Hi Mould Thanks for your considered response/questions which I will need some time to pull answers together to. This will also be my attempt at my defence. However, in looking at some of the other paperwork, I note that the CCA is virtually correct except for the fact that it does not have a Credit Limit on the page I signed. The Credit Limit is on page 2, along with a reference number. Very strange. Would this fact alone be enough to show that the CCA is not compliant with section 127(3) of the Consumer Credit Act 1974 (it was taken out in Aug 2005)? Thanks JG

MBNA was OC then it went to Varde/Experto and now with Aktiv You are correct in that they are relying upon statutory Notice of Default served by MBNA in their POC; no wonder they want to get it right for the Courts

Hi Mike_Hawk Not sure what your question is? Could you rephrase? JG

HL

That's also what I am wondering and whether anybody knows of any other such incidents? Surely, someone must have had a similar experience?

Wow - you guys are quick!! Yes, I have the original DN from 2009 The dates are the same on both the original and the new DN (Service date = 9th Oct; rectification date = 26th Oct) Differences = original was asking for full payment as the credit agreement allowed for it; new one is asking for a reduced amount (supposedly the arrears) as well as informing me of the account balance, which corresponds with the amount demanded in the original. Plus there are some obvious differences in layout, etc. JG

Hi all I have had a claim progress against me for an old CC debt and I have just received the reply to my defence from the Claimants solicitors. In this reply, they have included a DN that is different to the one they sent me back in 2009. This new one looks to be compliant, whereas the original DN had (1) demanded full repayment of debt and (2) did not allow me full time to repay. Also, the original creditor never actually sent me a Termination Notice but they did sell the debt to another DCA prior to the date on their DN and that DCA then contacted me (again prior to the date on the DN) to arrange payment. So my question is: how does the fact they are producing a different DN in court work? What does this mean to their Claim and my Defence? Thanks JG

Hi all It's been some time since I've been on the forum - as it has helped me so much with so many issues I was facing last year - but I now need to revisit. And it appears that thought/case law has changed since I was last here when invalid DN + termination letter on back of DN = invalid recission. I have yet to find the relevant case law, but it seems that this is no longer the case. So, what happens when I have taken this approach (with AMEX), accepted their termination, paid off the arrears demanded and then they come back 12 months later and issue a formal termination in line with their T&C's? Does that mean that the account is now terminated at this point (as it never was with the invalide DN) and I have to pay back all that is owed? We are due in court to fight this issue in December, so I need to know if I have any chance of defence given the new info that has come to light. Thanks JG6

Just to add to this, my case has also been adjourned pending the outcome of this Appeal. What was interesting, was the solicitor for the other side presented me with a Skeleton Argument 5 mins before we were to see the Judge which included this case. Neither she nor the Judge knew that it was going to Appeal and if I hadn't seen this very thread 2 days ago, I would have lost my case as the Judge's first question to the solicitor was along the lines of 'isn't there some case law that makes this default notice issue a de minimis issue?'. So from the very off, my fate had been decided and if it wasn't for this forum sharing what it knows, I would be sitting here with a CCJ and a big debt to repay. As it is, at least I have a lifeline. Although the Judge went onto say that even if I won this time around, all they would do is reissue another DN as the debt remains. He would not have it that the agreement has been terminated (via contract law) but maintained I would still owe the $. Frightening! So, CAGgers, keep up the good work!

Just to give you a quick update on this situation. We have had a couple of further letters from MdeR both of which continue to say that they are giving us one last chance to pay up or else it's court for us ! (Again!) However, the last letter (about 5 weeks ago) kindly included a new termination notice. Now, I don't quite know what they are playing at here, but I have no doubt they have thought of some new game where they can terminate an already terminated account. So, I need to communicate with the poor dears and spell out the facts: any thoughts on how I should go about this? I know I need to get some sort of statement to them before the new termination date (23rd July) just not to sure how to play this. Any ideas? JG

Could someone please give me their view on my CCA with MBNA? I think it is fine: it has my correct name and address, and my signature from around Aug 2005. It also has the Key Info there, as well as MBNA's address. Any views? Thanks JG MBNA CCA JG.pdf

Unfortunately I might be on the receiving end of one of those SD's regardless as we are home owners (albeit with an unaffordable mortgage and no equity!) and just the sort that they will want to follow up on. Bankruptcy for me/us is just not an option! But as you say, I know that 1. DN was invalid (not allowing 14 clear days, full balance demanded, improper text) 2. Account sold before remedy date 3. No Deed nor Notice of Assignment from MBNA 4. My acceptance of their illegal termination both via letter and stopping payment 5. Questionable CCA - must follow up on that now that I think of it So, I'll let you know if anything happens - good or bad ! JG

Hi all Well, it is hotting up for me on this front! I too was part of the MBNA sell-off last year when my credit agreement was 'sold' to ExpCred (according to MBNA comms log) in mid-October and before the remedy date on my DN had been reached. Since then, I've SAR'd MBNA, got a copy of my agreement (well I think it's my agreement!) from ExpCred and now have the joy of dealing with CMC (Credit Management Consultants) who do a fine job of leaving very long messages on my telephone! These messages are getting more frequent and threatening about what they will be doing, so I am expecting some litigation in near future. Is anyone else hearing from CMC? Has anyone yet ended up in Court with this situation? Regards JG

Many thanks to DiddyDick, Lexis and MeansToAnEnd. Makes sense to me that the DN is not covered by court protocols: just can't believe why the judge thought they would be In which case, I will fight on and await the next hearing date!

