Tragic case of Judgement because a cut up card was produced by MBNA at hearing.

[alfwithhair]

***POST HAS BEEN EDITED - I MADE REFERENCE TO THE WRONG CREDITOR - IT WAS NOT CAPITAL ONE ACCOUNT, BUT MBNA***

 

Just thought you might be interested in what happen yesterday to a friend of mine.

 

After using the forum a lot for my own debts, I helped a freind of mine out with one of his.

 

Was a MBNA card, with a balance of just over two grand. My friend was diagnosed with a terminal illness early last year and was given two year life expectancy, so was unable to work any longer.

 

MBNA pestered the life out of him for money before passing it to a DCA, who again drove him insane with their phone calls. That is when I said I might be able to help. We CCA'ed MBNA, and as usual got an unenforceable application form with no prescibed terms on it and a copy of MBNA currect terms & conditions that were not in force at the time off opening the account as it was A&L back then. So we disputed the debt.

 

It was then passed to our freinds NCO/RMA in Preston who again started the torrent of phone calls. He ignored most of them and he eventually got a letter from Westminster Solicitors say they were initiating court action.

 

I told him not to worry as they would not be able to do much with no signed agreement. Now the interesting part.

 

After sending all the usual defence guff to the court, we had the hearing yesterday. A rep from MBNA turned up, plus the solicitor and all was going well, all the claiment offered was copies of statements and the same terms and conditions they sent my freind. Judge asked point blank, "Do you have a signed agreement in relation to Mr X account" their solicitor said NO Sir.

 

It looked like it was all going to be over, judge was writing something on his notes. Then out of the blue the solicitor said " We do have this sir" and produced my freinds credit card in two pieces. (MBNA asked him to cut it up and send it back to them at the start of his troubles).

 

Judge held the two halfs together and checked the number on the card to that on the statements. He then asked my freind " Is this your signiture on the card Mr X". He replies "It is sir"

 

That was it end of game. Judgement granted to MBNA plus £1700 costs and interest. So he now owes them nearly 4 grand. Well done the legal system.

 

To be honest my freind couldn't care less as he is going to stay at his daughters shortly until such time he is too ill for her to care for him, when he will go to a hospise. But he was a little concerned that if the court involved the bailiffs, (because he has no intention of paying cap one anything after the way they treated he) could they come to his daughters house and remove her posessions? I told him I don't think they can do this, but I would appreciate some advise on this part of the post.

 

But the long and the short of this post is; if you have every sent your cut up card back to a credit card company it might come back and bite you on the bum. If you are asked to send it back, don't bother.

 

I hope this post may enlighten the good people of CAG to the sneaky, low tricks creditors will pull in court to win and the usless Judges who preside over our affairs

Edited January 22, 2009 by alfwithhair
Incorrect creditor listed

[dannyboy660]

That's quite a distressing read, and adds weight to the argument that Judges can and do make judgment in favour of the claimaint even without a valid CCA being produced.

 

Is this something to do with CCA'06??

 

Oh wait a second...a signature on the card that matches the account. That will be the reason.

Edited January 22, 2009 by dannyboy660
misread first time....

[dx100uk]

seems like they won't let you avoid paying debts you clearly owe even if you are dying.

 

moral there somewhere

 

dx

[midge61]

What an awful story.

[mak71]

What an awful story, to harass a terminally ill person just shows how low these organisations will go .

 

Is there a specific reason in consumer law why a signed card can overrule a non compliant cca,?

Is it a simple case of the card proves the account exsisted,?

would that be the same pre chip and pin if a credit card company produced some old receipts from shops with your signature on,

 

 

Ive had lots of letters asking for cards to be cut in two and returned,

fortunately ive never sent any card back,

 

re the bailiffs, if it ever got to that stage, surely the bailiffs could only take anything that belonged to the debtor,and not to any other family member,?

Edited January 22, 2009 by mak71

[the_shadow]

Would the fact you've sent back a cut up card turn up in the S.A.R?

 

Shouldnt it also have been logged as evidence in the case particulars logged before the hearing?

 

Cant believe the judge made a decision against a dying man... best thing to do would be to get the press involved... crap one hounds dying man even on his deathbed sort of thing... red top papers love the stuff and crap one will get even more negative press

[MARTIN3030]

Shocking.

This should perhaps enlighten those who are asked to return cards-although its unlikely that whatever the circumstances,they could be more tragic than these here.

 

Will make this a stickie.

[Kraken1]

A slick defence might have helped this, but even then I am not so sure.

 

I think that there is thought amongst the judiciary that if the debt is proven to exist then they won't let you out of it on a technicality. This is easier for them when the agreement postdates 2007 due to the absence of 127(3).

 

The absence of a CCA is not a bar to enforcement. Don't rely on it. Small claim judges do what they think is right.

[Misterzeus]

Disgusting!

 

How low will these ba****ds stoop to?

