Backdoor Arrow/Drydens 2008 CCJ/CO - MBNA Card - , debt was already SB'd , **WON** set aside - Now being chased 12yrs later.!!

[supasnooper]

Hi MJ,

Have read of this thread were steven4064 explains about Consumer Credit Agreements.

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html

[42man]

A Lot of people are reluctant to give an opinion on agreements as they aren't sure especially as so much rides on being right or wrong. Remember judges do vary wildly...

[mandyjayne]

Hello..and thanks 42 man for the last post!

 

A big thanks snoops for helping me out with posting my CCA's. Thanks for the link i will read in a mo..

I really don't know what to do from here on..my set aside hearing is on 11th March. Will it go down the statute barred or unenforcable agreement route or none of these?

feeling totally fed up and dont know what i should be doing with this anymore.

Can someone tell me how to post links to my thread, step by step idiots guide pls! Will try what Von G suggested..posting in "Is my agreement enforceable"

Edited January 15, 2009 by mandyjayne

[supasnooper]

Hi MJ,

 

I would advise you go for the statute barred route. It is the safest option as it has case law to back this up, together with the onus being on the claimant to prove it is not statute barred. I trust you've read the links in 42mans earlier post in this thread.

http://www.consumeractiongroup.co.uk/forum/show-post/post-1822847.html

 

 

As I've said earlier, your agreements do meet s78 of the Consumer Credit Act 1974 but would need to be proved by the claimant that the two sides of the Credit Card Agreements you've received are of the one same document to a judge who may like the way a claimant has framed their legalese spiel.

 

If you wish to post a link to YOUR thread on another thread -

 

1/ Make sure you are at the first page of YOUR thread then click into the address bar of your thread( the text should turn blue).

 

2/ Right click on the blue text and select "copy" from the drop down menu.

 

3/ Go to the thread you wish to post YOUR thread in.

 

4/ Write a post and then if you right click within the message box and select "paste" the link will appear.

 

Hope this helps.

[mandyjayne]

What would i do without you!! Thanks again Snoops i will give it a go:D

So just to clarify..do i need to be doing anything at this stage..or have i done all i can?

regards MJ

[supasnooper]

I would research as much as I could about statute barred cases - have a look through the *won* threads is a good place to start.

 

You'll need to know your case inside out as it will be you who will be at Court with the knowledge to get the result you want, whilst the rest of us can only hope you do well.

 

Also have a look at other Statute Barred threads on the questions and tactics they have used in Court and start to draw together what is applicable to you.

 

Also worth looking at this thread from post #13 for what happens at Court

http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html

 

What are your thoughts on pursuing a court order for non-compliance of the Subject Access Request ?

I know this costs money but it will be the only way of getting any further documentation

[mandyjayne]

Hi Snoops

 

I thought i received all they had regarding my CCA/Subject Access Request (post 86) from the solicitors. Would there be more i could drag out of them via a non compliance court order?

As for reading up on other cases i have done nothing else since my first post back in November! It seems to have taken over my life:mad:..im on here every spare second i have..! I thank you again for your never ending help

 

MJ

Edited January 19, 2009 by mandyjayne

[Von Greenbach]

It seems to have taken over my life:mad:..im on here every spare second i have..!

Hi Mandy

 

I understand where you're coming from, when I was preparing my defence I was so confused I didn't know if I was coming or going, but I found a solution.

 

Break down what you need to do for your case, for example write down everything you need for your case, then deal with each issue separately and gather the information for each part including any legislation, case law etc,. etc,.

 

View it like this, this is your chance to prove your case, don't take it for granted the judge will be up to date with consumer law, you're going to have to prove what the claimants error are.

 

As mentioned, at first I found the whole defence process a nightmare, but following my advice above may make it more manageable.

 

I'm a great beliver in the ABCD process, if you can follow that process you may find it much more easier to deal with.

[supasnooper]

I note from post 86 that you don't seem happy with what you have received.

 

Could you break down the SAR paperwork you have received for example -

 

Credit Card agreement.

Default Notice.

Account statements

Copies of letters sent to you.

etc.

 

Check the paperwork has the correct account number on it.

Check the statements to see if they indicate an account number the alleged credits come from.

Make a list of dates these alleged credits were made.

[mandyjayne]

Hi Snoops

 

1. The credit card application form i received is posted on here.

2. There was not a Default Notice in the paperwork.

3. No account statements, just a "FACT SHEET" they have titled it.

4. There is no account number, just the solicitors ref no, and case

number.

 

Should i have been sent the monthly statements from MBNA which tells you what youve paid the interest rate etc?

