNA out their template Default Notices by 2nd class contract mail!

[Angry Cat]

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

Incidentally, I seem to recall a few years back that MBNA got into a little hot water, so to speak.
Re: their securitization of debt via the RoI...
whilst claiming tax relief in the UK

[charitynjw]

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

14 days

Is this still applicable?

1. Interpretation Act 1978, Section 7: -

With effect from 16 April 1985 the Practice Direction issued on 30 July 1969 is hereby revoked and the following is substituted therefore: -

1. Under S7 of the Interpreation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the course od post was effected: -

a. in the case of first class mail, on the second working day after posting.

b, in the case of second class mail, on the fourth day after posting.

"Working Days" are Monday to Friday, excluding any Bank Holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. The direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

Dated 8 March 1985
J R BICKFORD SMITH Senior Master
Queens Bench Division.

[Angry Cat]

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

14 days

Is this still applicable?

1. Interpretation Act 1978, Section 7: -

With effect from 16 April 1985 the Practice Direction issued on 30 July 1969 is hereby revoked and the following is substituted therefore: -

1. Under S7 of the Interpreation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the course od post was effected: -

a. in the case of first class mail, on the second working day after posting.

b, in the case of second class mail, on the fourth day after posting.

"Working Days" are Monday to Friday, excluding any Bank Holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. The direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

Dated 8 March 1985
J R BICKFORD SMITH Senior Master
Queens Bench Division.

As far as I am aware, unless one comes across an extremely unfair judge.

However, Goode made the following notes:

Not Less than 14 days after In calculating the minimum period specified by sub-s(2), '14 days' means 14 clear days, excluding the day on which the notice was served and the day on which the creditor proposes to take the steps specified in the notice: see Re Railway Sleepers Supply Co Ltd (1885) 29 ChD 204; R v Turner [1910] 1 KB 346; Re Hector Whaling Ltd [1936] Ch 208; Carapanayoti & Co Ltd v Comptoir Commercial Andre et Cie Sa [1972] 1 lloyd's Rep 139.

Service of Default Notice This may be done by post or personal delivery: CCA 1974, s 189(1). As to what constitutes an effective posting or delivery, see CCA 1974, s 176(2)-(5). If there is more than one debtor, a default notice must be delivered to each: see CCa 1974, s 185(1)(a).
A notice served by post is deemed to have been served at the time when it would be delivered in the ordinary course of post: Interpretation Act 1978, s 7, (41 Halsbury's statutes (4th edn) (Reissue) 989). If more than one debtor must be served (above) it appears the 14-day period specified in sub-s (2) would run only from the latest service; the creditor would, therefore be wise to ensure (a) that all such notices as served so far as possible simultaneously and (b) that if a date is specified in the notices it is more than the statutory minimum of 14 days after the date on which he hopes that all the services will be effected.

[GoldenEagle]

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

As far as I can remember I never received the DN... I have looked through all my bags. Also, never received the Termination or Assignment Notice. Is this of any significance? also, they have not sent any statement prior to 2005. One more question, should I post terms and conditions on the forum or are they bog standard?

Anyway more urgently I need to let them know which docs I want to inspect the original of. Which one should I ask to see?

[charitynjw]

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

As far as I can remember I never received the DN... I have looked through all my bags. Also, never received the Termination or Assignment Notice. Is this of any significance? also, they have not sent any statement prior to 2005. One more question, should I post terms and conditions on the forum or are they bog standard?

Anyway more urgently I need to let them know which docs I want to inspect the original of. Which one should I ask to see?

Post them anyway, GE, as T & Cs always come in handy for reference purposes.
If they're already on file, I can assure you that Admin will dispose of them with due care & consideration.:whistle:

[Angry Cat]

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

As far as I can remember I never received the DN... I have looked through all my bags. Also, never received the Termination or Assignment Notice. Is this of any significance? also, they have not sent any statement prior to 2005. One more question, should I post terms and conditions on the forum or are they bog standard?

Anyway more urgently I need to let them know which docs I want to inspect the original of. Which one should I ask to see?

Please, do not post up on the open forum copies of the original T&C's!

[charitynjw]

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

Ooops - sorry AC, & apologies to GE.

I must have been awol when that info was given out.

:fish: (me)

[Angry Cat]

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

Ooops - sorry AC, & apologies to GE.

I must have been awol when that info was given out.

:fish: (me)

It is the pursuers remit to provide the correct issue T&C's.
Not vice versa