Varde/Brachers claimform - MBNA card

[car2403]

We'll need to review how to defend - the CCA is the main issue, but there are other issues here with documentation and if the Judge disagrees with our views in the CCA, we need something else to back it up

[Smoothound]

We'll need to review how to defend - the CCA is the main issue, but there are other issues here with documentation and if the Judge disagrees with our views in the CCA, we need something else to back it up

 

Fine. There's the CCA, NoA, UR and the ongoing PPI issue. Not sure how using one affects the others though?

[Mr-Pieman]

Hi Smooth,

firstly you need to take the PPI issue up with the OC, they will refund the money directly to you not the new owner. I helped a friend with this even though the account was sold they got the cash the DCA didn't get a sniff of it.

 

Have you sent a PPI questionnaire to the OC?

 

As Car has mentioned I would send them a "Without Prejudice save as to costs" give terms like all charges refunded, and a clause that gives you 14 days to remedy any missed payments and then offer them something. If they take it all is good if they don't that's their problem you have tried. This is obviously very important if it's over £5k. Make sure you send the offers to the owner and the solicitors because they won't want to settle.

 

If the judge lottery goes against you can show that you tried to reach an amicable arrangement. That should stop them putting stupid costs on it.

 

I would mention in your defence the harassment from the OC and the new owner look at the Harrison vs link case.

 

Sorry I can't be more help.

 

PM

[Smoothound]

Hi Smooth,

firstly you need to take the PPI issue up with the OC, they will refund the money directly to you not the new owner. I helped a friend with this even though the account was sold they got the cash the DCA didn't get a sniff of it.

 

Have you sent a PPI questionnaire to the OC?

 

As Car has mentioned I would send them a "Without Prejudice save as to costs" give terms like all charges refunded, and a clause that gives you 14 days to remedy any missed payments and then offer them something. If they take it all is good if they don't that's their problem you have tried. This is obviously very important if it's over £5k. Make sure you send the offers to the owner and the solicitors because they won't want to settle.

 

If the judge lottery goes against you can show that you tried to reach an amicable arrangement. That should stop them putting stupid costs on it.

 

I would mention in your defence the harassment from the OC and the new owner look at the Harrison vs link case.

 

Sorry I can't be more help.

 

PM

 

Cheers PM

 

The PPI thing is ongoing. They have paid out a small amount(I disputed the amount and asked for a breakdown which was ignored!) but nowhere near what it should be and have told Brachers/Varde they have settled F+F. I am disputing this via the FOS but they ignored what I'd put in my form and just started right from the beginning again which of course after 20 or so weeks of time wasting MBNA told the FOS they had settled F+F back in May! FOS then failed to tell me this until I phoned up to see why I had not been paid out properly after weeks of waiting. The FOS have now asked for and received a breakdown of the payment which to my mind is pretty vague and has loads of months of missing amounts etc. See my thread HERE It is now sitting in the queue waiting for the FOS to appoint an Adjudicator

 

In the meantime I have to defend this case somehow

[Smoothound]

Just so annoying that I have to deal with this while MBNA are actually in my view still sitting on a large amount of my money! If I had that money I would be in a position to make an offer in this current situation

[Smoothound]

We'll need to review how to defend - the CCA is the main issue, but there are other issues here with documentation and if the Judge disagrees with our views in the CCA, we need something else to back it up

 

So with regard to the rest of my defence what do i use and not use? If the bulk of it is going to be the CCA enforceability what should I add to it?

 

The fact that I am still in dispute with the OC via the FOS should in my view stop this case dead in it's tracks until there is some finality surely? Or does it make no difference at all?

Edited February 6, 2012 by Smoothound

[teddi]

 

hi - if you offer final settlement witout prefudice to the claim does this mean that you admitted you owe the money?

thanks

[Smoothound]

hi - if you offer final settlement witout prefudice to the claim does this mean that you admitted you owe the money?

thanks

 

If I knew I'd reply teddi!

 

This is my issue with putting my defence together. I have no idea how one thing interacts with another really. so far I'm defending on the unenforceable CCA as per car2403 but as MBNA still owe me how do I put that in my defence without admitting the money is owed and interfering with the CCA? I'm really unsure what else I can and can't put in my defence statement without causing issues

 

As you can see these threads sometimes go ominously quiet which is quite disconcerting for someone who is trying to defend a claim but knows very little and is relying on advice and what he/she reads in cases here sinking in. I don't absorb info very well at all so I struggle

[Smoothound]

Anyone?

