Bad news........i lost They relied in Hart v BMW Financial Services and this confirmed a two stage process of breach and issuance of the DN. I argued this can be distinguished from this case as CCA offers more protection to the consumer as BMW was not a regulated agreement and Swansea Council cases not tested. Unfortunately when they had a barrister arguing their side it fell on to deaf ears. It was a different DJ to the SJ hearing. To rub salt in the wounds the DJ wasn't going to allow their costs but the barrister quoted another case which states that if the original contract allows for it they they are entitled to recover, even in small claims court. The DJ did her best and managed to knock a few hundred off. Outcome is that I have to pay circa £11,500 in the next 14 days. Thanks for the advice I have received over the years on this site. In hindsight I should have settled when I had the chance at £3,500 but hey, you live and learn! My financial position is better now than when I first started this thread in that I am now debt free. I can make the payment to Restons but it completely wipes me out and puts me back to zero (although better than a minus number). I will probably follow up this post with a little bit about my personal journey over the last 7 years. I dont intend to brag about being debt free etc but thought it may give hope to anyone who is in the same position i was in 7 years ago when i started this thread. I will also have to think of a new name. (Not an)MBNASLayer

Hi Andy, There was just a solicitor in attendance at the SJ. I'll me leaving shortly for the hearing so I'll let you know how how it goes.....fingers crossed!

9th Nov. 2 Days time!!

Hi Ford, Yes, its the full hearing next week. On the Summary Judgement the DJ said is was 'costs in the case' which means no costs were awarded for either side. My understanding is that I can not claim costs for legal representation in the Small Claims court if I were to win so why should Restons be able to claim £500 for a Barrister? Cheers MBNASlayer

I've just re-read the costings and the £500 is actually for the barrister to attend the hearing! Two thoughts: 1) £500 sounds pretty cheap for a barrister to attend 2) I thought the point of a small claims hearing was to keep the court process fairly informal. This strikes me as being rather unfair and is a bit like bringing a bazooka to a fist fight. MBNASlayer

Hi Andy, I wondered if you had a chance to look at the WS that I have attached? As an aside I have received a separate letter of the costs that Restons are claiming......nearly £3k!! This includes £500 for a Barrister who is head of chambers. Does this mean that they have sought a barristers opinion on the case and if so is it fair to add this cost in a small claims hearing? The case is next week and you can probably tell from the time of this post that this is getting pretty stressful as I may owe a 5-figure sum in a few days......or on the positive side I may be debt free, depending on which way it goes in court. Thanks MBNASlayer

Hi Andy, At the Summary Judgement the DJ did say that both parties can submit further evidence for the hearing. I have attached their WS. I think I have got my arguments sorted but would be good to get your thoughts. Cheers MBNASlayer 3465_001.pdf

Hi all, So I have now received a bundle of papers from the other side along with an updated WS. They have now entered a 'new' Terms of Conditions document which Reston state 'were previously provided to the firm (Restons) in respect of a separate matter which also related to an MBNA credit agreement entered in to in XXXX'. It is probably worth stating that this T&C's document does not have any date stamp in the bottom corner which, from experience, the MBNA documents usually have. The T&C state a number of points but the relevant being the following: Clause X of the T&C sets out when all amounts under the agreement will become payable on demand and is followed by; Clause Y a) this agreement ends and b) You fail to make a payment in full on or before its due date. Clause Z Before a demand for payment under clause X, the creditor is required to carry out any procedures as required by law and if a demand is made under clause X , the creditor will inform you o their reasons immediately. Restons then go on to say that this shows they were required to issue a DN prior to making a demand for full payment and ending the agreement and this was also required by S87 of the CCA. Therefore the date of the DN is when the cause of action date began. A couple of points from me: 1) Undated T&C's that have not previously been supplied. 2) The DJ has already stated that they were required to issue a DN under S.87 CCA but he said this was to provide protection to debtors and should not effect the time limit for being SB. I hope the above all makes sense. Do you think it best that i press the points that the T&C are undated and DJ has already giving his opinion on the DN or is there anything else you think I should bring up? I'm not sure it will be the same DJ as it is another local court but not the one where the Summary Judgement hearing was. Thanks as always. MBNASlayer