 

No copies of letters, literally all i have received is this fact sheet with a covering letter, saying please find enclosed all information we hold on file in relation to the above account.

 

Also included is a print out of my Experian credit file, print out from the land registry, and telephone calls/text they are supposed to have made.

 

Can i send them any other letters at this stage?

 

MJ

[supasnooper]

You should write back to MBNA informing them that your Subject Access Request is incomplete.

Request all statements for the account.

Mention that if they have no further documents then they should issue a letter to confirm this.

Also ask that if any documents have been destroyed by them then they should issue you with a Certificate of Destruction for those documents.

 

The only other way to get them to disclose further documents would be to take them to court for non-compliance of the Data Protection Act.

 

You should also lodge a complaint with the Information Commissioners Office but don't expect a quick response but it will cost MBNA £500 if the ICO decide to investigate your complaint.

 

Check the credit file - it should state when they defaulted the account.

[mandyjayne]

Hi...

 

My cca/Subject Access Request are all being dealt with by DCA's solicitor, due to Arrow Global being based in USA, the debt is no longer MBNA'S. Am i to assume all i have received is all they have..wouldnt my file/paperwork have been passed on to Arrow when it was bought?

I have found a letter posted by fedup74 from "is my agreement enforceable" where another cagger has been sent the same as me from Mbna, will give that a go!

Question: I Should have been sent a default notice and a letter of assignment at some stage..right? Should these have been in the Subject Access Request?

I will wait for a reply before sending the latest letter:) thanks MJ

Edited January 17, 2009 by mandyjayne

[supasnooper]

Answer - Yes, all documents relating to you should be disclosed under the Data Protection Act.

[mandyjayne]

Hi..

 

my credit file say's they defaulted the account on 30th May 2006. No default notice received

 

Now my defence for the set aside was going down the statute barred route..its clear now they have not and maybe can't send me the true agreement, default notice and notice of assignment. Do i need to inform the court, (add to my defence) write Arrow/sols another letter? ie (the one im going to post below ) please advise.

 

bump

 

Would this letter be ok to send due to the "application form" received from cca request/Subject Access Request.. maybe need to add in here somewhere about notice of assignment and default notice not received but not sure where it would go and how to word it! any help please...MJ

 

This is the letterConsumer Credit Act 1974

 

Thank you for your letter dated *******.

 

It would seem that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1).

 

You have provided me a copy of an application form and I feel it is my duty to draw your attention to some serious flaws in your comments.

 

Firstly, to comply with section 61 of the consumer credit act 1974 which by the way refers to the signing of an agreement (Not an application), a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed

 

Now then, these regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

 

For your information in case you are unsure. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

(a)Number of repayments;

(b)Amount of repayments;

©Frequency and timing of repayments;

(d)Dates of repayments;

(e)The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

Now nowhere on the application form that you supplied is there any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect

 

Since the document you have supplied is a clear mailer application form, I cannot believe for one moment that these very important terms would be contained on the opposite side of the form, unless they are there for the postman to read while he delivers the mail. Therefore they must have been contained in a separate document, which is prohibited by the SI1983/1553, as there is no clear link to them within the signature document.

 

Therefore, you have failed to supply an enforceable document, which is correctly executed as to be so; it must conform to the Regs under s60 CCA1974

 

I am of the opinion that a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74, the consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed and contains all the prescribed terms. Now since this document does not contain all the prescribed terms s127 (3) CCA 1974 strictly prevents the court from enforcing this agreement.

 

If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading .

 

I respectfully request you review this matter in light of my comments above and I request that you supply me the required information or alternatively confirm the account is closed and the debt written off with a zero balance.

 

I respectfully request a reply within 14 days of the date of this letter.

 

Yours Sincerely

 

Can someone advise on weather i should send the above letter please?

Edited January 19, 2009 by mandyjayne

[Docman]

Hi MJ

First of all, I suggest you do NOT send the letter.

S78 of the Consumer Credit Act 1974 is a section of the Act that a person can find out about a credit agreement they have entered into. Mortimer Clarke have already told you that they consider the agreement at an end because they have a CCJ against you. Whilst I would disagree with MC, the fact is that pursuing them on a S 78 request is not going to get you anywhere. In fact, they are probably smirking at the amount of energy you are expanding upon a S78 request when they know you should be asking them about your application to set aside the CCJ (the N244 application).

Secondly, ditto the Data Protection application because MBNA will argue that they have assigned the debt to Arrow Global who (they will claim, wrongly) is the party you should ask. Since Arrow Global are a US firm, you have to send requests to MC, and back to my point above.