 

If I am going to go the court route what do I add to my defence to back up the dodgy CCA? Can I use the fact that I'm still in dispute with MBNA on this or not? Surely somehow I should be able to use this before it even goes to court and wastes more time? What about the UR is that now a waste of time or still valid? I'm really at a loss now and feeling I've been led up the garden path and encouraged to get into something that is way over my head and then everyone grabs their coats and leaves

[The Mould]

hi - if you offer final settlement witout prefudice to the claim does this mean that you admitted you owe the money?

thanks

 

Teddi

 

You would simply state "In full and final settlement of the claim without any admission of liability to the same".

 

Kind regards

 

The Mould

[The Mould]

Smoothhound

 

I am not acquainted with the details of your case, does my reply to Teddi answer your question?

 

Kind regards

 

The Mould

[The Mould]

Anyone?

 

If I am going to go the court route what do I add to my defence to back up the dodgy CCA? Can I use the fact that I'm still in dispute with MBNA on this or not? Surely somehow I should be able to use this before it even goes to court and wastes more time? What about the UR is that now a waste of time or still valid? I'm really at a loss now and feeling I've been led up the garden path and encouraged to get into something that is way over my head and then everyone grabs their coats and leaves

 

Smoothound (of the Baskervilles), is this the Hall of Barrymoor Hall?

 

221b Watson, you have had over 20,000.00 views on your case and still no sign of even a draft Defence, what is going on here my dear fellow?

 

How old is that Application form?

 

Forget UR (Unlawfull recission), with respect, the correct legal terminology is repudiation of the contract, however, if there is no contract extant, then repudiation of such cannot occur since there is no contract to repudiate on. No contract, so how are you bound to repay the money claimed?

 

As to NOA (Notice of Assignment), are you contending with s.136 Law of Property Act 1925?

 

Default notice is a statutory requirement imposed upon creditors before they can become entitled to Terminate, Demand payment of all sums and/or re-possess goods; no valid statutory Default notice served = no entitlement to aforesaid actions.

 

Come back and upgrade me on your case Watson.

 

Kind regards

 

The Mould

 

On the night shift for a little longer

[Smoothound]

Smoothound (of the Baskervilles), is this the Hall of Barrymoor Hall?

 

221b Watson, you have had over 20,000.00 views on your case and still no sign of even a draft Defence, what is going on here my dear fellow?

 

How old is that Application form? Oct 1994

 

Forget UR (Unlawfull recission), with respect, the correct legal terminology is repudiation of the contract, however, if there is no contract extant, then repudiation of such cannot occur since there is no contract to repudiate on. No contract, so how are you bound to repay the money claimed? The UR thing is one of the questions I am asking! If the CCA is unenforceable then a lot of my other arguments surely fall by the wayside as the account is invalid?

 

As to NOA (Notice of Assignment), are you contending with s.136 Law of Property Act 1925? Yes

 

Default notice is a statutory requirement imposed upon creditors before they can become entitled to Terminate, Demand payment of all sums and/or re-possess goods; no valid statutory Default notice served = no entitlement to aforesaid actions.

 

Come back and upgrade me on your case Watson.

 

Kind regards

 

The Mould

 

On the night shift for a little longer

 

 

 

I have a DN it is posted up earlier in the thread but here it is again for you

 

[The Mould]

Good morning Smoothound

 

1994, then the 1983 Regulations apply, if no terms and conditions/key financial information contained in the same document, then irredeemably unenforceable on the authority of House of Lords in Wilson v First County Trust. Have you stated to the Claimant's representatives that you intend to rely upon the said authority, therefore, the Claimant's action against you fails?

 

UR - do you mean unlawful recission? If yes, drop that, recission is a remedy available to the innocent party in a material breach of contract case on the grounds of the wrongdoer's repudiation of that contract.

 

Kind regards

 

The Mould

[Smoothound]

Good morning Smoothound

 

1994, then the 1983 Regulations apply, if no terms and conditions/key financial information contained in the same document, then irredeemably unenforceable on the authority of House of Lords in Wilson v First County Trust. Have you stated to the Claimant's representatives that you intend to rely upon the said authority, therefore, the Claimant's action against you fails?

 

UR - do you mean unlawful recission? If yes, drop that, recission is a remedy available to the innocent party in a material breach of contract case on the grounds of the wrongdoer's repudiation of that contract.

