I am not talking about issuing proceedings, I am talking about TERMINATING THE AGREEMENT.

Who said anything about Default Notice? As for drip feeding arguments, I wouldn't be the only one guilty of that!!

Thanks for the input vint1954. The point I am trying to clarify is that MBNA have admitted to being in breach of S78 at the time of terminating the agreement. It is my strong belief that a creditor is NOT obliged to terminate an agreement or demand earlier repayment of any sum while the breach remains because these actions (as I attempted to explain above) are deemed by the CCA74 and related legislation to be enforcement action. S78(6)(a) of the Act forbids the creditor from enforcing whilst a S78(1) breach remains. As such, in my case, it is my opinion that the creditor had no right to terminate the agreement or demand early repayment. I put this in my Defence and WS rebuttal to the Summary Judgement/Strike Out application; however the Judge relied on points of law provided by the Claimant's counsel, who did not explain that termination of a contract is deemed as enforcement. As such, my Defence was struck out at a cost of over 1000 to me and now I am left with extremely limited room to submit a new Defence. If it is indeed true that the Judge was unaware of the relevant law, then justice has not been seen to have been done and therefore my Defence should not have been struck out and I should be entitled to go to trial if I so wish. Is that a bit clearer? There is a lot of info on this thread, but that is where we are currently up to.

I think the answer to the question with regards to "enforcement" can be found in the relevant sections of the legislation. In S78 it says as follows: [my emphasis added in bold]. In S87 it says as follows: So it follows using my logic that although a Default Notice is not deemed as enforcement, which is backed up by McGuffick v RBS (2009), the subsequent actions shown above are. This is further backed by taking a look at the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, which require the following terms to be included in a valid Default Notice: [my emphasis added in bold] So it follows that actions taken after the Default Notice is served ARE deemed to be enforcement, as shown by the legislation, and without case law to prove otherwise I would tend to agree.

From what I have seen thus far, there is nothing to say that a creditor CAN terminate an agreement when in default of section 78 either. I would like clarification either way but not really keen to use mine as a test case

14 days to submit a new defence (or settle). Whether this is from the date of the hearing or of the court sending me the outcome I am not sure.

Thanks for your support but I don't think I could have been much more explicit in my Witness Statement Rebuttal with regards to Kotecha v Phoenix recoveries (see below). However I fear the problem is that MBNA claim that they rectified the breach of Section 78(1), which is denied by me, by providing the terms and conditions they claim were provided to me back in 1999. They only swore to this effect in the witness statement provided to me the night before the hearing. I explained my situation to the judge about receiving this so late and his words (as accurately as I remember where) "I don't see how anything in this [witness statement] changes your situation". I think you can see why I felt it was a bit them against me now *** START *** In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that Terms and Conditions A [new ts&cs provided after proceedings commenced] were delivered to me on or about [exact date removed] 1999, I shall, without prejudice to my contentions above, contend that, following the Claimant providing me with a copy of Terms and Conditions B [previous ts&cs with two sections missing] in response to the S78 Request, the Claimant failed to provide me with the whole of the credit agreement. In Kotecha v Phoenix Recoveries [2011] EWCA Civ 105, the Court of Appeal held that in order to comply with a request made pursuant to Section 78(1) of the Consumer Credit Act 1974 the creditor must supply a copy of the whole agreement, not just part of it, and any terms and conditions incorporated have to be supplied. I shall contend that the Claimant's failure to provide me with the whole of the credit agreement meant that the Claimant was not in a position to terminate or enforce the credit agreement. *** END ***