 

It beggars belief that they can exploit a dying man in this way.

 

Mrs Z

[bazaar]

It can be appealed though and / or redetermination in front of another judge.

It is a sickening story though, my hatred meter is nearly topped off.

[the_shadow]

It can be appealed though and / or redetermination in front of another judge.

It is a sickening story though, my hatred meter is nearly topped off.

 

 

I'd be very interested to see if they listed the card as evidence before the hearing though as it may help other CAGers who are thinking of going all the way etc......

 

Trouble is who can remember if they've ever sent an old card back or not? leaves a large portion of doubt in my mind I would have thought it would have to be listed in the S.A.R. but who knows :-?

[alfwithhair]

Thanks for all your support and comments. I will pass them on for you. I am sure he will appreciate knowing people are still supporting him.

 

Thanks to the site team for making it a sticky too. Everyone who is considering court action should take note of this tactic.

[noomill060]

This can and should be appealed.

 

Judges make mistakes- this is recognised in the fact that there is an appeal process.

[mak71]

Im still a little confused as to why the actual card could overrule no cca,

is it because it proves the account was opened and a card issued to the debtor? was this account pre or post the cca changes in 2007?

could credit card statements have the same effect,?

or is it just that the card had a signature on it that made this ruling possible?

 

 

What about all the prescribed terms that have to be on a cca,

how would the judge know if they were correct and fair just by

having the card presented to him with the debtors signature,?

Edited January 22, 2009 by mak71

[noomill060]

Precisely MAK- this why it should be appealed.

[B3rty]

Alf ...did you use 127(3) backed up with case law to show that to enforce an agreement it needed to contain the P-Terms would be required for the court to enforce and with out this Case law presidents showed the court had no powers...or did you just state that they didnt have an agreement..as I can't believe a proper legal argument could be over come with the just the card?

[Desperate Daniella]

Would your friend be interested in talking to the press? Or has he just had enough?

 

What a disgrace. I am so sorry.

 

DD

[alfwithhair]

Alf ...did you use 127(3) backed up with case law to show that to enforce an agreement it needed to contain the P-Terms would be required for the court to enforce and with out this Case law presidents showed the court had no powers...or did you just state that they didnt have an agreement..as I can't believe a proper legal argument could be over come with the just the card?

 

Yes 127 (3) was the argument - All crap one had sent was a copy of the application form, which contained no prescibed terms and a seperate set of terms & conditions, which did not relate to the account, they were current ones. Account was taken out in 1996, as an A&L card, which MBNA took over in early 2000 I think.

 

If they hadn't of shown this card, I am certain the judge was going to throw it out.

[Having_A_Knightmare]

Precisely MAK- this why it should be appealed.

 

Yep agree with this.

 

At the end of the day the CJ will look at the law and throw it out.

 

HAK

 

We also need to know how old the account was?

[alfwithhair]

We also need to know how old the account was?

 

Details of the account opening dates are in my previous post

[Joijo]

Im sorry to hear that your friend has had so much trouble.

 

I hope that this hasnt hindered his life from the happiness that he should have.

[Duffers Mum]

Terrible story, shows how these DCA's have no morals at all doesn't it.

 

I have never returned any card when asked, have always cut it up and disposed of it myself, am jolly glad now that I have.

[alfwithhair]

If you read the thread about my wife MBNA troubles

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/116322-alf-mbna.html

 

The situation is almost identical. The accounts were opened the same year, as my freind used to live in the same street years ago and both applied at roughly the same time. What MBNA suplied to his CCA request is identical to what my wife received with hers.

 

Although no court action has been initiated as yet with hers which I found a bit strange, but then my freinds account was with NCO/RMA and my wifes was until today with Debt Clear. Is has just been sold to Cabot Financial, or so they say.

 

The thing that swung the case yesterday was when the judge looked at the signiture on the card and it matched the one on the application form, after asking my freind to confirm it was his signiture, that was it all over.

[dx100uk]

i know this may read strange, but bear with me.

 

taking away the moral issues of the guy is dying - give him a break.

 

p'haps the judge took a purely clinical [no pun intended] view on this.

 

a CCA request was not forefilled, so the debtor was basically saying - hey the debt isn't mine?

 

the judge was provided with eveidence that proved he hd a card and had used it, i think he had no choice.

 

ok , it wasn't submitted as evidence prior to the hearing etc.

 

BUT, if the judge read it as the debtor trying to get out of paying the debt then his hands were tied surely?

 

DX

Edited January 22, 2009 by dx100uk
typo

[alfwithhair]

I have spoken to my freind about appealing as many of you have suggested. He says he may do this, if only to cause inconvenience to MBNA. But is leaving it for now as he doesn't want any more stressful days like yesterday just at the moment.

 

He is having a few days at his daughters and is leaving the world of debt behind for the time being. He appreciates anyones comments and passes his thanks on to you all.