Can i just pose a question re Invalid Default Notices and deemed date of service. I note that there were some earlier and very useful posts on this subject by Vint (c. post 2507) but I would really appreciate some clarification on the new CPR 6 rules (specifically 6.26) in relation to the 1985 Practice Direction which supports Section 7 of the Interpretation Act 1978. The reason I ask is that i have a couple of invalid default notices, some followed by termination, whereby the deemed date of service meant that I did not get enough time to rectify the breach. My most immediate concern is where I am currently defending a CCJ on the basis that a DN which was posted using UK Mail (and my contention is that this is a 2nd class service) is invalid because it did not give me the full 14 days to rectify, only 11. However, a DJ has informed me that my reliance on the 1985 Practice Direction is outdated as the new CPR rules, which were updated in 2010, will take precedence and do not support my case. Having read CPR6.26, she would appear to be correct as they state: "A document, other than a claim form, served in accodance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table- Method of service 1. First class post (or other service which provides for delivery on the next business day) Deemed date of service The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day." So, my questions are: 1. Does my DN fall under the CPR rules? 2. Do the CPR rules override the Practice Direction? 3. Why would the DJ advise in this way, intimating that I do not have a strong case? 4. Is there a more recent update on service dates out there? Thanks in advance JG

Hi Janensteve Can you give an update on what happened at the Court Hearing? How was the date of service issue dealt with? Hope it is a happy ending for you JG

Yes, I believe charges were included. The balance of the a/c when defaulted was £5987.32 and this included, over the course of the a/c, £208 in charges (late charge fees). The arrears were quoted as £494.15 and I have paid £56.53 against this via Payplan (although I have now stopped as they have not furnished a breakdown of the arrears). I believe that payment of correct arrears is the right thing to do here, but not sure how to calculate them. Also, does anyone know of anyone on the forum who has successfully counter-claimed for unlawful recission and won?? Thanks all JG

Hi Slick I've already been to court once when then Judge ruled that the agreement was fine and that it wasn't to be part of the next court appearance. Even though I was asking to see the original, a copy was deemed to be OK. So, when we go back, the issue of the DN is the main one. I honestly believe it is defective but you never know how these things go. So, for that reason, I'd rather settle now but want to do it appropriately. It's just a matter of what the appropriate settlement and conditions should be. I suppose I could also confirm to them that I wouldn't pursue for invalid reisssion of contract.

Yes - although it is out of date as I didn't update it following my court appearance in Jan. Here it is: http://www.consumeractiongroup.co.uk/forum/legal-issues/226866-restons-claim-need-send.html (Not sure how to do links, so hope this is correct)

Briefly, I am awaiting a court date in early June when I go back to contest a claim around a CCA which I am defending on the back of an invalide DN and subsequent invalid termination of contract. I have just received a letter from the solicitors, saying they don't want to incur further costs and asking for my proposal for settlement. The claim is for c. £7,000 although the arrears (which I am willing to pay) are at £500 level. Should I stick to my guns and just offer the arrears amount? Should I add an extra ex gratia payment in view of their costs? I would really prefer not to go back to court but I have so little £'s - not sure best way forward. Thoughts?

This situation has moved on a tad, and I am now awaiting a second trial in early June with my defense being that the DN was defective in that it did not allow 14 days. I have just received a letter from the solicitors saying that they want to settle, and asking for my proposal for settlement. So, what do I say? I would obviously be keen to negotiate with them, but I don't know what I should settle at. Should I simply position what I believe is correct (the arrears of c. £450) or acknowledge the full credit card amount of c. £6,000 and make a % offer on that? If so, what sort of %? (which, by the way I can't afford and would have to borrow from someone!). I'm confused !!! Any thoughts? Thanks JG

Thank you all for your input. Definitely some food for thought there! Our next step is, therefore, to refute AMEX's points and see where that takes us. I have no doubt it will go to court. Will be interesting to see if we end up in the same court with the same judge who earlier ruled against their request for SD, and see what he thinks about this attempt to extort $'s out of us! JG

Hi DD Do you have any further detail on the aspects of this case you refer to? Thanks JG

Hi all I posted earlier on our battle with AMEX who had issued a SD against my partner for monies on a credit card of c. 18K. We went to the County Court and had the SD set aside on the basis that the Default Notice was invalid in that it had only provided 14 days from the date of the notice, without taking into account service, etc. The agreement had, by this time, been terminated, so following the court decision we wrote to accept their termination and to repay the outstanding arrears which were due prior to termination. We did not feel up to going down the path of invalid recission of contract: just too stressful. That was in Nov 2009. We have just received a letter telling us that as per the T&C's signed by my parter, they are able to terminate the agreement at any time and that he must pay back all the money owed. They are quoting certain case law (AMEX vs Duffy and AMEX vs Harrison) which I cannot find anywhere. They say that this case law supports the contention that the T&C's which my partner signed up to supercede the rules of the CCA 1974. Any thoughts or experiences in this area? Thanks

This situation has now moved on, where RBS is suing me for the 6K overdraft in the Fast Track court and their solicitors are also adding on 4K in costs. So I am looking at a 10K total if I loose. I still haven't received anything from RBS in response to my SAR (they needed my signature before they could release anything) so I have yet to calculate how much I have been charged in charges for bounced DDs, etc., but I am assuming that this is still the only way forward for me. Given that the OFT case was lost, can someone help point me to how I can best defend this case. Thank you JG