Here is a copy of the actual Defence I submitted with some of the relevant parts highlighted: *** START *** 1. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:- 2. The Claimant’s Particulars of Claim disclose no legal cause of action and they are embarrassing to the Defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the Courts attention to the following matters: a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the alleged contract referred to, the method the Claimant calculated any alleged outstanding sums due, or any other matters necessary to substantiate the Claimant's Claim. b) A copy of the alleged contract that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the Claim Form. c) A copy of any evidence of both the scope and nature of any alleged default, and proof of any alleged amount outstanding on the account, has not been served attached to the Claim Form. 3. On receipt of the Claim Form the Defendant sent a CPR 31.14 request for a verified and legible copy of the alleged contract and supporting documents that forms the basis of this Claim. The Claimant refused to provide the requested documents and instead provided non-certified and only partly legible documents, including but not limited to a set of terms and conditions previously not received by the Defendant, and therefore failed to comply with the request. 4. The Defendant sent a CPR 18 request for further information to help him better understand the Claim. The Claimant refused to answer any of the questions contained within the request. 5. Prior to the issue of the Claim, in order to establish the extent of liability, if any, to the Claimant, the Defendant had repeatedly requested information from the Claimant. These requests were made on or about 9 November 2010 under Section 78(1) of the Consumer Credit Act 1974 and on or about 31 December 2010 for a Subject Access Request made under Section 7 of the Data Protection Act 1998. A final notice before legal proceedings was served upon the Claimant on or about 28 November 2011 in respect of non-compliance with the Subject Access Request. 6. It has been confirmed via the Royal Mail website that all the above letters/notices were received/served and signed for. The fee attached to the Subject Access Request was banked on or about 14 January 2011. 7. In response to the Defendant's request under Section 78(1) of the Consumer Credit Act 1974 the Claimant provided an incomplete set of terms and conditions on or about 25 November 2010 with conditions 8 and 9 missing . The Claimant provided a differing set of terms and conditions with conditions 8 and 9 included in response to the Defendant's CPR 31.14 request. The Claimant's failure to comply with the request made under Section 78(1) of the Consumer Credit Act 1974 was a clear breach of that Act causing the account to enter into dispute. The Claimant did not remedy this breach prior to issuing this Claim and therefore was not in a position to attempt to enter into these enforcement proceedings. 8. On or about 31 December 2011, the Defendant filed a Claim through the Northampton (CCBC) County Court, Claim Number XXXXXXX, in respect of the Claimant’s non-compliance of the Subject Access Request. 9. Consequently, I deny all allegations on the Particulars of Claim and put the Claimant to strict proof thereof. 10. I respectfully request for a stay in proceedings until such time as the Claimant complies with the requests outlined in paragraphs 3, 4, 5 and 8 above or until the Court orders its compliance with the same. I will then be in a position to file a fully particularised Defence, Counterclaim or both and will seek the Court’s permission to amend my statement of case accordingly. *** END ***

You make a good point M1. How long do I have to appeal? I am speaking to a solicitor tomorrow and yes, it did cost me over a £1000 for this striking out order.

Do you mean a new summary judgement application by MBNA? It is also not quite as simple as how you describe anyway. There remains the issue of enforcement in relation to lack of signature. I have never seen a document that contains a wet ink signature of either party as yet and of course for purposes of clarity, it WOULD be required at trial, as a credit agreement containing signatures of both parties has been mentioned by MBNA in their sworn statements. So if they are confident enough to mention it in a sworn statement, the law requires them to produce it at trial if I so request it. Let's just see what MBNA want to do in relation to settling first. Probably in the interests of both parties.

Problem is, as it stands, the law does not require S78 to be complied with to enter proceedings. All they need to do is ensure they comply with them prior to trial (if it goes there) and they can then be granted a judgement. Not trying to sound defeatist but just realistic. They can provide any set of terms and conditions and sign a witness statement to say that "they believe they were provided to me". Due to our legal system, the burden of proof then falls on me if I deny they were. Justice? Unless I can locate a copy from 1999 to disprove their claim or cross examine the witness to reveal they are telling porky pies, or were mistaken then they are correct in the eyes of the law. It would appear that non-compliance with S78 is no defence to them entering proceedings for recovery of alleged debt. You do have to argue, why enter an application for Summary Judgement when you know that you cannot achieve it? Now that really is a waste of the Court's and my time.

If it really matters, NO I don't think they have complied. I don't think the terms and conditions they have provided were provided to me at the time MBNA allege a contract was entered into. Also, as it stands, there is no properly executed Credit Agreement as it wasn't signed by MBNA therefore it is surely IMPOSSIBLE to provide a "true copy of the executed agreement" as they claim, when it is not proven that an original exists.

Policy? There is, in my opinion, no reason to terminate the account, particularly when there is a discussion between the parties that they are withholding payment due to failure to comply with S78 request. Besides, the CC Company could always reduce the credit limit and thereby refuse to provide further credit. So, I fail to see how your argument is correct. Terminating an agreement is a clear sign that the bank has no intention to remedy the breach and is only interested in using the courts to collect an alleged debt, when actually it is them that has put the account in dispute!

S78 request CANNOT have been complied with because MBNA are relying on Terms and Conditions that were only provided to me after proceedings started, which are different to those provided following S78 request (which had two complete sections missing). The Defence stated that the S78 had not been complied with prior to entering proceedings.

I did try to do my own legal research. I did speak to a solicitor as at one point that solicitor was representing me (via his firm). All of this was in my witness statement or put on the record during the hearing. It is my humble opinion that the Judge was unaware of the law in relation to S78 and relied upon the solicitor acting for MBNA. This is backed up by the fact that the Judge said that he is not an expert in this area of law at the beginning of the hearing and said that he would rely on the solicitor for points of law. I am a litigant in person. I thought and still think that I may be correct in my presumption that an agreement (which in my case is still not determined if properly executed) cannot be terminated if there is a dispute on the account due to a S78(1) breach. The judge didn't know for a fact, the solicitor admitted that the judgement he referred to didn't confirm nor deny, but still my defence, which related to there being no cause of action as the S78 had not been complied with, was still struck out. Regardless of whether I should have researched it, which in truth is NOT my job, (whereas a judge and a solicitor are paid (a lot of money) to know, or if not to find out, this information), IF what the solicitor told the judge is inaccurate (regardless of whether he knew or not) then that IS NOT justice is it?

