HELP. In Court vs Varde Investments/Hegarty LLP

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi folks,
Have received lots of info from IND. I hoped they weren't going to bother. I think they may have me by the proverbials here.

It is to do with a Virgin card which I did have in 2006, I used it for several years and I remember they wrote to inform me that they were increasing the interest by a heck of a lot. I saw in the small print that you could "opt out", so I rang them and said I wanted to opt out. I stopped using the card, fell behind with my payments and heard nothing. I had forgotten about it but it's all flooding back now.

IND have sent a copy of the original claim form, hundreds of pages of statements and a credit card agreement which has my signature as a tick in a box. It goes on to say that by ticking another box you "confirm it is a valid means of establishing the authenticity and integrity of my signature to this credit agreement. I understand that MBNA will hold this acceptance data on their files."
I remember clicking on these now.

I do not know how to proceed here.

Cheers.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi again,

Have recovered from my initial shock and have had a good look through all these documents.
There is a huge wad of statements, possibly every single statement I ever had They go up until the end of April 2010 with a payment date of 9th May 2010. I had been in arrears and missing payments according to several statements prior to this one. In the claim form it says that Varde bought the debt on 26 May 2010. I had been in dispute with Virgin regarding the levels of interest they kept applying and couldn't make the min payments. I gave them notice that I would cease payments until they could come to an arrangement with me as I was unable to pay. They kept ignoring me and sending statements but then I heard no more till Varde had me with a CCJ.
In amongst this wad of statements are these sheets with "separator page" typed all over them, I assume its an office thing. Anyway they have the date printed on them of 24/10/11. I sent a data request to them which they received on 21/10/11 along with £10 fee and large stamped addressed envelope. They never replied to my request but I think these statements were what they must have printed of at the time but then not sent them until now. They have sent no assignment notice or other notification letters. However with the covering letter it states that they are complying with the judges order and supplying a copy of the claim form, agreement and statements. I would have thought they should have something to state that Varde were involved etc. They are in default of my request for data but managed with the judges request. He didn't seem to ask for as much info as I thought IND would be required to give and I feel that IND have pulled a sly one here as although they have sent an enormous amount of documents, there's not much info in them and nothing about Heggarty, Varde or IND having any rights to this debt.

I am gonna have a good think about this but I'm leaning towards trying to put up a fight. I don't know if I have to go back to court or what happens after I file a defence. I still feel that I haven't been given enough information to make a good argument. I know lots of letters went back and forth to Virgin and would have thought that all such correspondence would have been relevant and should have been had by IND who should then have sent copies to me. I don't believe Virgin should have sold the debt on without telling me. I will have a good look through all my docs to see what I can find. I never looked for Virgin stuff before, Just IND, Varde and Heggarty.

Cheers.

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Default Notice - have you had got one or was one included in what they have now sent you?

If not then without one their claim can not proceed as it is unenforcable without a valid Default notice.

Can you scan and post up a copy of the agreement so we can see if its enforceable or not? Are the terms and conditions that came with it the original terms and condions?

What date was the last payment made on the account, was in more then 6 years ago (5 if you live in scotland)?

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Teaboy,

I don't appear to have been sent a default notice. On the last Virgin statements it says "This statement is also your notice of default sums". This is written on the back.
I have a scanner here somewhere, I will dust it off and try and do some scanning; if not I'll get busy typing.
Regarding the agreement they have sent. It is a print off of 13 pages of terms and conditions written in that microscopic text that we all know and love! There are 5 more pages with a ref no as its title. Underlined is the wording "Credit card agreement regulated by the consumer credit act 1974."
Next line. Your lender is MBNA and their address.
Then my name and address.
There are then 3 pages of more terms, the last two pages consist of just a box with a tick in it. One saying you agree to the CCA 1974; and the other saying that the tick is your signature.
The ref no is only on the first page. My name is not included on the pages with ticks and none of the pages except the first one have any ref details on them to show they are all part of the same document.
I will get scanning...

Cheers.

