Link Claimform - MBNA card 'debt' **WON**

[stebiz]

It will also take until the end of July before a one month stay of settlment, requested by Link, will be lifted. Then I have to wait for a court date. This could take 6 months with the speed this is going.

 

Stebiz

[hellhasnofury]

Hello Stebiz.

 

Just subscribing to your informative thread, basically I am in the same boat and awaiting a court date:confused:

 

It is truely amazing what they think they can get away with:evil:

[stebiz]

Rang up the court today. They say it is with the judge. Should hear shortly. Fingers crossed it doesn't get to a hearing and is thrown out due to 'no CCA' - but we'll wait and see.

 

Stebiz

[hellhasnofury]

Rang up the court today. They say it is with the judge. Should hear shortly. Fingers crossed it doesn't get to a hearing and is thrown out due to 'no CCA' - but we'll wait and see.

 

Stebiz

 

Hello stebiz,

I am keeping everything crossed for you:D

[noomill060]

When did you send request for your CCA? You say didnt include the £1 .

 

You would be advised to do the job properly ASAP, and send the template letter, stating that under s.77/78 of the CCA 1974, you want a true copy of your CCA conforming to all the prescribed terms and form laid out in the Act, deed of assignment and state of account at present.

 

Once youve done this, theu have the famous 12 working days to supply you, failing which they can only enforce the agreement with a court order, which they would not get due to s.127(3).

[noomill060]

This is the legal reason for it being "thrown out because no CCA".

 

Youve got to give the judge no option but to throw it, but he/she can only go on the info you provide.

[Monty2007]

When you go to court to reclaim charges is it usual that the CCA has to be produced? Or are you trying to get this disclosed as part of the plan?

[noomill060]

No monty, the CCA request is to make the creditor prove that the debt is in fact enforceable. In most cases the credit agreement is defective and as such renders it unenforceable so the judge has option but to to dismiss it.

 

It has no bearing on simple reclaiming charges cases.

[noomill060]

Speaking of which-stebiz- have you reclaimed your charges? You may find they wipe any alleged debt out.

[Monty2007]

I appreciate that, BUT does the court normally request to see the CCA and are there any cases where it has been produced in Court and deemed to be enforcable/unenforcable?

[Monty2007]

Are you suggesting that in the absence of a CCA that the court would wipe out the debt as well as the charges and interest?

[noomill060]

Include in you defence that you believe the alleged debt is made up wholey or substantially of penalty charges debited for alleged breach of contract and and interest levied thereon, and as such is unenforceable until this is removed, so that the true amount of any debt (if any) is revealed, even assuming that this were even to be enforceable, which given the apparent absence of any Agreement seems unlikely.

 

In the event of the total amount unlawfully debited exceeding any debt owed, the defendent will counter claim this amount. In the event of no agreement being evidenced, the defendent will seek restitution of all interest paid under the non-existant agreement plus all interest compounded thereon, court fees and all other costs.

 

Should give them something to think about. ;-)

[Curlyben]

The court will not request to see the CCA UNLESS it is brought up in the defence.

After all the court is working on the assumption that any agreement is valid and exists.

[noomill060]

Without an agreement, properly conforming to the CCA Act, any debt regulated by the Act is 100% unenforceable. It still exists, you still owe the money, but no court has the power to make you pay it.

 

Doesnt mean you cant claim back unlawful charges though.

[Monty2007]

But the debt will always be owed even if you get the charges removed. Potentially the interest may also be argued in the absence of a CCA but I cannot see any threads where this has been the case? I have followed the same approach and tried to argue it from a data processing angle. It seems that they can always process your data since you used the card (inferred right). See:

 

http://www.consumeractiongroup.co.uk/forum/general-debt/103600-non-conformance-under-s10.html

 

The ccc can prove that you spent the money and by using the card you have established a contract with them, various people have suggested that this provides acceptance of their terms and conditions. See:

 

http://www.consumeractiongroup.co.uk/forum/general-debt/104135-can-mod-provide-definitive-2.html

[Monty2007]

Thanks for the clarification Curleyben. Do you know if this has ever happened - production of a non-compliant CCA (under the 1974 Consumer Credit Act)? and been successfully argued?

[Curlyben]

Yes quite a bit.

The most famous of course is: House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

and that one set a precedent.

[noomill060]

http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply-134.html#post991144

[Monty2007]

Any others?

[Curlyben]

Monty, you don't need to continue passed my link as it is precednt fromthe House of Lords, the highest court in the land.

 

There is a recent case on CAG against CL Finance along the same lines.

[Monty2007]

Did

 

http://www.consumeractiongroup.co.uk/forum/other-institutions/10900-loan-company-cannot-supply-134.html#post991144

 

get legal judgement?

[noomill060]

Yes there are several, you just need to explore the site. Try the debt forums.

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements.html#post258846

[stebiz]

When did you send request for your CCA? You say didnt include the £1 .

 

You would be advised to do the job properly ASAP, and send the template letter, stating that under s.77/78 of the CCA 1974, you want a true copy of your CCA conforming to all the prescribed terms and form laid out in the Act, deed of assignment and state of account at present.

 

Once youve done this, theu have the famous 12 working days to supply you, failing which they can only enforce the agreement with a court order, which they would not get due to s.127(3).

 

This court summons came out of the blue - like I've explianed previously. My defence clearly states that I dispute the alleged amount in full and that I require to see a copy of any alleged CCA. Applying for the CCA now and enclosed £1 would I'm afraid have little effect because like they said they are trying to locate it via MBNA. If by the time it goes to court they can't provide it I guess I'd be in the same position as if I'd sent the £1 in the first place.

 

If I had my choice I would have done exactly as you say. In fact I have done the same with an old Bank of Scotland card. But I didn't have the choice.

 

Stebiz

[noomill060]

Read, Read, Read and Read some more, monty.

 

The CCA is a complex beast. No one really knows it inside out, but:

 

No Agreement = No enforcement.

 

Ever.

 

Even God cant make you pay.

 

(Under s.127 (3)....)

[Monty2007]

thanks, I am just trying to ensure I have read all the correct threads and cases. There is so much conjecture on many threads and some very wooly and untested theories of what a court may or may not do.

 

I called TS today and their position was that you have agreed to their T&C's by using the card, they said this would be viewed by a judge. So I am concerned that since their T&C's contain interest rates (as do the statements they send) then you will always be liable for both the capital spend and interest (not the illegal charges)?