Muffintop v mbna

[Stubie]

Would it not be better to take the CCA 74 s172 route where an application form or a clearly defective "agreement" is provided.

 

Wouldn't this scupper any attempt to produce a second "executed agreement" in court.

[Muffintop]

my draft poc

 

PARTICULARS OF CLAIM

 

 

1. The Claimant entered into a credit agreement regulated by the Consumer Credit Act 1974 with the Defendant.

2. The Claimant requested a copy of the agreement between the parties on . The Defendant, pursuant to section 78 of the Consumer Credit Act 1974 (“the 1974 Act”) provided the Claimant with a copy of the agreement which is signed by the Claimant only.

• The Claimant appreciates that the lender may have satisfied their obligations pursuant to section 78 of the 1974 Act. However, following the Claimant’s subsequent correspondence with the Defendant, including Subject Access Request Notice and the Claimant’s solicitor’s Letter Before Action the Defendant has not confirmed that they hold a copy of the Agreement which is signed by (or on behalf of ) the Defendant.
  

• Accordingly, the agreement is not properly executed in accordance with section 61 (1) (a) of the 1974 Act. Pursuant to section 127 (3) of the 1974 Act the Agreement is not capable of enforcement. (Note: Section 127 (3) of the 1974 Act is not repealed in connection with agreements made before 6 April 2007 by virtue of The Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions and Savings) Order 2007.)
  

5. The Claimant respectfully seeks the Court’s determination in accordance with section 142 of the 1974 Act that:

5.1 The Agreement is unenforceable

5.2 The Claimant can cease repayment of any balance of the Agreement

5.3 The Defendant shall write off any outstanding balance due under the agreement and shall remove any adverse credit references listed with the Credit Reference Agencies

AND THE CLAIMANT CLAIMS:

(1) the Defendant’s legal costs to be assessed if not agreed

[ifoughtthelaw]

That looks good Muffintop - clear and straightforward and easy to understand. Good luck with it,

 

IFTL x

[Muffintop]

i made a complaint to trading standards some months ago re mbna not sending me a copy of my agreement.

I got a letter from MBNA today, despite my solicitor pushing for some agreement from them (but now trying to rip me off by charging me on a no win no fee arrangement)

MBNA have said that ts have been in contact and they have sent me a copy of an agreement (not mine) from the time i opened the account! surely this must mean they dont have my agreement? how can i respond to this letter to force them to say they dont have my agreement. how would this fair in court if they took me, why wouldnt they just send mine if they actualy have it.

[Stubie]

i made a complaint to trading standards some months ago re mbna not sending me a copy of my agreement.

I got a letter from MBNA today, despite my solicitor pushing for some agreement from them (but now trying to rip me off by charging me on a no win no fee arrangement)

MBNA have said that ts have been in contact and they have sent me a copy of an agreement (not mine) from the time i opened the account! surely this must mean they dont have my agreement? how can i respond to this letter to force them to say they dont have my agreement. how would this fair in court if they took me, why wouldnt they just send mine if they actualy have it.

 

I haven't read back so if I'm duplicating then I appologise.

 

Have you read this?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[Muffintop]

Had a letter from Optima Legal Chris Taylor now saying words like charging orders and equity in my house and asking for a break down of my finances. They sound the scariest of all of them should I be more worried?

[MeeBroke]

Had a letter from Optima Legal Chris Taylor now saying words like charging orders and equity in my house and asking for a break down of my finances. They sound the scariest of all of them should I be more worried?

 

 

Hi MT

 

Subbing here too.

 

My letter is also from Chris Taylor. It is obviously a form letter. I received it yesterday. Am sending them the notification of account in dispute letter that I sent to MBNA.

 

MB

[Stubie]

Had a letter from Optima Legal Chris Taylor now saying words like charging orders and equity in my house and asking for a break down of my finances. They sound the scariest of all of them should I be more worried?

 

I got one of those a few months ago.

 

If you read it carefully it is full of "might" and "may" and "could consider". Its a bucket full of empty words masquerading as threats.

 

It also says don't contact them, contact MBNA.

 

I ignored it and nothing happened. I assume it is another weak attempt to pursuade you to pay up.

[toxicdebt]

Hi Muffintop

 

I got one too. Just attempts to scare you into parting with money.

[underdog13]

MT, you may like to read post 1286 on this thread; http://www.consumeractiongroup.co.uk/forum/legal-issues/151709-help-65.html#post2377588

 

Very illuminating reading:D

[Muffintop]

hi dog cant find the post you have mentioned.

on another note. need some urgent advice. my 2nd mbna cca request the sar came back today and it was taken out in 06 but it looks like i may have applied for it online. via internet

from reading stuff way back I think there is a problem with agreements taken out online and they come under different rulings. if this isthe case i need to identify it quickly and put this mbna into my dmp with payplan

 

i thought from memory it was a problem with anything taken out prior to 04, somebody knowledgeable will know...pse

[the_shadow]

hi dog cant find the post you have mentioned.

on another note. need some urgent advice. my 2nd mbna cca request the sar came back today and it was taken out in 06 but it looks like i may have applied for it online. via internet

from reading stuff way back I think there is a problem with agreements taken out online and they come under different rulings. if this isthe case i need to identify it quickly and put this mbna into my dmp with payplan

 

i thought from memory it was a problem with anything taken out prior to 04, somebody knowledgeable will know...pse

 

Hi Muffintop,

 

Online applications taken out after dec 2004 require only the tickbox to count as a signature... in court they would still have to show that the terms and conditions were displayed to you during the online application as this application was pre-2007 still and if you look at zhanzibar's thread against Amex, you'll see that they are having difficulty doing just that

 

S.

[underdog13]

hi dog cant find the post you have mentioned.

