MBNA card - just got court summons - please help

[BRIGADIER2JCS]

Thank you so so much; I really do appreciate this.

You are most welcome, please post up the details of the new claim then the others can advise fully.

[IdaInFife]

It is highly likely they will be able to provide a printout of the rest of the terms and conditions as they are the basic terms and conditions supplied to everyone that applies and will be easy for them to produce which will include passing to third parties etc. as this is an online agreement.

 

Are these your only debts?

[TheHighlander]

Hi, I'll be scanning the second summons today.

 

@IDAinFife - They may well be be able to do that;

however; those terms and conditions were not presented to me when I signed the original agreement

nor were they ever sent to me;

the Agreement I saw and signed is the one that I have attached earlier in this thread.

 

Interestingly enough on the copy of the credit agreement they sent me;

on one of the last pages AFTER where I signed and agreed to the contract

it does go on to mention further terms and conditions

 

- now, on the original web page; I scrolled down to the box where it said 'click here to agree'

and clicked it and pressed 'next'.

 

At no point were further terms and conditions made obvious or known to me;

had they been;

had I been told that my debt could be sold to any third party and I'd be obligated to adhere to a third partys contractual demands;

I'd have never signed in the first place.

 

the whole thing just seems shady to me.

 

MBNA point blank refuse to discuss my account;

they then sell this to a third party who do not make contact with me;

I keep trying to talk to MBNA and eventually get told my account has been closed...

 

.I check my credit report and it shows the account as settled...

 

.and then 18 months letter I get a court summons from a third party I've never heard of claiming I owe them thousands

and tkaing me to court and

 

I'm being told that MBNA can do anyting they want with my 'simple' debt including selling it for 20p in the pound so another company can make some profit!

[IdaInFife]

http://www.legislation.gov.uk/uksi/2004/3236/introduction/made

 

Is the online agreement cca.

 

You can request the info you need via an Incidental application to the courts which if i read correctly you have already done for other requests.

 

I am just being honest with you as online agreements are deemed more water tight and I cannot personally see any defense for you. You may wish to look for any PPI or penalty charges claim against the outstanding balance.

[BRIGADIER2JCS]

Good morning Ida, thanks for looking at this!!

[TheHighlander]

Thanks Ida; appreciate your feedback. I appreciate what your saying

 

- so is it not the case where all terms and conditions need to be presented so that proper consideration can be given?

 

It sounds as if they can present a basic agreement and then refer to additional terms later on after the point where you agree to the contract.

 

Unfortunately; with the two credit cards combined they come to around £9000; of which I have no realistic way of paying.

 

So if it's the case where they can apply t and c's without showing you them,

they can sell that debt for pennies in the pound and have a third party apply new contractual terms and sue you in court - this doesn't seem right to me

 

Would seem the my only two options would be; 1. negotiate a settlement; say offer them £4k (which I could raise through family) or sequester myself.

[Crocdoc]

I am with Ida on this one, I think it will be difficult to defend this one but there is nothing to lose by trying.

 

Lets say that you lose,

in your circumstances there is very little they can do even with Decree as you have no assets.

It is possible of course that they will try an arrest your wages if they know who your employer is.

Therefore if they go down this route you can sequestrate at that stage and that hits that one on the head.

 

Another option is to make an application for sequestration in advance of the hearing, this would stop everything.

 

On the other hand, you could do absolutely nothing and just let them obtain Decree,

it is important to remember that many companies never actually act on the strength of the Decree,

this may seem strange but true nevertheless.

 

Personally, I would never consider borrowing money from family to pay a debt collector,

if you look at this realistically, if you cant pay the DC then you will not be able to repay your family.

 

It is much easier to tell a debt collector to get stuffed and sequestrate your way out of it (IF NEED BE) you would not want to be in this situation with family or friends.

 

I read an earlier post in which you suggested paying £50.00 per month.

 

To me this is not an option as it would take 15 years to repay 9K and the court will most certainly reject this offer.

 

Furthermore, 8% Statutory Interest will be added making it impossible to make inroads at this level of payment.

 

In conclusion, if I were in this position I would do nothing at this stage and simply let them have their Decree,

obtaining Decree is one thing enforcing in it your circumstances is something else and in the event that they have any success, pull the plug at that stage.

 

I see no real purpose in Bankruptcy unless you back's to the wall.

 

Why not play a wait and see game.

Edited May 9, 2013 by Crocdoc

[TheHighlander]

Got an email from the solicitor this morniing regarding that CCA thing you guys suggest I send.

 

We refer to the above and to previous correspondence, particularly your email below dated 6 May 2013. We confirm that we have received the hard copy of your letter pursuant to section 77/78 of the Consumer Credit Act 1974 (“the CCA”) and we have passed this to our clients for acting.

