CL Finance/Cohen Claimform - MBNA [ryanair] Credit Card debt **WON**

[Gazza112]

Hi All

 

 

Sorry for the Confusion but i stated that the last two letter was sen't by UKmail but infact was sent by Royal Mail 2nd class. Which as i stated received both the MBNA letters on the 12th of this Month.

Does this change anything from the UKmails in the time i received the letters.

 

Gaz

[Docman]

Hi Docman

 

Thanks for the info, on the note that may be a valid Default Notice.

What if after issueing them with the 31.16 complience letter they can't come up with the original document. Would the Default Notice they served be invalied.

 

Gaz

 

S 87(1) of the Act requires a DN before a creditor can take any action regarding a regulated credit agreement. Using CPR 31 you are forcing the creditor to produce a copy of the valid agreemnt. So if you haven't received a DN, you put the creditor to strict proof in your defence. Snag is, if you have received a DN and then deny that fact to the court, you could be in big trouble.

[supasnooper]

Hi All

 

 

Sorry for the Confusion but i stated that the last two letter was sen't by UKmail but infact was sent by Royal Mail 2nd class. Which as i stated received both the MBNA letters on the 12th of this Month.

Does this change anything from the UKmails in the time i received the letters.

 

Gaz

 

 

Indeed it does.

 

2nd Class Royal Mail Delivery is deemed served 4 working days from the date of postage.

You will have to presume trhe Default Notice was posted on the date it was issued.

 

Have a read of this post by B_R_W which incorporates a post made by x20 on the subject of served documents.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1852343.html

 

 

However, I am aware that car2043 does have a differing opinion on dates of served documents but i can't find his post at the moment. I mention this just to make you aware of a possible argument that may occur in Court.

[Gazza112]

Hi Supasnooper

 

Thanks for the info i'll have a read of the thread you kindly posted.

 

Gaz

[Docman]

Hi All

 

 

Sorry for the Confusion but i stated that the last two letter was sen't by UKmail but infact was sent by Royal Mail 2nd class. Which as i stated received both the MBNA letters on the 12th of this Month.

Does this change anything from the UKmails in the time i received the letters.

 

Gaz

 

Hi Gaz

 

yes as supasnooper has said this does make a difference. And I also stand corrected on my post in #272 above, which was based on what a barrister told me last year.

 

The pratice direction needs to be updated though. The rule is now in CPR 6.26 which states

"

Deemed Service

6.26

 

A document, other than a claim form, served in accordance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table –

 

Method of serviceDeemed date of service1. First class post (or other service which provides for delivery on the next business day)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; orif not, the next business day after that day.

 

 

Looks like you may have late service. I hope you have the envelope.

[Gazza112]

Hi Docman

 

Thanks for your advice and info.

Yes, i keep all the letters in the enverlopes and date the enverlopes when they arrive.

 

Gaz

[car2403]

However, I am aware that car2043 does have a differing opinion on dates of served documents but i can't find his post at the moment. I mention this just to make you aware of a possible argument that may occur in Court.

 

I think I was playing Devil's advocate...

 

IMHO, arguing that sufficient time hasn't been allowed for service of a DN wouldn't prevent a claim being allowed to continue if that was the only argument.

 

Should you have other issues, such as invalid DN due to unenforceable agreement, or incorrect figures would strengthen your defence.

 

I can't see a claim being successfully defended on the basis of a lack of time being allowed for Service of the Notice.

 

I would imagine that these companies are getting this very, very wrong if they aren't allowing this time, and a Judge probably wouldn't want to consider this argument on it's own merits, without supporting arguments.

 

Having said that, we know these companies can get these things very, very wrong - just look at the Banks' approach towards account charges - so I wouldn't rule anything out. (Should I decide not to continue playing Devil's advocate, that is! :-|)

[sunflower99]

Hi Sunflower

 

Its really forcing the banks hand at the end of the day.

As in the first place the Banks don't know weather you would take them to Court. On the other hand if they haven't got an enforceable agreement there not going to take you to Court in the first place. They know they would not stand a chance in Court without the right paperwork.

 

Gaz

Hi Gazza! thanks for giving a bit more info about CPR 31.16 requests.i think its great you are sending CPR 31.16 request to them!I see you are going to keep all our new year resolutions of giving these banks and DCA a hard time:DWell done! Good on you Gazza! I will be watching this thread with great interest!:DHeres to a miserable new year to MBNA ! as more and more people join CAG know their rights and the Dcas profits fly away!when they realise that they can not bully and intimidate people ! Edited January 16, 2009 by sunflower99

[supasnooper]

I think I was playing Devil's advocate...

 

IMHO, arguing that sufficient time hasn't been allowed for service of a DN wouldn't prevent a claim being allowed to continue if that was the only argument.

 

Should you have other issues, such as invalid DN due to unenforceable agreement, or incorrect figures would strengthen your defence.

 

I can't see a claim being successfully defended on the basis of a lack of time being allowed for Service of the Notice.

 

I would imagine that these companies are getting this very, very wrong if they aren't allowing this time, and a Judge probably wouldn't want to consider this argument on it's own merits, without supporting arguments.

 

Having said that, we know these companies can get these things very, very wrong - just look at the Banks' approach towards account charges - so I wouldn't rule anything out. (Should I decide not to continue playing Devil's advocate, that is! :-|)

 

 

Hi car2403,

 

It was this post I was looking for in the context that the claimant may use this as an argument in court.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1887240.html

 

 

I wanted to mention this post, because, if you are aware of this, who is to say others are as well ?