 

Pompey Faith's thread Help, page 65 post 1286:)

 

Makes for interesting reading....

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/151709-help-65.html#post2377588

[Muffintop]

Hi Muffintop,

 

Online applications taken out after dec 2004 require only the tickbox to count as a signature... in court they would still have to show that the terms and conditions were displayed to you during the online application as this application was pre-2007 still and if you look at zhanzibar's thread against Amex, you'll see that they are having difficulty doing just that

 

S.

U HAVE GIVEN ME HOPE. I CANT TELLU HOW DOWN IV BEEN THINKING THATS IT. I GOT A SAR AND IT LOOKS LIKE AN ONLINER. BUT IV WRITTEN SAYING HOW WAS THE ACC OPENED AND TO SEND ME THE CCA STILL... ZHANZIBAR V AMEX I WILL LOOK IT UP .. XX

[Alphageek]

Muffintop, please scan as post up anything you receive back from them if they attempt to show that you would have seen the T&Cs containing the prescribed terms at the time of application.

[zhanzhibar]

Yes I agree with Alphageek. You need to scan everything they sent you especially those relate with the online application form taken in 2006 so that everybody here can help you like they did in my case.

 

If you've read my thread, then you will know that I managed to squash their summary judgment but now they decide to take me to trial. We'll see what happen next .

 

So as soon as you get anything from them post it here.

[Muffintop]

thanks guys I am away at the moment but when I get home will try to scan with photobucket and post up. As this thread is to do with my mbna card 1. that isnt an online agreement i have created a new thread for the mbna 2 card which i am sure is an online agreement.

Can I ask you guys to sub to it. its called muffintop v mbna2

thanks.

[Muffintop]

I need to ask a question and as its mbna and another card that has forced me into this position due to trashing my credit file i hope you will allow me to add it to my thread.

Due to mbna trashing my file i have had every other card which is enforceable due to the time it was taken out after 07.. withdraw all my credit, halifax inparticular dropped from 5k to nothing.

I had 3 bank accounts with heafty overdrafts and they all withdrew it and wanted it back straight away which i have now had to negotiate a drop monthly.

I am now in the position where mbna havent taken me to court despite their debt collectors sending me lots of threads and the agreement doesnt seem imminent. (i believed that if i sat back after 6 years it would be barred by statute but I have now been told by a duff company that if mbna so much as send me a letter, not requiring for them to proove they have sent it or i have signed for it, then this is enough to not have the debt barred after 6 years?

I am now forced to look at going into a dmp with payplan hopefully and i have been told by various people that even though my debt with mbna is disputed i still have to include it?

does anyone know the answer to these two questions?

1. is a debt not barred by statute if they make contact with me

2. do i have to include a disputed debt into a dmp or iva?

3. What implications will this have as this will mean I am continuing to pay the alledged debt and it will never be barred by 6 year rule if token payments are being made?

 

I really need some advise, so if you think you know the answer pleaes let me know. thanks v much

[r&b]

read this:

Law relating to debts: statute-barred debts

and this:

http://www.payplan.com/debt-library/joint-and-several-liability-the-limitation-act-1980.php

Edited September 2, 2009 by r&b

[Muffintop]

hi thankyou very much for this practicle information, i have tried to read the hmcs info but still cant work out if i dont make any payments to a disputed debt failing their providing true copy of cca is it barred after 6 years or can they still come after my equity in my house or worse . ccj bailiffs etc.

i have to looka the payplan info, they are ringing me tomorrow at 2pm but they say they wont include a disputed debt into a dmp

[sunflower99]

Hi Muffintop

i am sure i saw om some threads that people do leave out disputed debts out when arranging debt management plans,i am sure if you informed debtline or who ever advising you about DMP that you wanted to leave an account out becuse the debt is in dispute and you believe the debt is unenforceable and or person possibly has no legal right to enforce it you just leave it out of negotiations and dont give any details of it to debtline cit advice or ccs etc .i know if you put account in dispute when it is being managed by a debt management company then it may be difficult to withdraw it from the list but if it is left out before approaching people for advice you only list the ones who have or likely to have enforcable cca or have the power to do you harm?

Edited September 2, 2009 by sunflower99

[sunflower99]

hi thankyou very much for this practicle information, i have tried to read the hmcs info but still cant work out if i dont make any payments to a disputed debt failing their providing true copy of cca is it barred after 6 years or can they still come after my equity in my house or worse . ccj bailiffs etc.

i have to looka the payplan info, they are ringing me tomorrow at 2pm but they say they wont include a disputed debt into a dmp

Hi Muffintop!

I missed your quote !So that is great ! i thought it was the case you could leave of disputed debts out of DMP, as you should not be forced to pay these debts if you choose not to till some legal decision or enforcement been made or dispute resolved in some way

[Muffintop]

Two questions guys

 

One how would I go about getting the late charges defaults reimbursed from the account which was in dispute and still is upon failure of them to provide what I have asked for my cca..

 

can I do this... I didnt think they could apply costs and charges under oft guidelines when in dispute (although they say they are not in dispute and have provided what they believe is a true copy which does not have to be exact)

 

2. How to I set up a document for costs which can be put forward to dj and how do I do this (this is in connection with another case of mine but will be used for all my cases .. all 3 that is)

[Muffintop]

i dont know whereto go with my mbna claim, iv done cpr requests nothing, im way down the line with it now prob got major bad credit file, mbna dont seem to register with experian they must use one of the others. I dont know how to give it a push again and i want to get all the default charges back but this would involve going to court i think?

[Harrassed09]

I am at exactly the same point as you. 2 MBNA's CPR's ignored, SARs ignored. A few DCA's have come and gone now nothing. I too think we need to go to court at this point but am unsure how to go about it and truly scared!!