MBNA/Optima Court action

[MisterV]

Should I send a copy of the court form to the claimants solicitors or just the letter above?

 

Still with Northampton

[pompeyfaith]

ok at northampton good just the letter above once the case has been transfered to your local court u will get the chance to exchange all docs

[MisterV]

Thanks Pompey, will scan the DN and Terms & Conditions links up this afternoon.

[pompeyfaith]

are u logging into MCOL and filing the embarrased defence online ?

[pompeyfaith]

great ill cast my eye over them this evening in the mean time go ahead and submit that defence to northampton it will then be about 4 weeks before u hear anymore

[MisterV]

Hi

 

Links to DN and terms and conditions sent as part of CPR request. They appear to be the new T&C's. (after 2007)

 

Default...

http://i370.photobucket.com/albums/oo147/martpammy/scan0002-3.jpg

 

T&C's

 

http://i370.photobucket.com/albums/oo147/martpammy/scan0001-4.jpg

http://i370.photobucket.com/albums/oo147/martpammy/scan0003-4.jpg

http://i370.photobucket.com/albums/oo147/martpammy/scan0004-3.jpg

http://i370.photobucket.com/albums/oo147/martpammy/scan0005-3.jpg

 

Thoughts and comments, as ever, greatly appreciated.

[diddydicky]

Hi

 

Links to DN and terms and conditions sent as part of CPR request. They appear to be the new T&C's. (after 2007)

 

Default...

http://i370.photobucket.com/albums/oo147/martpammy/scan0002-3.jpg

 

T&C's

 

http://i370.photobucket.com/albums/oo147/martpammy/scan0001-4.jpg

http://i370.photobucket.com/albums/oo147/martpammy/scan0003-4.jpg

http://i370.photobucket.com/albums/oo147/martpammy/scan0004-3.jpg

http://i370.photobucket.com/albums/oo147/martpammy/scan0005-3.jpg

 

Thoughts and comments, as ever, greatly appreciated.

 

where is the comply date on the DN is my eyesight getting worse!

 

if it is missing this could IMO to be to your disadvantage since it basically gives you "all the time in the world" to comly

 

much better to have one with a (defective) date on it

[pompeyfaith]

imo its to his advantage as a DN must specify a date of no less than 14 days to remedy the breach

 

it also states if u do not take action by the date shown

[MisterV]

Received copy of CCA today...

 

http://i370.photobucket.com/albums/oo147/martpammy/scan0001-1.jpg

 

http://i370.photobucket.com/albums/oo147/martpammy/scan0002-1.jpg

 

Any thought?

 

Not sure about the date issue that was mentioned about the DN

 

Thanks

 

Might be my fault here folks , there is a date after it says..

 

"In order to remedy this breach we must receive a payment of £xxx by 30th May 2009.."

 

Perhaps I was a bit over enthusiastic with the white stuff - sorry. Just didnt want to leave any traces.

[summerbreeze]

12th May was a Tuesday

Do you have the envelope? Usually MBNA send via UKmail which counts as 2nd class.

If so the date of service would be Monday 18th may [ 4 working days as per the Interpretation Act 1978 section 7 and Practice Direction 1985 service of documents 1st and 2nd class mail]

That would make your DN defective on dates as it does not allow 14 days for remedy

This is my opinion only and you should also see what others say

[pompeyfaith]

Right ok that clears that up, for a minute then I thought we were onto something good !!!!!!!!!

 

PF

 

Yes MisterV from this moment forward keep everything including envelopes and write on the envelope the date received.

 

Also send everything recorded at least and get a receipt.

 

Right those terms and conditions are not the historical ones as the account was set up in 1999 and the fees on the terms and conditions are £12 the fees would have been higher on the historical T and C's as the OFT had them reduced on October 2007.

 

So you still need the historical terms and conditions as they where the ones you signed to

[summerbreeze]

PF Isnt it the case that the claimant should state whether the DN was sent via 1st or 2nd class post and if they state 1st but cant prove it then 2nd class will be assumed or if they dont state the method then 2nd class is assumed also?

 

MisterV has some defence based on the DN dates I think

[diddydicky]

imo its to his advantage as a DN must specify a date of no less than 14 days to remedy the breach

 

but if there IS no date shown-hen they terminate- how can he claim that he was not given enough time!

 

still there was as it turns out

[pompeyfaith]

Yes indeed summer this is the case it is for them to prove not the other way around.

 

PF

[diddydicky]

PF Isnt it the case that the claimant should state whether the DN was sent via 1st or 2nd class post and if they state 1st but cant prove it then 2nd class will be assumed or if they dont state the method then 2nd class is assumed also?

 

MisterV has some defence based on the DN dates I think

 

unless shown "to the contrary" then it is assumed that the posting was second class

[pompeyfaith]

Diddy there is a date of the 30th May the OP rubbed it out by mistake.

[diddydicky]

Right ok that clears that up, for a minute then I thought we were onto something good !!!!!!!!!