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Right no default notice means they can not enforce the claim in court

Sounds like the agreement they are using in court is a microfiche, is that so? if so then that is unenforceable too. As they are required to produce the original in court or a true copy the original with the terms and conditions contained within the same 4 corners of the agreement or clear reference made to the terms and conditions if seperate, which would connect the two. Also the fact you said it ws a virgin card, i assume this was taken out prior to MBNA buying Virgin's credit card services, if so then it would be headed VIRGIN and not MBNA on the agreement juts like the statements are headed VIRGIN when you first got the card.

I assmue the documents they have sent you is what they intend to rely on in court to back their claim?

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi,

Can't get my scanner to work so have took some pics of the agreement they sent.











Hope these links work. Theres loads more pages of terms and conditions but I haven't posted them.

Cheers

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Right so they are saying by using the tick as your signiture that you signed the agreement online - strict them to proof that you took the agreement out online and that a tick is your signiture. Now unless they have a record of your IP address and your IP address has not changed, which alot do change regularly, they will have a near impossible task of proving you were the one that took out the agreement. To be honest i think they may have just simple made upt his agreement in response to the judges "proof in plastic" comment.

Also when did you actually take out the virgin credit card and did you take it out online? I ask as am a little bemused as to why the agreement says your creditor is MBNA when the creditor was VIRGIN, although MBNA may have managed Virgins credit services it should still have the virigin logo or company name as creditor not MBNA. Plus am not sure when MBNA took over Virgin credit card services either but i suspect it was not till after you had taken out the agreement.

Anyway which ever way the agreement goes in court you still have the lack of any Defualt notice that will prevent the court enforcing their claim. Strcit them to proof you received the DN rather than as well as strict them to proof of postage, as all postage proves is they posted it, where in order to prove you received it means they would have to have sent to your where you siginiture was required in receipt of the letter which they will not possibly have since they always send second class UKMail.

Another thing i noticed about the agreement is there are not reference numbers at the bottom of the page, where if you goto Virgin credit cards online terms and conditions there is a clear reference number at the bottom of each page. Such numbers are generally used when filling in order to recongise the date the document was created or edited etc - Virgin terms and conditions.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
My internet is out of action till Saturday so posting this on a library pc. Bad timing or what?
Am starting to draft my defence. Do I need to do it on the claim form they have sent as the dates on that have all expired?
All the statements IND have sent have had the payment slip part omitted. However, on the back of one of them in the fine print it states that Virgin money is issued by MBNA .
I did have a virgin card and never had a problem with it for years. I got into dispute with them after they hiked the interest rates. I opted out via the phone returned my card and was told to pay the min payment at the old rate until the balance zeroed and then account would be closed. They never left the rates at the old level though and but I continued to pay the old amount and rang them each month. The last statement I had off them was in April 2010 with a payment date of May 10th. Varde appeared to have got this debt several days later. I never heard anything from Virgin or MBNA as to this debt being sold or assigned to Varde. Vardes credit licence lapsed just after this and was not renewed for several months. According to the OFT Varde appears to have changed hands or been sold during the period of lapsed licence but I am unsure of the relevance of this although the lady at FOA implied it could be very serious and constitute unlawful trading as apparently the debt cannot pass along in this way? I am unsure of whether to mention this in my defence though.
Is it perhaps best to be brief and state bullet point facts?
For instance, I would state that INDs, Vardes and Heggarty’s failure to provide a notice of assignment constitutes a complete defence as it is unenforceable in court without one?
I would do similar with the lack of statements whilst in a period of non compliance.
I would argue that Virgin sold this debt unfairly.
I would question the agreement they have sent as it just is a box with a tick and could be anything. I should see a genuine agreement.
I am hoping that any one of these points would be enough. I have contacted the courts but they are unable to tell me if IND have filed anything with them.
Any suggestions are most welcome. I will check back Sat when pc working again and post any updates. I think I will respond to the claims on the claim form, I don't know what info they have sent to the courts, if it is the same stuff they sent me then it's a bit ropey.
Cheers.

