Experto/Varde now Arrow/Shoos Claimform - old MBNA card debt

[citizenB]

That seems to be the case yes

 

andyorch should be around later on today, I am sure he will look in and confirm

[MrHat]

Following

[roygoodbeat]

Just had the defense from arrow global. That's 6 weeks after the due by date. Can I object to this at the court as it is clear beach of the order. Need to get a letter to the court asap

[citizenB]

Just had the defense from arrow global. That's 6 weeks after the due by date. Can I object to this at the court as it is clear beach of the order. Need to get a letter to the court asap

 

What did the order actually say ?

 

Did it suggest that if the statement wasn't submitted by DATE then it would be struck out ?

[roygoodbeat]

No

[citizenB]

Then yes, I guess you could advise the court that they are 6 weeks past the deadline, but I don't see any sanctions.

 

Did you mention the lack of defence to the court earlier ?

[roygoodbeat]

Hi

 

Need some advice. I have a claim to be heard in court on the 6th September. I have submitted a defense and a witness statement but have not gone into specifics on either. Only that I have only received an application form to my subject access request and credit agreement request. I have stated that I have never received all the t and c's for this. I have also stated that I believe the default notice to be faulty. I have attached both. I feel that I have a strong case for this and have attached the relevant documents. Can anyone point me in the direction or advise me what case histories/ acts I can use to defend these. This was taken out in 2003.

 

1) Application form which they are claiming is the credit agreement. I have only received an mbna reconstructed t & c's. Not the original creditors. Am I also right in saying in the Wakesman case, it was stated that all the t & c's should be supplied if they have been altered. Also if this is meant to be the agreement, this does not comply with the consumer credit act.

 

2) Default notice. MBNA who took the account over issued a default notice after 6 months for the full amount. The issue date was the 9th October, to be paid for in full by 26th October

 

Any advice would be welcome.

[citizenB]

Default Notice issued FRIDAY, October 2009.

 

This means that you would not have received the DN until Tuesday, 15th October as MBNA always used UK Mail (S) around this time so it would have been 4/5 days in the postal system. This did not allow you the statutory 14 days to remedy.

 

They asked for the full amount. This is not the purpose of the Default Notice - it is for arrears only.

 

They can only ask for accelerated payments after a DN has been issued and expired.

 

It is my understanding that when complying with a CCA request you are to be provided with

 

A copy or truthful reconstruction of the agreement.

Terms and conditions from inception and at default - where there have been variations to the agreement, these are to be provided as well.

Statement of account showing any default charges applied.

 

I have never seen that type of "Reservation" form before.

 

 

 

I wonder if Harrison v Link will be of any value to you ?

 

Harrison v Link Financial Ltd ALL ER (2011).pdf

 

Were you ever sent any "Notice of Sums in Arrears" I think this came into force around 2008.

 

 

Legislation - http://www.legislation.gov.uk/uksi/2007/1167/pdfs/uksi_20071167_en.pdf

 

 

Quote

86B Notice of sums in arrears under fixed-sum credit agreements etc.

 

(1)This section applies where at any time the following conditions are satisfied—

 

(a)that the debtor or hirer under an applicable agreement is required to have made at least two payments under the agreement before that time;

 

(b)that the total sum paid under the agreement by him is less than the total sum which he is required to have paid before that time;

 

©that the amount of the shortfall is no less than the sum of the last two payments which he is required to have made before that time;

 

(d)that the creditor or owner is not already under a duty to give him notices under this section in relation to the agreement; and

 

(e)if a judgment has been given in relation to the agreement before that time, that there is no sum still to be paid under the judgment by the debtor or hirer.

 

(2)The creditor or owner—

 

(a)shall, within the period of 14 days beginning with the day on which the conditions mentioned in subsection (1) are satisfied, give the debtor or hirer a notice under this section; and

 

(b)after the giving of that notice, shall give him further notices under this section at intervals of not more than six months.

 

(3)The duty of the creditor or owner to give the debtor or hirer notices under this section shall cease when either of the conditions mentioned in subsection (4) is satisfied; but if either of those conditions is satisfied before the notice required by subsection (2)(a) is given, the duty shall not cease until that notice is given.

 

(4)The conditions referred to in subsection (3) are—

 

(a)that the debtor or hirer ceases to be in arrears;

 

(b)that a judgment is given in relation to the agreement under which a sum is required to be paid by the debtor or hirer.