What you need to do is set out your grounds in the N244 application. You will have to assume that the Judge may not know anything about consumer credit law, and therefore you have to spell out all the relevant parts of the law. In doing so, you have to deal with all the points put down by Arrow Global in their 'Particulars of Claim' at the start of the claim.

I also have to point out that you are starting from a disadvantage. When Arrow Global obtained the CCJ, you effective went over the edge, so to speak and you now have to come back - uphill! Not easy, but it is possible to get this sorted out.

Right, that's the end of the bad news. Now for the good news. You have a very strong case, and have a choice of avenues to go along. But first, can you fill in a couple of pieces of information. As I understand matters, you have applied to have the INTERIM charging order quashed and the original CCJ set aside. Is that correct? When you made you N244 application, did you complete part C by typing details onto the form or did you submit a separate 'witness statement' along the lines of your earlier post? I am thinking you should submit a witness statement setting down what would have been your defence if you had had the opportunity to submit one last August/September.

 

[mandyjayne]

hi Docman

and thank you so much for your reply, I have not sent that letter. I have sent my n244 with a witness statement attached, to my local county court and a hearing is on March 11th, (drafted for me by Ell-enn,) to set aside the ccj and interim charging order, my computer is down at the moment so struggling by any means to get on here .can you comment on my documents recieved via my cca-sar as it did not include a default notice or notice of assignement. this is what i am worried about should i be doing anything to get these if they have them? so it looks like i am doing everything right upto date? thanks again MJ

[Docman]

Hi MJ

 

Was your witness statement as set out in the attachmnet to post#42? If so, I think you need to add to it to answer all the points in the Particulars of Claim from Arrow Global, as set out in post #24.

 

But before you do, you will need to get some information from MC, or at least have given them the opportunity to supply the documentation. As it stands at the moment, they would say you haven't even bothered to ask them in the proper manner (the S78 request and Subject Access Request would not count).

 

You should ask using the Court's rules (known as the CPR) and in particular rule 31.14. When ( and if) MC respond, you can then set out a 'defence' as a witness statement. In that statement you can deal with the claim and support your N244 application.

 

There are a number of versions of a 31.14 letter on CAG but I prefer the following amended form an excellent draft originally from surfaceagentX20.

"

Then wait for a couple of weeks and send a reminder and so on until the end of Feb. You will then be in a position to submit your amended witness statement either commenting on what MC send you or be able to show they have ignored several requests from you.

 

 

Doc

[mandyjayne]

Hi Docman

 

Thank you for the letter posted..i have just done it and will send now recorded delivery..you have explained things, and i understand:D

 

question:

 

When and if i get a response from MC, how do i add to my witness statement that is already with the court?

 

They have 14 days to get back to me i will send a reminder (with your help) if nothing received.

 

My computer at home needs a PC engineer..harddrive/softwear problems i am desperate without it:mad: due to having to get updates on here!

 

A friend is helping out, but i can only get on here once a day.!

 

Thanks again and we shall see what comes back:eek: MJ

[Docman]

As far as I know, you can just file a witness statement to support your application but I not 100% sure. I would appreciate any guidance from other Caggers.

[mandyjayne]

bump

 

bump...

[Docman]

Hi MJ

 

Sorry but I've been tied up at work for the last few days. I'll have a stab at a witness statement for you tomorrow when I'm back in my office.

[mandyjayne]

Hi docman thank you very much for your reply, i won't be back on here until thursday now computer still not working i will keep my eyes peeled for your witness statement:)

thanks MJ

 

any idea how i add to my witness statement that is already filed with the court? anyone please:confused:

 

bump

 

Hi all

 

not getting any replies!! can someone please help with the following:

 

1. My CPR31 sent eight days ago recorded delivery, nothing received from DCA or solicitors.

What do i do now please??

CPR31 says if they dont reply within the time scale i should apply to the court to have the case struck out?? how do i do this?

 

2. Already have filed a witness statement with the court, i now need to add to it, how do i do this and can i do this????

 

Please someone help i am stuck and dont know what to do from here!!

 

thanks MJ

[supasnooper]

What CPR 13 letter did you send ?

 

 

Why do wish to amend your witness statement at the moment ?

 

As docman has suggested earlier, the ideal time would be towards the end of Feb but at least 7 days before your hearing when you should have a response to your CPR 31.14 request.

[DocH]

You need to submit a N244 to the court as detailed in surfaceagentx20's excellent thread here:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-3.html#post1771008

[mandyjayne]

thanks supasnooperi made a mistake not cpr 13 its cpr31 sorryi need to know how to do this if they don't reply within the time scale which they have not. 7 days were up on the 30th januarywhat do i do now, sorry still no computer so if replies are delayed i am sorry as i can only use a friends when availableMJ