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
My internet is out of action till Saturday so posting this on a library pc. Bad timing or what?
Am starting to draft my defence. Do I need to do it on the claim form they have sent as the dates on that have all expired?
All the statements IND have sent have had the payment slip part omitted. However, on the back of one of them in the fine print it states that Virgin money is issued by MBNA .
I did have a virgin card and never had a problem with it for years. I got into dispute with them after they hiked the interest rates. I opted out via the phone returned my card and was told to pay the min payment at the old rate until the balance zeroed and then account would be closed. They never left the rates at the old level though and but I continued to pay the old amount and rang them each month. The last statement I had off them was in April 2010 with a payment date of May 10th. Varde appeared to have got this debt several days later. I never heard anything from Virgin or MBNA as to this debt being sold or assigned to Varde. Vardes credit licence lapsed just after this and was not renewed for several months. According to the OFT Varde appears to have changed hands or been sold during the period of lapsed licence but I am unsure of the relevance of this although the lady at FOA implied it could be very serious and constitute unlawful trading as apparently the debt cannot pass along in this way? I am unsure of whether to mention this in my defence though.
Is it perhaps best to be brief and state bullet point facts?
For instance, I would state that INDs, Vardes and Heggarty’s failure to provide a notice of assignment constitutes a complete defence as it is unenforceable in court without one?
I would do similar with the lack of statements whilst in a period of non compliance.
I would argue that Virgin sold this debt unfairly.
I would question the agreement they have sent as it just is a box with a tick and could be anything. I should see a genuine agreement.
I am hoping that any one of these points would be enough. I have contacted the courts but they are unable to tell me if IND have filed anything with them.
Any suggestions are most welcome. I will check back Sat when pc working again and post any updates. I think I will respond to the claims on the claim form, I don't know what info they have sent to the courts, if it is the same stuff they sent me then it's a bit ropey.
Cheers.

Heres the form you need for your defence - http://hmctscourtfinder.justice.gov....orms/n11_e.pdf

Yes keep each point of defence separated, that way its easier reading for the judge and the other side.

Also don't forget about the Default Notices, as if memory serves me right they were invalid or you had not received any, which in both cases is a complete defence.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
Got my draft defense here.

"I dispute the claimant’s claim because :-
The Defendant puts the Claimant to strict proof as to these and any Credit or other Agreements it relies on in this Claim and their terms; to any default Notice it seeks to rely on; to the alleged assignment between MBNA and itself; and to its alleged compliance with the pleaded Pre-Action Protocol.
The Defendant admits non-compliance but asserts that the Agreement had first been terminated by the non-compliance not of himself but instead of the Claimant, namely that:
1. The Claimant has failed to provide a true copy of the original contract between MBNA and the Defendant. I enclose a copy of what they have sent (I attach these marked "A1" and "A2"). These two microfiche documents could be anything, there is no information on them to connect them with either each other or to the Defendant. The failure of the Claimant to supply this documentation renders this Claim unenforceable in court and constitutes a complete and utter defence.
2. The Claimant has failed to provide a copy of Default Notices which it mentions in its Particulars of Claim. The Defendant has received no Default Notices or copies thereof from the claimant. The failure of the Claimant to supply this documentation renders this Claim unenforceable in court and constitutes a complete and utter defence.
3. The Claimant has failed to provide a copy of the Assignment between MBNA and itself. The failure of the Claimant to supply this documentation renders this Claim unenforceable in court and constitutes a complete and utter defence.
4. The Claimant was operating unlawfully between 13/11/2010 and 22/06/11and therefore had no legal right to pursue any claims. I have enclosed copies of Vardes Consumer Credit License (marked "B1" and "B2"). This is in breach of the Consumer Credit Act Section 28 and 29.
5. The Claimant appears to have changed hands or been sold during its time of lapsed licence and the rights of the original assignment cannot be passed along to the new license holder.
6. The Claimant has sent the Defendant hundreds of "statements" from a Virgin Credit Card. Every single one of these statements is incomplete and has vital information blanked out.
7. The Defendant attaches a copy of the request for documentation and of the Royal Mail Proof of Delivery and Signature of the IND representative who took delivery of the request. I have marked them "C1" and "C2".

