Tragic case of Judgement because a cut up card was produced by MBNA at hearing.

[underdog13]

Ok, lets break this down a little.

 

Firstly you should never deny the existence of the debt itself as they can nearly always show that the money was spent.

 

The argument you will have more success with, is that the agreement was not properly executed and therefore the court should not and more importantly is restrained from making an order for enforcement

 

that is the key to winning these cases, the card shows nothing, it is something that we had recently and we pointed out it was not denied the money was spent only that the lender was denied the right to recover the funds

 

Bearing this in mind, PT, would you have to partially admit the debt on court claim forms? Forgive my ignorance; not been through the court process - yet:-|

[angry cat]

In to reality, the issue here is not really about the card;

it is about the agreement;

an agreement must conform to sections 60/61;

an agreement must be properly executed.

 

Furthermore, if the agreement was improperly executed.

How could MBNA have varied the terms, under section 85?

answer, they could not.

 

I presume the card in question was not the first token.

 

AC

[ScarletPimpernel]

My shredder will cut up cards, so I could send an envelope full of little plastic curls. Usually, however, I ignore DCAs demanding the return of cards, and if OC's ask I say (truthfully) that it's already been safely desposed of.

 

In the matter of this judgement, I agree with those who think the judge was wrong.

[toxicdebt]

Truly awful story. This just makes me even more determined.

 

If asked to return a card how about a brief reply like this...

 

Dear Irresponsible Bankers

 

What Card?

 

Yours Faithfully

 

[sosumi]

I do wonder if the solicitor slept that night.

I now have an image of MBNA that I doubt I'll ever shake.

So sorry for your friend.

[underdog13]

I'm sorry to say the solicitor probably slept very well that night - champagne has a soporific effect:mad:

 

I think we'll all sleep better when Alf's friend wins his appeal against this vile company.

[credit allergy]

Surely the route to go down is the following. I have said to dcas who have bought the debt. I require it so we know what interest can be charged or any charges are within the contract. So as has been posted earlier. Dont dispute the debt but focus on the agreement side if that makes sense. The burden of proof is lower in civil courts, so if there is a card or application present then you can see why these results occur. You have to become proactive in court showing, why lack of agreement is relevant as opposed to just denying everyhting the dca submits. As has been shown in high profile divorce cases strategy is very important and you must be seen to haved behave reasonably. Remember the case is not proving whether a debt exists but as to whether it is unenforcable and the correct approach utilising the available leglislation should acheive the correct outcome.

[Agent Mulder]

This tale really ought to go to the press. Private Eye likes to expose this type of horror story. Give them a call. The awful thing is that your friend has such a short time left and he should not be made to go through this hell in the time remaining to him.

[simon the poet]

Hi

This is terrible.

The whole point of section 127 is to protect the customer from being ripped off by creditors who forget to mention that they have rights.

The idea is that the creditor must be able to show that those rights have been shown to the debtor at the time of execution(signing) and also that the debtor was aware of any cancellation options they have.

 

This is a clear point of law and suitable for appeal

 

Simon

[JonCris]

A slick defence might have helped this, but even then I am not so sure.

 

I think that there is thought amongst the judiciary that if the debt is proven to exist then they won't let you out of it on a technicality. This is easier for them when the agreement postdates 2007 due to the absence of 127(3).

 

The absence of a CCA is not a bar to enforcement. Don't rely on it. Small claim judges do what they think is right.

 

 

Only because they know there's little chance of LiP appealing.

 

I hate to say this but it's unfortunately true in such matters that if your legally represented then it a whole different ball game & a CC Judge is much less likely to try & make a 'moral' decision but one based on law

[DCA-KING]

Sad story gbut two points

1 he will be classed as vunrable so bailiff will return it and just tell the bailiff hes diying and the courts know

2 most credt cards always add on insurance when you take out a card check his statments to see if he was paying it and if he was claim

Regards DK

PS i would talk to the press

[banker_rhymes_with]

Hello Alfwithhair!

 

Firstly, sorry to hear about your friend's illness.

 

Secondly, I think your friend should appeal if he feels able.

 

He may enjoy the fun and games, and it may take his mind off other things knowing that, whatever happens, it'll annoy MBNA, paint them in a very bad light indeed, and they can't actually benefit from the Appeal even if they win it again in the 2nd round (that would be unlikely if handled well, given all that you say).

 

Given his condition, he may be able to get it speed-ed up through the Courts! Wouldn't it be fun to wipe the nasty smile off MBNA's chubby face sooner rather than later!

 

Cheers,

BRW

[B3rty]

One other aspect I think cases are always stronger when its the OC in court as it looks like debt avoidance, If your defence is to deny the debt and they turn up with a signed credit card this is what it looks like

 

When its a DCA on an older debt it can be easy to deny their right to collect and the validity of the agreement....

 

I do feel really sorry for the person concerned in their situation and hope they have the strength to appeal..I am up the road geographically in the west county and would happily be a court buddy if needed.

[The GodMother]

DGA-KING

 

Well pointed out. I am Assummimg the court baliffs would require proof of illness as if not just anyone could claim vunerability and have no evidence.

[Rhia]

Just a point but as a terminally ill man does he want all this hassle anyway? As he appears to have no assets or property why not look at the new Debt Relief Orders in action in April - CAB is involved I think. Anyone with debts under £15K can have them written off if they have no assets. MBNA will never get their money.

[bazaar]

I dont wish to be cold hearted here, But if the person this has happened to is not that bothered by all these threats, then why not have some fun with them anyway, it'll tie them up. What can they do.

If Alfs friend has nothing else to do, at least some chatting on this web site and letter writing may be a little aside in what is obviously a very sad situation.

[Bazooka Boo]

What an awful situation, and just goes to show how extremely selfish and un-sympathetic not only these DCA's are, but people also.May his passing be less painful:cry:

Something which may be of some use for you:

Bailiffs and debt collectors : Directgov - Money, tax and benefits

 

Debt Basics - Bailiff Guide - know your rights

[underdog13]

Just a point but as a terminally ill man does he want all this hassle anyway? As he appears to have no assets or property why not look at the new Debt Relief Orders in action in April - CAB is involved I think. Anyone with debts under £15K can have them written off if they have no assets. MBNA will never get their money.

 

Does the 15k relate to total debts, or debt per company?

[Rhia]

It relates to total debts of £15k I think - so if you have more than that don't think it will work.

[The GodMother]

Just a point but as a terminally ill man does he want all this hassle anyway? As he appears to have no assets or property why not look at the new Debt Relief Orders in action in April - CAB is involved I think. Anyone with debts under £15K can have them written off if they have no assets. MBNA will never get their money.

 

Do u know where we can find out about these?

[Rhia]

Debt Relief Order - Wikipedia, the free encyclopedia

[The GodMother]

Thanks Rhia

[underdog13]

Thanks Rhia:)

[Kraken1]

has the enacting legislation for DROs been passed yet?

[Rhia]

Kraken it must have as it goes live this April.