 

Good of you to play devils advocate though, as it makes others aware of the pitfalls they may come across and that they need to do their groundwork thoroughly.

[Docman]

I am pleased that we do have someone playing Devil's Advocate so that everyone else can be aware of the kind of arguments put to District Judges. I can quite see the creditor solicitor saying "Well judge, there are 14 days between the two dates stated on the DN, so it's valid".

 

If the argument is put, defendants should quote the Act, where for once the statute is quite clear and specific about a point, and I quote,

 

S88(2) CCA 1974 (as amended by CCA 2006)

"A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take such action as is mentioned under section 87(1) before the date specified or (if no requirment is made under subsection (1) ) before those 14 days have elapsed."

 

It would be a very brave (or foolhardy) judge who went directly against the statute. If any judge does lean towards this argument, then the defendant should (very politely) ask the judge to specify his reasons for accepting a DN with less than 14 clear days in the judgment. It should clarify his thoughts, I hope.

[car2403]

It would be a very brave (or foolhardy) judge who went directly against the statute. If any judge does lean towards this argument, then the defendant should (very politely) ask the judge to specify his reasons for accepting a DN with less than 14 clear days in the judgment. It should clarify his thoughts, I hope.

 

And would also give grounds for an appeal

 

[sanrhythm]

I was going through this thread and similar to gazza I just had reply back from alliance and Leicester mbna I requested CCA on 3rd DEC jut today 16th JAN (after sending a reminder CCA with stopping my DD payment) received reply today please see attached ZIP images your help greatly appreciated what next I should send?

Edited February 4, 2009 by sanrhythm

[steven4064]

Loadf of bumph. They have sent T&Cs but nothing with your name or signature. THey have complied with s78 but have not provided a copy of anything executable.

[citizenB]

Hi car2403,

 

Good of you to play devils advocate though, as it makes others aware of the pitfalls they may come across and that they need to do their groundwork thoroughly.

 

I am pleased that we do have someone playing Devil's Advocate so that everyone else can be aware of the kind of arguments put to District Judges. I can quite see the creditor solicitor saying "Well judge, there are 14 days between the two dates stated on the DN, so it's valid".

 

If the argument is put, defendants should quote the Act, where for once the statute is quite clear and specific about a point, and I quote,

 

S88(2) CCA 1974 (as amended by CCA 2006)

"A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take such action as is mentioned under section 87(1) before the date specified or (if no requirment is made under subsection (1) ) before those 14 days have elapsed."

 

It would be a very brave (or foolhardy) judge who went directly against the statute. If any judge does lean towards this argument, then the defendant should (very politely) ask the judge to specify his reasons for accepting a DN with less than 14 clear days in the judgment. It should clarify his thoughts, I hope.

 

It clearly states "specified", but I guess you would need more to strengthen your arguments as Car says.

 

Car, it would be a sad day if you were to stop being Devil's Advocate.. We need to know where we would stumble if our facts werent accurate and backed up properly.

[sanrhythm]

thanks steven i also dindt get why they send last statment and image2 clearly states recent t&c!!!!

[Gazza112]

Hi All

 

Just to keep you updated on this thread, that i've not heard anything from them since i last posted. As soon as i get some info from them i'll let you all know.

 

Gaz

[sanrhythm]

after third letter in responce to terms and condition finaly MBNA send sign copy not readable see attached images copy is not clear at all you cant read anything !!! what next? HELP needed

Edited February 4, 2009 by sanrhythm

[Gazza112]

Hi Sanrhythm

 

Can you re-scan the images as these are too small to take a look for you.

 

Gaz

[sanrhythm]

hi Gazza112

 

please find attached zip

Edited February 4, 2009 by sanrhythm

[Gazza112]

Hi All

 

Just an update on MBNA/Abbey, guess what they only sold my dept on.

Without replying to my CPR 31.16 request, the company's called Lewis Dept Collections.

 

Here's a scan of the letters i received today from them.

 

 

 

Gaz

[sunflower99]

Gaz! you must have really upset MBNA:eek:They terminated you and you never got a pink pig letter!:eek:Are you going to send them the bemused letter?

[Gazza112]

Hi Sunflower

 

Yes, i've just drafted the letter out i'll pop it in the post on monday.

Car sorted you a good template letter out for your CCA, about they've not complied to your requests. I thought i had that letter to hand, but can't find it in my files.

Been busy writing today, one to Barclay's, one to Blairs for Halifax and one to Lewis's for MBNA.

Few what a day lol, why are these people picking on me i'm a good person

 

Gaz

[sunflower99]

Hi Gaz!

Yes Car has been very helpful on our MBNA threads! It was him who gave me the confidence to countinue my fight against MBNA! and gave me the reassurance that there is a very good chance their CCA was dodgy when i was starting out as a nervous newbie Cagger ! and was letting MBNA walk all over me!Yes you should find that letter on my MBNA thread!That Bemused letter is a good one! abnd i suspect i will be using it quite a few times in the future.My statement with MBNA quotes a five figure sum! So it will be the high court for me i guess if someone tries to enforce it!Dont you just love those secured loan leaflets they bundle in with all their statrements! Now thats what i call an example of responsible lending!

[sunflower99]

Complaints about data protection policy - ICO

[sunflower99]

The above post gives a link to commisoners office!