Foxy v MBNA

[Foxyflugel]

Re: Foxy v MBNA

Hi Amethyst

Yes - they are exactly the same layout as the ones in your links - but mine say £12 not £25 in default fees.

Thanks

Foxy

[Amethyst]

Re: Foxy v MBNA

So they will be the current terms.

They need to supply the terms in force at the same date of your agreement to complete compliance with the CCA. They are referred to in the agreement therefore form part of that agreement.

[Amethyst]

Re: Foxy v MBNA

Ah ha - found image of what the front of the terms would have looked like - - from Gaz http://www.consumeractiongroup.co.uk...=1#post1742611 - they hadn't supplied it to him either. Basically that's what is missing from your CCA request.

[Foxyflugel]

Re: Foxy v MBNA

Hi

Can anyone tell me - is Experto Credite connected to Aktiv capital? As Experto Credite were chasing this initially and I never received a noa from them or MBNA. The copy noa that I have been sent - allegedly from AC - has no date on it either or when it was actually assigned.

I have had a good root around in my files tonight and discovered a letter from MBNA dated July 2011. I will post it up tomorrow when I have access to a scanner.

It basically says about an unexecuted agreement and their systems would have ensured that I received a copy of my T&Cs. They have enclosed a copy of T&Cs and it says in the corner AB 11/04 - I presume this is the date?

It contains paragraphs 4-19 and says 1-3 are on my agreement.

I have also noticed that on my dn is says as per para 8 of t&cs ...blah blah.

On these T&Cs para 8 is about payments and how they are allocated ie fees, non promotional balances, % for foreign transactions. The para relating to the agreement and defaults etc is para 13?

I will post the letter and T&Cs up tomorrow..it just had me thinking..but where do I go with this now?

Thanks

Foxy :loco:

[Foxyflugel]

Re: Foxy v MBNA

Thanks Amethyst

I never received anything like that. My friend showed me hers which was sent with her card in 2008 and they look like that with her card number and the index.

Foxy

[Foxyflugel]

Re: Foxy v MBNA

Hi all

I have attached the letter and T&Cs received from MBNA (Abbey).

Thanks :tinysmile_aha_t:

[Foxyflugel]

Re: Foxy v MBNA

Anyone??? :help:

Thanks in advance.

[mystery1]

Re: Foxy v MBNA

Ok. We need to look at what is required.

The default notice.

http://www.legislation.gov.uk/uksi/1.../made/data.pdf

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor
or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the
debtor or hirer in accordance with section 88 before taking certain action by reason of any breach
of the agreement by the debtor or hirer) shall contain—
(a) a statement that the notice is a default notice served under section 87(1) of the Consumer
Credit Act 1974;
(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and
(c) statements in the form specified in paragraphs 4, 5, 7 and 9 to 11 of that Schedule.

So the information needed is :-

1. A description of the agreement sufficient to identify it.

2. (1) The name and a postal address of the creditor or owner.
(2) The name and a postal address of the debtor or hirer.

3. A specification of:—
(a) the provision of the agreement alleged to have been breached; and
(b) the nature of the alleged breach of the agreement, specifying clearly the matters
complained of; and either
(c) if the breach is capable of remedy, what action is required to remedy it and the date, being
a date not less than seven days after the date of service of the notice, before which that
action is to be taken; or(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation



for the breach and the date, being a date not less than seven days after the date of service
of the notice, before which it is to be paid.

6. A clear and unambiguous statement by the creditor or owner indicating, if any action specified
under paragraph 3(c) or (d) as required to be taken is not duly taken or if no such action is required
to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of
the agreement—
(a) to terminate the agreement;
(b) to demand earlier payment of any sum;
(c) to recover possession of any goods or land;
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted
or deferred;
(e) to enforce any security;
(f) to enforce any provision of the agreement which becomes operative only on a breach of
another provision of the agreement as specified in the notice,
at any time on or after the date specified under paragraph 3(c) or (d), or, if no action is specified
under that paragraph as required to be taken, indicating the date, being a date not less than 14
days after the date of service of the notice, on or after which he intends to take any action indicated
in this paragraph.

8. Where a sum of money is required to be paid under the notice,
(a) the amount of the sum before deducting the amount of any rebate on early settlement;
(b) where any rebate on early settlement is allowable under the agreement or by virtue of
section 95 of the Act—
(i) the amount of the rebate allowable calculated on the assumption that early settlement
takes place on the date specified in the notice for earlier payment of the sum; and
(ii) the total amount to be paid after taking into account the amount of any rebate on
early settlement, namely the difference between the amount shown in paragraph (a)
above and the amount shown in sub-paragraph (i) .