 

Kind regards

 

The Mould

 

All I have is a photocopy of the application form and various photocopies of terms and conditions no way of telling whether it is one document or not

[The Mould]

All I have is a photocopy of the application form and various photocopies of terms and conditions no way of telling whether it is one document or not

 

The application form is the foundation of their claim, this is the evidence the Claimant relies upon, therefore, the application form is the foundation of your Defence and if the requirements of s.61 CCA 1974 (as amended) and the subsequent Regulations (the 1983 SI in your case) were not complied with in respect of the said application form, then s.127 CCA 1974 (as amended) and the authority of Wilson v First County Trust is your complete Defence.

 

Have you printed off the full transcript of the said case law from Bailli? Further, have you printed off the 1983 SI Regulations? s.61 of the 1974 Act and s.127 of the same? These are the materials you require to build your Defence and defeat the claim.

 

Kind regards

 

The Mould

[Smoothound]

No I haven't as it's all way over my head! I just don't absorb or understand it really! I guess some of us just get shafted even when we are in the right

[The Mould]

Smoothound

 

I would advise you to print off the said case law, legislation and subsequent regulations, study the same then post up the draft of your Defence for the purposes of further advice/opinion.

 

Kind regards

 

The Mould

[Beamengine]

Having just read the whole of this thread I can understand why Smoothound is confused.

I would strongly suggest that future comments are not made in public as it is obvious that Brachers have been watching the thread and acted upon it. It would not be difficult to identify the case given the location, date and time of the hearing.

An alternative would be to post misleading information on this thread while giving advice in private. At the conclusion of the case the real evident could be made public for everyone's benefit.

[Smoothound]

I will have a look tonight after work but I was advised further up the thread that the CCA could not be relied on on it's own?

 

Another thing I still can't grasp is the fact that the Claimants can stuff me in court even though they and their DCA monkeys know there are PPI issues on the account. The fact that MBNA say they have settled F+F is beside the point in my view. The case is with the FOS still and MBNA need to show all the figures for the 10 years they have not settled!!!

Edited February 8, 2012 by Smoothound

[Smoothound]

Having just read the whole of this thread I can understand why Smoothound is confused.

I would strongly suggest that future comments are not made in public as it is obvious that Brachers have been watching the thread and acted upon it. It would not be difficult to identify the case given the location, date and time of the hearing.

An alternative would be to post misleading information on this thread while giving advice in private. At the conclusion of the case the real evident could be made public for everyone's benefit.

 

Thank you

 

It's not so much those looking in that is an issue for me. Just the way it is assumed we are all wired the same and can just go read some legal gobbledegook and then run off a defence and trot off to court and reel it off as easy as that! For many this is not something they can do easily myself included

 

Beamengine the advice on here is to avoid private message help and to keep things in the open as it is less easy for a DCA etc. to misled someone because there are many others watching.

Edited February 8, 2012 by Smoothound

[Smoothound]

The application form is the foundation of their claim, this is the evidence the Claimant relies upon, therefore, the application form is the foundation of your Defence and if the requirements of s.61 CCA 1974 (as amended) and the subsequent Regulations (the 1983 SI in your case) were not complied with in respect of the said application form, then s.127 CCA 1974 (as amended) and the authority of Wilson v First County Trust is your complete Defence.

 

Have you printed off the full transcript of the said case law from Bailli? Further, have you printed off the 1983 SI Regulations? s.61 of the 1974 Act and s.127 of the same? These are the materials you require to build your Defence and defeat the claim.

 

Kind regards

 

The Mould

 

 

Right I have now got the case in question and also CCA 1974 s.61, s.61a(I don't think b applies) and s.127. I also have the 1983/1553 SI. I've read through some now and it seems it would make more sense to me if written in Chinese

[The Mould]

Good evening Smoothound

 

Read the Wilson v First County Trust case first (don't rush through the transcript), also, see Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile), print that case of and digest, this will help you to formulate your argument as to why the application form is not a credit agreement pursuant to the requirements of statute (the CCA 1974 - s.61) and the said 1983 SI, therefore, irredeemably unenforceable. End of Claimant's case.

 

Kind regards

 

The Mould

[car2403]

Your defence to this claim is complete, due to the unenforceable agreement.

 

If you intend on claiming the PPI back, it's appropriate to counterclaim against them, but you would need to drag the OC in to the claim to do that, as it's complicated with a 3rd party being involved.

[Smoothound]

Your defence to this claim is complete, due to the unenforceable agreement.

 

If you intend on claiming the PPI back, it's appropriate to counterclaim against them, but you would need to drag the OC in to the claim to do that, as it's complicated with a 3rd party being involved.

 

Thanks car but earlier in the thread you mentioned that it may not be enough and we should have other things to back it up?

 

I am now getting there but still don't fully grasp why the CCA is fully unenforceable? Maybe I'm just thick I don't know