 

As you will be aware, the time limit to comply as prescribed by the CCA is 12 working days and if our clients are unable to comply within the period the agreement remains unenforceable until they can do so. Given that the time limit for compliance with your request does not expire until after the next court date on 21 May 2013, we suggest that the court action be sisted (put on hold) until our clients have produced the information requested by you in terms of sections 77/78 of the CCA and you have had the opportunity of considering same.

[BRIGADIER2JCS]

Good confirm that you agree!

[TheHighlander]

My response:

 

Hi Marianne,

 

Hope you are well and had a good weekend. Thanks for your email; yes I agree that would be the sensible thing to do and am happy for you guys to express that to the court on my behalf. Thanks and look forward to hearing from you.

 

Regards

 

I'm not entirely sure what she means by 'remains unenforceable until they can do so' ?

[BRIGADIER2JCS]

If the agreement is ''not available'' the account is unenforceable in court until it is produced.

[TheHighlander]

Would this not be subject a time restriction; i.e. they must produce it within X amount of days otherwise the whole action gets dropped or is this just a temporary reprieve?

[BRIGADIER2JCS]

Would this not be subject a time restriction; i.e. they must produce it within X amount of days otherwise the whole action gets dropped or is this just a temporary reprieve?

 

Yes 12+2 working days but they are attempting to retrieve the agreement from the original creditor so a little lee way is allowable.

[TheHighlander]

Yes 12+2 working days but they are attempting to retrieve the agreement from the original creditor so a little lee way is allowable.

 

Hey chaps, if they are unable to comply within the time given; what happens then?

[BRIGADIER2JCS]

Hey chaps, if they are unable to comply within the time given; what happens then?

Allow a further 7 days after the 'due date' the send the account in dispute / failure to comply letter from the CAG Library.

[TheHighlander]

Thanks for the reply buddy, most appreciated Hope you had a good weekend.

[BRIGADIER2JCS]

Thanks for the reply buddy, most appreciated Hope you had a good weekend.

 

Morning Highlander,

Fine weekend for a change!!!

Let us know how the CCA request progresses please!

[PRBrown]

If it's any consolation I'm aware of a recent MBNA case in Scotland where there was an online application and the arguement was based around whether a tick was sufficient substitute for a signature. Although the outcome is subject to a confidentiality agreement I'm aware of the arguements used in defence and the defendant did seem to be happy.

 

I have some notes here, but please take them as they are. They might be relevant to your case and you may be able to extract some information or argument that might be useful to you, but you'd be best to consult a solicitor.

 

1. Their right to sue depends on a valid assignation – therefore it must be founded upon. Laws of Scotland confirm this – assignation must take place for the debt to be legally theirs topursue.

 

2. The assignation MUSTbe intimated – means nothing until intimated to you.

 

3. Both must exist – why intimate unless assignation took place – yet the document they have produced does not contain the correct address because they didn't know where you were by their own admission

 

4. They might suggest that that the agreement lodged in process does not matter because the fact that it is anonline agreement means there is no document. The electronic agreement, having been founded upon, must be lodged in process either in its original electronicform or in some suitable alternative. The Pursuers themselves, having lodged aprinted copy in process, have chosen the latter, therefore this form would haveto be complete and true to the original agreement as per 127(3) for thepurposes of enforcement, and also for Rule 21.1 of OCR1993.

 

No agreement = no obligation to pay. Musttherefore be an agreement.

5. A bit speculative and circular as an extension of point 4 -

they might end up confusing the document vs the agreement.To be a CCA it must comply with the prescribed terms or it cannot be relied upon. It could be that they might end up saying that what they have lodged is NOT the agreement, because the original agreement was in electronic form. This would have been fine if they had chosen to submit a copy of the agreement inelectronic form eg on cd or dvd. However, since they have chosen to provide a printed copy of the electronic agreement both in response to a Section 78 request, and may also present it to court in their Inventory of Productions, they will have founded upon said document and also referred to it for its terms in their pleadings. Given the shortfalls they can't then turn round and say this document is not the agreement.

 

 

 

[citizenB]

Would this not be subject a time restriction; i.e. they must produce it within X amount of days otherwise the whole action gets dropped or is this just a temporary reprieve?

 

In the English courts, this extension between parties can only be made for up to 56 days I think. 2 x 28 days extension. Then it would need for the court to be petitioned for an extension for a longer period.

[BRIGADIER2JCS]

Correct, often the 2nd application may be granted but will be allowed without leave to make further application.

[AndyOrch]

CPR 15.5 will only allow 28 days any further extension must be by way of an application notice N244 and fee and with the courts permission.