Claim No XXXX

　
The Claimant is in clear default as to this request under Consumer Credit Act section 77d.d4(A) and section 78 s.s6 (A) they are not entitled to enforce the agreement whilst the default of the Defendants request remains in place.
8. Under Section 7 of the Consumer Credit Act 2006 the Claimant "must provide an annual statement of account, also if the account is in arrears, an arrears statement every six months". The Claimant has failed to do this or and therefore cannot enforce the agreement during the period of non-compliance.
9. In light of the above points, the Defendant respectfully asks the court to dismiss the Claimants claim and award costs to the Defendant.
10. The Defendant relies upon the provisions of the Consumer Credit Acts, which he argues are implied terms of any relevant agreements. The Defendant asserts that due to the Claimant’s prior breach of the said Agreement, at the date of the alleged Default on his part, no agreement was in force between himself, MBNA or the Claimant, and that accordingly no money is owed by him to either MBNA or the Claimant. Accordingly no interest can be owed as pleaded by the Claimant. The Defendant accordingly denies this or any other liability to the claimant."

I have repeatedly mentioned the complete defence line as I am hoping any one of them that works will be a result.
I am unsure whether to mention the Virgin card for which IND sent statements. As far as I knew the account was active but in dispute at the time of Vardes initial involvement. Is it worth mentioning that now as it didn't seem to be part of the POC on the claim form?

Any thoughts or comments are most welcome.

Cheers.

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Looks ok to me at a glance, though you need to refer to relevant legislation confirming it will be unenforcable for each point where you refer to such.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi,
Have added references were pos. Here it is

I dispute the claimant’s claim because :-
The Defendant puts the Claimant to strict proof as to these and any Credit or other Agreements it relies on in this Claim and their terms; to any default Notice it seeks to rely on; to the alleged assignment between MBNA and itself; and to its alleged compliance with the pleaded Pre-Action Protocol.
The Defendant admits non-compliance but asserts that the Agreement had first been terminated by the non-compliance not of himself but instead of the Claimant, namely that:
1. The Claimant has failed to provide a true copy of the original Consumer Credit Agreement between MBNA and the Defendant. I enclose a copy of what they have sent (I attach these marked "A1" and "A2"). These two microfiche documents could be anything, there is no information on them to connect them with either each other or to the Defendant. The failure of the Claimant to supply this documentation is in breach of the Consumer Credit Act 1974 (s77/8) and renders this Claim unenforceable in court and constitutes a complete and utter defence.
2. The Claimant has failed to provide a copy of Default Notices which it mentions in its Particulars of Claim. The Defendant has received no Default Notices or copies thereof from the claimant. The failure of the Claimant to supply this documentation is in breach of the Consumer Credit Act 1974 Section 87(1) and also of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 and renders this Claim unenforceable in court and constitutes a complete and utter defence.
3. The Claimant has failed to provide a copy of the Assignment between MBNA and itself. The failure of the Claimant to supply this documentation is in breach of the Consumer Credit Act 1974 (s77/8) and renders this Claim unenforceable in court and constitutes a complete and utter defence.
4. The Claimant was operating unlawfully between 13/11/2010 and 22/06/11and therefore had no legal right to pursue any claims. I have enclosed copies of Vardes Consumer Credit License (marked "B1" and "B2"). This is in breach of the Consumer Credit Act Section 28 and 29.
5. The Claimant appears to have changed hands or been sold during its time of lapsed licence and the rights of the original assignment cannot be passed along to the new license holder. This is in breach of the Consumer Credit Act 1974 (s29).
6. The Claimant has sent the Defendant hundreds of "statements" from a Virgin Credit Card. Every single one of these statements is incomplete and has vital information blanked out.

Claim No xxxxxxx

7. The Defendant attaches a copy of the request for documentation and of the Royal Mail Proof of Delivery and Signature of the IND representative who took delivery of the request. I have marked them "C1" and "C2".The Claimant is in clear default as to this request under Consumer Credit Act section 77d.d4(A) and section 78 s.s6 (A) they are not entitled to enforce the agreement whilst the default of the Defendants request remains in place.
8. Under Section 7 of the Consumer Credit Act 2006 the Claimant "must provide an annual statement of account, also if the account is in arrears, an arrears statement every six months". The Claimant has failed to do this and therefore cannot enforce the agreement during the period of non-compliance.
9. In light of the above points, the Defendant respectfully asks the court to dismiss the Claimants claim and award costs to the Defendant.
10. The Defendant relies upon the provisions of the Consumer Credit Acts, which he argues are implied terms of any relevant agreements. The Defendant asserts that due to the Claimant’s prior breach of the said Agreement, at the date of the alleged Default on his part, no agreement was in force between himself, MBNA or the Claimant, and that accordingly no money is owed by him to either MBNA or the Claimant. Accordingly no interest can be owed as pleaded by the Claimant. The Defendant accordingly denies this or any other liability to the claimant.

