Fluffystuff's OH & MBNA

[Fluffystuff]

Hi Fluffystuff

 

How are you doing.

 

Where did you see it is a problem for them if they assign it before the DN date has expired. I am unclear about the implications of that.

 

Good Luck

 

Pedross

 

 

Hello Pedross,

 

In the grand scheme of things, I'm doing fine thankyou.

 

Sorry, but can't remember exactly where the info re. assigning before expiration of default notice came from - advised on this forum somewhere!!

However, have not had any contact concerning this debt since last October when I informed DLC of the situation.

 

x

[Fluffystuff]

Hello all, long time no speak!

 

Could do with a guiding hand please, husband received claim today, issued CCBC 14/11/12

 

POC:

 

The Claimants Claim is in respect of a credit facility................provided by MBNA at the Defendants request on ../../2005. The agreement was subsequently defaulted. Failure to meet requests for payment resulted in the account being terminated. On ../../2010 all legal and beneficial interest for the monies was assigned to Hillesden Securities Ltd. The defendant was duly notified in writing of the assignment and that a balance of £...../.. Was due. The balance of £...../.. remains owing from the defendant.

 

Signed by a named person for Claimants Solicitor, Aplins.

 

----------------------------------------------------------------------------------------------------------------

 

In our possession from earlier CCA request, is an application form (clearly mocked up!), DN which is short of 14 days required, TN letter from MBNA & hello letter from Hillesden confirming the debt has been assigned to them. Both these letters were dated and received before the end of the default notice period to rectify!

 

Have completed AoS online this morning, assume next step is CPR 31.14 request?

 

Although we have successfully defended a CC claim before, the circumstances were slightly different (that one hadn't been assigned or terminated during default period to rectify!)and I know certain things to do with the CCA have changed a little since we did this so would very much appreciate your help and guidance once again please.

 

Thankyou. X

[seriously fed up]

I dont think much has changed that from what you say in today's post you are likely to rely on. I suppose the main area would be the application form aspect. On the one hand Carey v HSBC allows creditors to send a reconstruction - but ONLY for the purpose of s77 - for enforcement (ie s61 1a) they should still produce the original, and from having had a quick look through this thread it seems unlikely that they will be able to do this. google Harrison v Link to see the problems that MBNA can cause those they sell their accounts to. The fact that what they have presented is clearly a mock up remains a strong and valid point for you and unless they can find a way round/past it, I would have thought they are sunk. The manner in which they defaulted - and in particular sold the account before the default notice had expired - is a killer point as well for you as far as I can see.

The only other major thing that I can think of that has been mentioned in your thread is that the s59 argument has been knocked on the head by the courts. Other than that, since you are able to rely on the 1974 Act, things are much as they were, I think.

[Fluffystuff]

Thanks for that SFU, so to clarify, my main defence will be the selling of the account before the expiration of the default notice, which in itself failed to give requisite time to rectify? Do you know if the notice of assignment has to be in a particular form? I'm a bit confused over equitable and absolute assignments.??

[seriously fed up]

Starting at the end, absolute assignment, I think, sells the whole thing - lock, stock and barrel - to the dca. Equitable is somewhat less, but I am not entirely sure.

I would certainly go after them for the DN, and the fact they sold before you had time to remedy. Notice of assignment is a bit vague. Creditors argue that its enough for them to write to you and tell you your debt has been transferred to them - Cabot's hello letter for instance. But, if I wrote to you to say your debt has been sold to me, why should I believe you. But if they have screwed the DN by not giving enough time to remedy AND sold before the (overly short) time they have given you to remedy, then those are strong points.

I would though still go after them about the application form/ agreement with all the points that you and Vint raised about it being a reconstruction. They may not attempt to defend that, but if they came up with such a duff reconstruction it might be that they have a problem finding an enforceable version of the agreement. This is why you need to read Harrison v Link, because he tied MBNA in knots about what type of agreement he is supposed to have signed (in fact, if you are an optimist, if they see you refer to the Harrison case, it might just be enough to get them to go away and leave you alone). Remember that what they sent you three years or so ago was in response to a s77 request (what Waksman called "the information purpose" in Carey). But now they are seeking to enforce in court, its s61 1a that they have to worry about and the onus of proof here in on them to show that your OH did sign an enforceable agreement. Read Harrison (you can get it here http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html) but when you do, remember since Harrison brought the case the onus of proof was on him to prove he didnt sign an enforceable agreement. In your case the onus of proof is on them to show that your OH did sign an enforceable agreement, and in this respect HHJ Chambers statement that "Entirely understandably, the Defendant's evidence given through MBNA is of the "would have" variety. "We would have sent the terms & conditions because that is what we were required to do and our systems would have been designed to do". But there was evidence neither of the system nor its implementation." is telling.

Were I you, my defence would be based on both heads - unenforceable agreement and defective DN.

[Fluffystuff]

Thanks again Seriously, much appreciated. I read the Harrison case at the time 'pt' won but skimmed through as all was quiet in our household at the time! Will now digest thoroughly.

Remiss of me not to have asked after your well-being, apologies, hope all is good. X

[Fluffystuff]

Polite request to site team, please can you move this thread to legal? Thank you.

[pedross]

Hi Fluffystuff

 

If the DN is definitely faulty it is a strong defense and prevents the action they have taken. I will comment further if you post a copy or confirm the dates/details etc.

 

Pedross

[Fluffystuff]

Hi Pedross,

 

DN definitely faulty, not enough time to rectify, amount includes penalty charges and they also sold debt before expiration.

[griffin036]

Was the DN asking for the arrears or full amount?

[pedross]

I have not seen any documents so my comments are based on my understanding of the situation.

 

You need to put your defense together covering all points but the main issue with the DN is the fact that it did not allow 14 days from service (if that is correct). The case you need to refer to is Brandon v AMEX in which it was stated that an error such as that could not be classed as De Minimis.

 

A valid DN is required under the CCA for the claimant to commence proceedings and if it is not valid I do not believe that the claimant has a case. I am not convinced that the other points will help but they can be included, I just do not recall any legal precedents to rely on.

 

Pedross

Edited November 19, 2012 by pedross

[Fluffystuff]

Arrears.

 

(Though they did ask for payment of the whole outstanding balance some months before D/N was issued!)

[Fluffystuff]

SOS!

 

Does anybody have a copy of an original MBNA Points application form from around September 2009? This really would save our souls!

 

Thankyou.