 

Regards

 

Andy

[TheHighlander]

Hi Guys, thanks for the above information - a little over whelming for my small mind Ok; I am sending a CCA for the second Credit card they are pursuing today. With regards your post PRBrown (thanks by the way) - they are claiming that the summons to court counts as notification of the assignation of the debt; now by their own admission they could not find me; and had sent an intimation to an address I was no longer at.Sorry guys I know it must be challenging for you guys to explain all of this simply; but honest;y; I'm not the brightest star in the sky and struggle with all of this!

[PRBrown]

One thing to remember about this process is their solicitors are much better practiced at this than you are and they don't have as much to lose as you. Their paperwork and responses will exude confidence to wear you down mentally so you feel like giving up. Even when their backs are seriously on the ropes and they know they have little chance of winning, their tone won't change.

 

I'm not clear at what stage you're at. Are you still at the period of adjustments or are you much further on?

 

they are claiming that the summons to court counts as notification of the assignation of the debt

Just because they say it, doesn't make it so. It's up the the Sheriff to decide, and you have a strong point, but whether it would be fatal to their whole case I don't know.

 

I think the ultimate defence for you isn't going to come from the assignation of the debt - if they've got it wrong this time, they could remedy it later - so you haven't got rid of them. You need to focus on what is relevant and what will protect you. Going on about what is fair - or not - doesn't wash with the judges. You didn't receive an assignation - so what? What law can you come up with to show that by not providing you with proper notice they have no right to pursue the case against you now? You need case law and statute to quote and use, not "it's not fair", "how can they?". Harsh, but this is court, and pleading fairness will get you nowhere except joining the list of those with judgements against them.

 

I'd say focus on whether there is an enforceable debt in the first place. From the paperwork they've sent so far (that you've mentioned) I'd say they haven't even begun to prove their case, but you need a strong focus on the law and absolute requirements of CCA 1974 as ammended to put together a robust defence. If you really don't understand the CCA, it's requirements, and the law, then it will be very difficult for you to defend even if you have a strong case.

 

In situations like this you NEED a solicitor on your side - even if it's just to provide some advice while you defend yourself. To defend yourself you need to immerse yourself in everything to do with the CCA and Scottish Law and use the solicitor to guide you. In many ways Scottish Law is much fairer, more strict, and less prone to the sort of nonsense you now read about happening in English Courts reagarding things like reconstituted agreements masquerading as acceptable substitutes for the real thing, or signed applications being agreements, but you have to know how to use and apply it.

 

Sheriffs are unlikely to really or truly understand the intricacies of CCA 1974 and you may need to teach them, but one thing they will absolutely understand is contracts,and if you can frame your defence in terms of contracts and whether one exists or not, you'll be making it easier for the Sheriff to understand your arguments and side with you.

 

Have you tried your home insurance? Do you have legal cover? My insurance company paid for my defence in a credit card dispute regarding whether the CC company had complied with s78. They paid for initial review, review by a consumer specialist Advocate (there's only 1 in Scotland who does this I believe), and for my solicitor throughout the case. My case isn't subject to a gagging order because they didn't ask for it and we won. I think, from what you've said, you have a strong "s78 not complied with" and they haven't done enough to prove that you own them ANY money. This could be chanded in a flash depending upon whether you did receive another document to sign as per post 43.

 

One final thing to think about. MBNA will probably have sold on your debt with a proviso that they don't want to be bothered about it. If this goes to proof you need to have questioned enough of their case where it would require someone from MBNA to attend. The reason for this are:

 

1. The won't want to send someone all the way up to Inverness

2. If the amount doesn't justify it then they almost definitely won't

3. MBNA will have told the owner of the debt that they are on their own.

 

Put simply, MBNA are unlikely to help the current debt owner at all, so if their case depends upon representatives from MBNA being there or even doing more work than they have already done (e.g. paperwork) then there's a good chance they won't come...scuppering the pursuers case for them. This isn't foolproof but I'd put money on that they will attempt to settle in these circumstances and it's up to you to hold out. Being solicitors, even when they know they have no chance, their nature (with you as a litigant in person) will demand they get something from you....even it it's just a pound. Tell them no.

Edited May 23, 2013 by PRBrown

[TheHighlander]

Thanks for the above mate; much appreciated. Unfortunately I have no legal cover whatsoever and I'm not in a position to pay for one. The 12 days have now expired on that CCA request; I will go to the library and find the letter to send to follow up. I have sent a CCA request for the second credit card debt (being heard in another court; same solicitor firm (but different solicitor) and same company that bought the debt). Do you have any sugegsitons on how I can frame the evidence in terms the sherriff / magistrate will understand?

[TheHighlander]

Canb anyone point me to the failure to comply letter? Can't find it....sorry!