Cheers Basil...let's see what my solicitor says about that!

Basil, could you check on the back of your envelope and tell me the address?

I found out that the envelopes with the DN had got mixed up (not sure if it was our mix up or the solicitors) and instead of having the Chester address on the back had a Northampton address. So my solicitors decided not to go to trial on that because the MBNA Witness Statement was claiming MBNA never send out DNs 2nd class! I think there is a higher court case coming up near Christmas which may show that MBNA do actually send out DNs 2nd class...

Hi LB and M and M Well I have more of the detail now after getting a reply from the solicitors. It seems the envelopes for the default notice got mixed up (not sure who was to blame, us or the solicitors), instead of the back giving a Chester address it had a Northampton address. What was funny though was that the MBNA Witness Statement was that they never send DNs second class (!!!), and when we had to disclose our evidence, we had a scan of the front of the envelope which clearly showed it had been posted 2nd class...they asked to see the back of the envelope as if they knew there would be an error, that was when the Northampton address came to light! Now how would they be looking for that? It seems strange that they were so sure of themselves, especially as I do know at some time I did have the right envelope and it had been sent second class. Anyway, the solicitors decided not to go to trial on this basis, as they felt the courts would accept a reconstituted agreement, and they agreed a consent order...and now MBNA have put a charging order on our property!

Hi M and M, thanks for the commiserations. The sols did it all...but reading up on LB's thread, I realise the same may have happened to her as to me...the judge may have accepted a reconstituted copy...who knows. No, the sols did not give us a copy of my defence...so I should ask them that too, thanks. I know the sols have asked us to act quickly to ensure we don't get a charging order on our house, to arrange payment...so I guess that is what you mean by redetermination??? So I need to do an income and expenditure?

LB I would just like to say, I also failed with MBNA, but I used a solicitor! It looks like MBNA are getting more aggressive and judges seem to be lining up on their side. I haven't got the details of how the judgement was reached, but now that I read your thread I realise that the same may have happened in my trial, even with a specialist solicitor representing me. I only hope we can pay off in small amounts as the amount we owe would cripple us.

LB145 I hope your no win no fee solicitor is better than mine...they lost the easiest case for me to MBNA - defective default notice and an application form parading as an agreement...

This is an update on MBNA and the solicitors...they lost the case for me! Even though it was pretty strong, I doubt very much if MBNA could have produced an original agreement in court, and the default notice was defective, so the most they could ever hope to get would be the arrears...however the solicitors have just sent a letter saying the case was lost and now we have to act to pay the entire sum to MBNA or make an arrangement with the court to pay a monthly amount based on our income. The solicitors won't even tell us how the judge's decision was reached, nor how the barrister argued, nor even who the barrister was! I have made a complaint to their Managing Partner...if I hear more I will post up here. But I can see how awful it is when a solicitor makes decisions and you are left out of the loop but have to pay the consequences.

Hi Rizel OMG - I just had a look at your agreement! it is exactly the same as my OH's INCLUDING THE DATING STYLE!! I noticed it because my OH does not write his dates like that, i.e. with a dot between the digits...and I noticed your agreement also has exactly the same dots!!! I know my OH would never sign something without dating it...so it looks like they've grafted his signature onto an agreement and the Jonathan person (who also signed on behalf of the lender on my OH's agreement too) dated it himself...otherwise no other explanation of how the dating on yours looks the same as the dating on my OH's. Any update on your situation? Red

Ok ihpj, I haven't seen your default notice, but I see you already know and have argued that the terms on the back of your application form do not match the front - condition 11, for example. Most probably your DN takes it's legitimacy from a para 8 (as mine does) of your agreement in regards to payment of arrears, but para 8 on your 'agreement' does not refer to arrears at all but something entirely different. In which case the DN does not relate to the 'agreement' and could therefore be seen as faulty. Most probably they have sent you current T&Cs which do match the DN but don't match the numbering of the terms on the 'agreement'. It would be hard for MBNA to prove that the current terms, the terms on the back and the DN were actually all related to the application form. So far I have searched but not seen a case on this forum with such an application form (and pasted terms to make it appear like an agreement) where MBNA has succeeded in producing the original. However, I can see you have already done your homework on this and if you have come to the conclusion that it is better for you to settle then I'm sure you know what you are doing. Best of luck.

Just PMd you with the details.

Great...so you have them by the short and curlies! Para 8 should be about paying arrears according to the DN, so the DN has no relation to your application form masquerading as an agreement. As for the typed T&Cs they can't be the ones at the time if they are numbered differently, the lenders would have to say how they related to your application form/agreement because they clearly don't.

Hi LB, also wrote on your thread. I handed my case over to a 'no win no fee' solicitor who has said that cases like this rarely go to trial...they are handling it all, I think primarily based on the faulty DN.

Hi LB, trying to read through your thread today. Can you check...on your DN it refers to para 8 of your agreement (as it did in my DN) - in my 'agreement' there was no para 8, only paras 1 to 3 (incomplete because it states at the top that these are only paras 1 to 3, but no full copy of the terms given with the CCA). The para 8 can be found on the current terms and conditions - but as you have already noted I think, those current t&cs do not match the application form which mentions section 11 for data protection, and section 11 on the current t&cs are not about data protection. So it shows the current t&cs do not match the application form and the DN has no legitimacy deriving from the signed application form. They would have to produce the full terms for the original agreement, and it is very unlikely that they can, it is not normal to change the numbering of the terms like that, so they would have to produce original terms that also show how the numbering changed. They would get themselves tied up in nots. I'm not sure, but it looks like this would invalidate the DN to say the least.

If your 'rep' is a Claims Management Company then they are probably trying to get out of refunding your money ... if you haven't paid them then get rid of them, they'll do you more harm than good. These CMCs lost out in a test case because it was shown that they could not take the lender to court to write off the debt - the CMCs wanted quick money. But if you are not paying the debt then the onus is on the lender to prove the terms of the debt by producing the agreement. You can't take them to court and expect to win. But they will find it impossible to enforce the debt (they can only harass you), unless they can produce the original agreement and it has to have all the prescribed terms correct. This is the wording from the actual judgement that you can ask your rep to refer to - about the need for lenders to provide a copy of the original agreement in response to a s.78 CCA request if the agreement has been varied: Citing HHJ Waksman QC in Carey v HSBC, 23 December 2009, when an agreement has been unilaterally varied “Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request”. Remember that most agreements have been varied - the lender has altered the interest rates, or altered the charges. If your account goes back before 2007 then there is every likelihood that the agreement will have been varied.