I hope that will do.
Cheers.

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi,
Have added references were pos. Here it is

I dispute the claimant’s claim because :-
The Defendant puts the Claimant to strict proof as to these and any Credit or other Agreements it relies on in this Claim and their terms; to any default Notice it seeks to rely on; to the alleged assignment between MBNA and itself; and to its alleged compliance with the pleaded Pre-Action Protocol.
The Defendant admits non-compliance but asserts that the Agreement had first been terminated by the non-compliance not of himself but instead of the Claimant, namely that:
1. The Claimant has failed to provide a true copy of the original Consumer Credit Agreement between MBNA and the Defendant. I enclose a copy of what they have sent (I attach these marked "A1" and "A2"). These two microfiche documents could be anything, there is no information on them to connect them with either each other or to the Defendant. The failure of the Claimant to supply this documentation is in breach of the Consumer Credit Act 1974 (s77/8) and renders this Claim unenforceable in court and constitutes a complete and utter defence.
2. The Claimant has failed to provide a copy of Default Notices which it mentions in its Particulars of Claim. The Defendant has received no Default Notices or copies thereof from the claimant. The failure of the Claimant to supply this documentation is in breach of the Consumer Credit Act 1974 Section 87(1) and also of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 and renders this Claim unenforceable in court and constitutes a complete and utter defence.
3. The Claimant has failed to provide a copy of the Assignment between MBNA and itself. The failure of the Claimant to supply this documentation is in breach of the Consumer Credit Act 1974 (s77/8) (you mean law of property act 1925 sec 136 - off top of my head) and renders this Claim unenforceable in court and constitutes a complete and utter defence.
4. The Claimant was operating unlawfully between 13/11/2010 and 22/06/11and therefore had no legal right to pursue any claims. I have enclosed copies of Vardes Consumer Credit License (marked "B1" and "B2"). This is in breach of the Consumer Credit Act (year) Section 28 and 29.
5. The Claimant appears to have changed hands or been sold during its time of lapsed licence and the rights of the original assignment cannot be passed along to the new license holder. This is in breach of the Consumer Credit Act 1974 (s29).
6. The Claimant has sent the Defendant hundreds of "statements" from a Virgin Credit Card. Every single one of these statements is incomplete and has vital information blanked out.

Claim No xxxxxxx

7. The Defendant attaches a copy of the request for documentation and of the Royal Mail Proof of Delivery and Signature of the IND representative who took delivery of the request. I have marked them "C1" and "C2".The Claimant is in clear default as to this request under Consumer Credit Act section 77d.d4(A) and section 78 s.s6 (A) they are not entitled to enforce the agreement whilst the default of the Defendants request remains in place.
8. Under Section 7 of the Consumer Credit Act 2006 the Claimant "must provide an annual statement of account, also if the account is in arrears, an arrears statement every six months". The Claimant has failed to do this and therefore cannot enforce the agreement during the period of non-compliance.
9. In light of the above points, the Defendant respectfully asks the court to dismiss the Claimants claim and award costs to the Defendant.
10. The Defendant relies upon the provisions of the Consumer Credit Acts, which he argues are implied terms of any relevant agreements. The Defendant asserts that due to the Claimant’s prior breach of the said Agreement, at the date of the alleged Default on his part, no agreement was in force between himself, MBNA or the Claimant, and that accordingly no money is owed by him to either MBNA or the Claimant. Accordingly no interest can be owed as pleaded by the Claimant. The Defendant accordingly denies this or any other liability to the claimant.

I hope that will do.
Cheers.

See in read above in red

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Thanks Teaboy,

Your help has been very much appreciated.

Heph.

[teaboy2]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Your welcome. Have you had any further news form the other side yet?