Although what's done is done, it has so far cost me over 1000 in costs. My concern is that if there are precedents beyond McGuffick v RBS 2009 that actually provide more information on the definition of enforcement and what can be done in relation to a debt while a S78(1) breach is active, regardless of whether the solicitor knew about them or not, by not informing the judge would, in my opinion, put me at a disadvantage, goes against of the overriding objectives, mislead me and the judge, be unethical (if he/she knew) and would potentially cause a miscarriage of justice. The key question is, can a credit card company terminate an agreement when a breach under S78(1) has occurred?

OK - so awake throughout the night thinking about this!! The Judge confirmed that there was a breach of section 78(1) of the act as they had failed to provide true copy of terms and conditions up until well into the proceedings. I attempted to argue that they were not in a position to enforce while a breach was in place and were not entitled to terminate the agreement. A large debate was held between the 3 of us and MBNA's solicitor relied upon McGuffick v RBS (Oct 2009) to define enforcement, he mentioned that the issuing of default notice and others actions up to but not including the issuing of a judgement by the court being accepted as not being enforcement and the Judge agreed. I replied they are not entitled to terminate though are they? Solicitor said, it doesn't refer to termination of agreement. I referred to an expert solicitor I was previously using who confirmed that termination was not permitted when in breach, the Judge inferred that was hearsay, I attempted to refer to either Harrison v Link or Kotecha v Phoenix, but it fell on deaf ears. The Judge pointed out to me that, as I was a [litigant in] person, he would rely on MBNA's solicitor for points of law, because he is under an obligation to tell the Judge of the relevant law. Ever heard that before? My point is, McGuffick v RBS was mentioned in the Skeleton argument I was provided 10 mins before hearing, as was a copy of the Judgement. What chance did I have to read either!!! Plus, McGuffick v RBS relates to section 77 and in no instance refers to whether termination of an agreement is deemed as enforcement. I would suggest, as I did in my Witness Statement and orally that termination of the agreement whilst in breach of section 78(1) of the act is in contravention to section 78(4), i.e. it is seen as enforcement. What do you think? Are you aware of any relevant case law that supports my argument? Any help/thoughts greatly appreciated - TWTT

From the way it went I don't think the Judge saw it as an issue with regards to whether they provide the statements to substantiate the alleged debt. He was happy to accept the list of transactions provided by the bank, I wasn't but that didn't appear to matter to him. They claim that as the card was in credit at one point then they only need to provide statements from that point forward. I argued that there is no way to confirm that the figure was accurate, Judge thought it was unimportant. Lots of other points but bed time for me. Knackered!

Back home now. Headache! Not sure where to start but a slight result but not the one I was hoping for. Defence Struck Out but Summary Judgement NOT issued against me. Pretty much my attempt of Embarrassed Defence and then not requesting to submit a revised one (even though I did request the chance to in my Draft Directions with AQ that were ignored even in hearing) was what let me down here. Pleasant enough solicitor on their part but I was provided with a new Witness Statement by email the night before and a Skeleton Argument 10 mins before hearing. Too much to remember but basically Judge and Solicitor did not feel that I had a probable chance of Defending based on my Defence (Struck Out) and then ONLY a chance of success at trial (hence no Summary Judgement) based on a point raised during the hearing - namely that the Credit Agreement WAS NOT SIGNED. I have an opportunity to submit an amended Defence based on the fact that MBNA have not complied with Section 61(1) of the CCA74. Not sure where I go from here. No time was left to go through my Claim, which is for Damages from their breach of a SAR, which is admitted by them. MBNA offered to knock the costs from my Claim off the total they allege is owing to them (still not proven) and pay up and they will drop their case if I drop mine (probably not best description but hopefully you get the point). My Claim is adjourned and we have 14 days to agree on a settlement/or for me to submit my amended Defence in this case. So not a total failure by a long stretch but felt pretty overwhelmed at one point, especially when the Judge spoke to the Solicitor using the collective "we"!! Any info on the fact a bank has failed to sign the agreement would be most appreciated. Thanks in advance TWTT

Thanks for all your help and advice CitizenB (and that goes for all others). I think I have a strong case for the Summary Judgement application from them being dismissed and my being granted, but I would wouldn't I

Wish me luck as I am going in for two hearings tomorrow morning both for Summary Judgement application hearings.

Pretty

Ha ha - the copy I received from the Court in my other case had them I'll let you know after the case Out of interest what do you use then?

These people have such disdain for the likes of litigants in person that they don't even send Witness Statements with treasury tags but staple them instead. I bet a lot of money that the copy they sent to the court had treasury tags!

Well I have pointed it out to the Court now in my Witness Statement and on the day I may ask for the case to be dismissed as the Defendant is not a credible witness. Put the person on the stand that allegedly counter-signed the alleged credit agreement then we have a case, otherwise, what is this person doing talking about these matters?