 

PF

 

you are onto something good cos MBNA wil have sent it 2nd

 

(or at least they will have no proof that they sent it 1st)

 

the SAR will reveal this- no proof of 1st class posting - 2nd assumed

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:*

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

Edited July 15, 2009 by diddydicky

[diddydicky]

Diddy there is a date of the 30th May the OP rubbed it out by mistake.

 

yep got that now - it was the no date scenario that intrigued me

 

for a minute i thought they were trying out a new [problem]!!

[pompeyfaith]

As all these documents are copies the civil evidence act comes into play here and you can use it to good effect.

 

Hello all,

 

This may be useful if have to proceed to court and a COPY of the CCA is going to be produced. Here are two links to the Act

 

Results within legislation - Statute Law Database

 

Civil Evidence Act 1995 (c. 3:cool:

 

There is also information in Draft Order for Directions

 

Draft order for directions - including directions for disclosure

 

The general gist is as follows para e onwards is the legal requirement:

 

For claims or defences based on agreements regulated by the Consumer Credit Act 1974 if no enforceable copy of the agreement has been sent:

 

a) a copy of the executed agreement regulated by the Consumer Credit Act 1974 for the account

 

For a loan or hire purchase agreement

 

b) a statement signed by or on behalf of the [Claimant] [Defendant] (whichever is the loan company) showing, according to the information to which it is practicable for him to refer,--

(i) the total sum paid under the agreement by the [Claimant] [Defendant] (whichever you are);

(ii) the total sum which has become payable under the agreement by the [Claimant] [Defendant] (whichever you are) but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

(iii) the total sum which is to become payable under the agreement by the [Claimant] [Defendant] (whichever you are), and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

For a credit card

 

b) a statement signed by or on behalf of the [Claimant] [Defendant] (whichever is the loan company) showing, according to the information to which it is practicable for him to refer,--

(i) the state of the account,

(ii) the amount, if any currently payable under the agreement by the [Claimant] [Defendant] (whichever you are) to the [Claimant] [Defendant] (whichever is the loan company), and

(iii) the amounts and due dates of any payments which, if the [Claimant] [Defendant] (whichever you are) does not draw further on the account, will later become payable under the agreement by the [Claimant] [Defendant] (whichever you are) to the [Claimant] [Defendant] (whichever is the loan company).

 

General

 

c) copies of Default Notices (if any) issued pursuant to s87(1) of the Consumer Credit Act 1974 by the [Claimant] [Defendant] (whichever is the loan company) to the [Claimant] [Defendant] (whichever you are)

 

d) a copy of any Notice of Assignment to the [Claimant] [Defendant] (whichever is the loan company) relating to the [Claimant’s] [Defendant’s] (whichever you are) account

 

e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

 

It could be useful if you are proceeding to Court and the defence is going to produce copies rather than originals.

 

yes me to diddy

 

This is the bit they will have to do if they are relying on what you have got.

 

e) if copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(i) a copy of the procedure(s) used for copying, storing and retrieving documents

(ii) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

(iii) copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(iv) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards.

 

They will only have microfiche copies that is a deffo MBNA never keep originals they scan them to microfiche and throw the original away i have been told this in court myself.

[MisterV]

Havent replied because im still digesting whats been written, going a bit fast for me, need time to catch up lol

[pompeyfaith]

take your time MisterV it is veryimportant understanding everything that has been said after all its no good going into court with out a clue of what has been written in your defence.

 

Its also important to understand the relevant acts of law and previous case laws.

 

Anything you are not sure about just ask here there are many good understandable folk here.

 

Regards

 

PF

 

As you can see from the evidence act just producing copies in court is not good enough they have to prove the authenticy of those copies also

[MisterV]

In answer to Summerbreeze it came from Optima offices in Bradford, envelope says 2nd class

[pompeyfaith]

they have to prove there case in court which for MBNA is going to be very hard that is why they get optima to do there dirty work for them and why optima 9 times out of 10 cock up.

 

That was a copy from optima misterv MBNA must have sent you a DN so its the delivery dates on that one that counts

[MisterV]

Pompey - Its the original im talking about, the way ive filed the letters im certain it came 2nd class from Optima.

 

Have been getting letters from both MBNA and Optima. For example...

 

15th April - Optima - letter - Notice of legal action

12th May - MBNA - letter - Default Notice

1st June - Optima - letter - Instructed by MBNA to obtain payment

2nd June - MBNA - letter - Notice of sum in arrears

[pompeyfaith]

15th April - Optima - letter - Notice of legal action

12th May - MBNA - letter - Default Notice

1st June - Optima - letter - Instructed by MBNA to obtain payment

2nd June - MBNA - letter - Notice of sum in arrears

 

This is the one that is important about dates and it is for them to prove it was sent first class.

 

PF

 

So in your defence you will put them to stricked prove on this and as they will not have an original copy use the evidence act to prove that the copy is legit