The prescribed statements required are :-

“IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN
NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE
BREACH”

“IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE
SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST
YOU ”







“IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT
OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY
TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY
MORE TIME”

“IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS
POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL
TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS` ADVICE
BUREAU”

“IMPORTANT—YOU SHOULD READ THIS CAREFULLY”





(4) The lettering in any notice given under paragraph (1), (2) or (3) above shall, apart from any
signature, be easily legible and of a colour which is readily distinguishable from the colour of the
paper.
(5) Where any statement is required to be in a form specified in a Schedule to these Regulations
and is reproduced in the notice, then apart from any heading to the notice, trade names or names
of parties to the agreement—
(a) the lettering in the statement shall be afforded more prominence (whether by capital letters,
underlining, large or bold print or otherwise) than any other lettering in the notice; and
(b) where words are both shown in capital letters and underlined in any statement specified
in a Schedule to these Regulations, they shall be afforded yet more prominence.
(6) The wording in any such statement shall be reproduced in the notice without any alteration or
addition, and in relation to any statement to be contained in the notice the requirements of any note
shall be complied with, except that the words “the creditor” may be replaced by the name of the
creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun,
and any consequential changes to pronouns and verbs may be used.



So we turn to CCA 1974 and see what that says about default notices.

http://www.legislation.gov.uk/ukpga/...efault-notices

Default notices


87 Need for default notice.


(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—
(a)to terminate the agreement, or
(b)to demand earlier payment of any sum, or
(c)to recover possession of any goods or land, or
(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e)to enforce any security.
(2)Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.
(3)The doing of an act by which a floating charge becomes fixed is not enforcement of a security.
(4)Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.
[F1(5)Subsection (1)(d) does not apply in a case referred to in section 98A(4) (termination or suspension of debtor's right to draw on credit under open-end agreement).]

88 Contents and effect of default notice.


(1)The default notice must be in the prescribed form and specify—
(a)the nature of the alleged breach;
(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;
(c)if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.
(2)A date specified under subsection (1) must not be less than [F214] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F214] days have elapsed.
(3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F214] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.
(4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F3and any other prescribed matters relating to the agreement].
[F4(4A)The default notice must also include a copy of the current default information sheet under section 86A.]
(5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.









Note the various other terms that say must.


So if you have picked out faults in the notice we look at what a judge says.

http://www.bailii.org/ew/cases/EWHC/...e/2011/B3.html

The notice of enforcement


The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement cannot be attempted in dependence upon it. However, bad notices can often be remedied by the service of good notices and I see no reason why that should not be so in respect of credit agreements.


So your notice is bad and should be attacked in your defence. I will let you check your own with all of the above !




Did you ever do a s78 request ?

M1

[Foxyflugel]

Re: Foxy v MBNA

Many thanks for your reply M1.

Initially, I believe a company who I appointed ages ago (when the 'unenforceable' aspect was in full swing) sent a request and thats the docs I have (they have sent them again in my CPR 31.14 request). Then I sent them the template letter myself in 2011 (I believe it was the one challenging the enforceability of the agreement) and that's when they sent me the letter (posted) back with a copy of the relevant T&Cs (AB 11/04) (also posted on here).

Thanks

Foxy

[Foxyflugel]

Re: Foxy v MBNA

Hi everyone

Can anyone remember what was on the top of the 'agreement' that they have sent me - (or have a copy) obviously it has been detached from something.

Thanks

Foxy

[Foxyflugel]

Re: Foxy v MBNA

?? Anyone

[Amethyst]

Re: Foxy v MBNA

Hi everyone

Can anyone remember what was on the top of the 'agreement' that they have sent me - (or have a copy) obviously it has been detached from something.

Thanks

Foxy

It will have been marketing gumpf I expect, I haven't seen one that is complete.

[Foxyflugel]

Re: Foxy v MBNA

Thanks Amethyst.

[Foxyflugel]

Re: Foxy v MBNA

Hi guys

Just an update on this case.....IT WAS DISCONTINUED WITH COSTS!!!!

Basically, I invited a solicitor on board who knows his stuff. It turned out that the assignments were dodgy, as well as the default notice quoting the incorrect paragraph number of the correct t&cs. We had our day in court and their barrister just tried to talk around the paperwork problems - MBNA witness did not attend - and the judge did not seem impressed with them at all - he postponed it with costs to be considered at the next hearing due to their timewasting - as my solicitor had been chasing the paperwork since last Sept.

They ended up discontinuing and paying my costs...happy days!!!!!!!!!:high5::high5::high5:eace:

Thanks to everyone who helped me. :okay::okay::okay:

[teaboy2]

Re: Foxy v MBNA

subbing - hatred for mbna is not unknown. but interests here is in fact it was originally abbey. Will read thread in full tomorrow and add to it if anything to add - Probably will have.