 

(5)For the purposes of subsection (4)(a) the debtor or hirer ceases to be in arrears when—

 

(a)no [F2 payments] , which he has ever failed to [F3 make] under the agreement when required, [F4 are] still owing;

 

(b)no default sum, which has ever become payable under the agreement in connection with his failure to pay any sum under the agreement when required, is still owing;

 

©no sum of interest, which has ever become payable under the agreement in connection with such a default sum, is still owing; and

 

(d)no other sum of interest, which has ever become payable under the agreement in connection with his failure to pay any sum under the agreement when required, is still owing.

(6)A notice under this section shall include a copy of the current arrears information sheet under section 86A.

 

(7)The debtor or hirer shall have no liability to pay any sum in connection with the preparation or the giving to him of a notice under this section.

 

(8)Regulations may make provision about the form and content of notices under this section.

 

(9)In the case of an applicable agreement under which the debtor or hirer must make all payments he is required to make at intervals of one week or less, this section shall have effect as if in subsection (1)(a) and © for ‘two’ there were substituted ‘four’.

 

(10)If an agreement mentioned in subsection (9) was made before the beginning of the relevant period, only amounts resulting from failures by the debtor or hirer to make payments he is required to have made during that period shall be taken into account in determining any shortfall for the purposes of subsection (1)©.

 

(11)In subsection (10) ‘relevant period’ means the period of 20 weeks ending with the day on which the debtor or hirer is required to have made the most recent payment under the agreement.

 

(12)In this section ‘applicable agreement’ means an agreement which—

 

(a)is a regulated agreement for fixed-sum credit or a regulated consumer hire agreement; and

 

(b)is neither a non-commercial agreement nor a small agreement.

 

[F5 (13) In this section—

 

(a) “payments” in relation to an applicable agreement which is a regulated agreement for fixed-sum credit means payments to be made at predetermined intervals provided for under the terms of the agreement; and

 

(b) “payments” in relation to an applicable agreement which is a regulated consumer hire agreement means any payments to be made by the hirer in relation to any period in consideration of the bailment or hiring to him of goods under the agreement.]

 

 

Quote

86D Failure to give notice of sums in arrears

 

(1)This section applies where the creditor or owner under an agreement is under a duty to give the debtor or hirer notices under section 86B but fails to give him such a notice—

 

(a)within the period mentioned in subsection (2)(a) of that section; or

 

(b)within the period of six months beginning with the day after the day on which such a notice was last given to him.

 

(2)This section also applies where the creditor under an agreement is under a duty to give the debtor a notice under section 86C but fails to do so before the end of the period mentioned in subsection (2) of that section.

 

(3)The creditor or owner shall not be entitled to enforce the agreement during the period of non-compliance.

 

(4)The debtor or hirer shall have no liability to pay—

 

(a)any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; or

 

(b)any default sum which (apart from this paragraph)—

 

(i)would have become payable during the period of non-compliance; or

 

(ii)would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).

 

(5)In this section ‘the period of non-compliance’ means, in relation to a failure to give a notice under section 86B or 86C to the debtor or hirer, the period which—

 

(a)begins immediately after the end of the period mentioned in (as the case may be) subsection (1)(a) or (b) or (2); and

 

(b)ends at the end of the day mentioned in subsection (6).

 

(6)That day is—

 

(a)in the case of a failure to give a notice under section 86B as mentioned in subsection (1)(a) of this section, the day on which the notice is given to the debtor or hirer;

 

(b)in the case of a failure to give a notice under that section as mentioned in subsection (1)(b) of this section, the earlier of the following—

 

(i)the day on which the notice is given to the debtor or hirer;

 

(ii)the day on which the condition mentioned in subsection (4)(a) of that section is satisfied;

 

©in the case of a failure to give a notice under section 86C, the day on which the notice is given to the debtor.]

 

 

 

Are all the prescribed terms within the agreement ?

Edited September 1, 2013 by citizenB

[roygoodbeat]

In the MBNA default ntice, they refer to clause 8 f. In the mbna t & c's, there is a clause 8f:

 

Subject to sending you any notice required, you, or your legal representatives, must immediately pay your whole balance (INCLUDING ANY INTEREST RATE CHARGES AND FEES DUE) and we may refuse to authorisefurther transactions if:

this agreement ends.

you fail to make a payment or repeatably break this agreement and fail to sort the matter out.

a bankruptcy order is made against you, or you make a voluntary arrangement with your creditors.

 

Yes, I never received my t&c's for Bank of Scotland or the back of the reservation form. or any other t&c's where there have been any variations.

 

I was sent a notice of sum of arrears.

 

And sorry, the case is due Monday 9th. I have filed a defense and witness statement. None refer to case law. I'm trying to get that part together ready for Monday. There is nothing else I need to submit until then is there?

[AndyOrch]

Threads merged please do not start a new thread on the same matter.

 

Regards

 

Andy