Well I have spoken to the court who have confirmed the fee has been paid by Arrow/Reston so I presume they are proceeding. Do I have to submit another witness statement? Thanks guys MBNASlayer

Ok thanks Andy, so we wait and see what they want to do next? Cheers

Hi all, I have now received written confirmation from the court confirming the decision with a hearing date in November. What do i need to do now? Submit another Witness Statement to the court 14 days prior as with the Summary Judgement hearing? Also I assume it is possible that another DJ may have a different interpretation of when the cause of action begins? If you can let me know that would be great. Thanks MBNASlayer

OK so just back from court. Good news but its not over. DJ has AGREED with my argument that the case is SB. However the case has not been struck out but put on the track for the Small Claims court. He said the only Reason he didn't strike it out was because the full T&C's were not available. As this was for summary judgement and I do have a chance of defending the claim. I argued the breach occured with the first payment was missed. The limited T&C from MBNA made it a requirement that I make payment 30 days from statement date. Failure to do so was a breach. He also agreed this is when the cause of action began. He advised that the claimaint can submit further documents (I.E Full T&C's) in case they state anything different. So I guess it is round 1 to me and now see what the other side want to do! Thanks everyone MBNASlayer

Hi all, So the hearing is early next week. I have received another WS from Reston's basically re-asserting that the SB starts from when DN issued not from final payment. If anyone has any relevant papers, case law or information that can help back up my argument it would be great if you can point me in the right direction. All the professionals I have spoken to believe it is SB, including a local solicitor who specialise in consumer debt but it would be good to have some more ammunition. Thanks and finger crossed for next week!

Hi all, By way of an update my offer of 20% F&FS was turned down, no surprise there! I applied for the date to be changed due to holiday and it has been put back for a couple of weeks. I will let you know how it goes. One question - during the Summary Judgement hearing my whole argument to go to a hearing is the debt is SB. Restons will argue that the SB starts from cause of action which is when DN is issued. I have legal textbooks written by a DJ, briefings by barristers to solicitors as well as the national debt helpline who all agree with my position that the SB clock starts from the missed payment. Anything else I should be arguing oat this hearing? For example is it possible the DJ will state it is SB and therefore no need to go for a trial? Thanks MBNASlayer

Well I was going to go in at around 15% but I guess that will be rejected!!

Wow, 60% seems high. They had already offered over a 50% discount just after the claim was submitted to the court.

Ok, thanks Andy. I spoke to Restons earlier i know, i know!) to clarify and the hearing is just to see if the judge will throw out my defence or go to trial. I mentioned that we both have our position and there is a risk to both sides if it goes to court. The person at Restons said that if I were to make a F&F then he can put that to their client. I have to say its tempting just to make it go away. Any thoughts on what % of the amount owed they would accept? Cheer

Ok, thanks Andy. I am out of the Country then so cant attend. I have hand delivered a letter to the Court (they say not received) and emailed asking for a change of date! What is the issue you see with the cause of action argument?

Hi Andy, All I got way the letter regarding the Summary Judgement hearing confirming the date at my local court. There wasn't a Notice of Allocation or court directions unless you are refering to the single paragraph letter from Nottingham CC advising it had been passed to my local court. I am a bit confused now as to what the hearing is for? Sorry but this has confused me a bit and the closer the date the more nervous I am becoming, particularly as I cant attend! MBNASlayer

Sorry Andy I'm not sure what the difference is. All I have received was the original details from Nottingham County Court advising it had been transferred to my local court. Following that all I have received from the court is a letter entitled Notice of Hearing. It states the Summary Judgement Hearing will take place on ... August. at ......County Court when you should attend. As I am on holiday on that date I have written to them asking for a change of the date. Does this all make sense of have I missed something? Cheers

Hi Andy, Sorry for my confusion. So the date I have been given by the Court for a Summary Judgement in August is not a trial that I need to attend? Thanks

Hi Andy, I just received the Application Notice and supporting evidence. Their covering letter says I should receive and Order from the Court in due course confirming their decision but nothing received other than a date for the Summary Judgement. Thanks MBNASlayer

Now attached, hopefully correctly! 0265_001.pdf

Ok, I'll re scan in a second. Do I need to do anything to this attachment or will it not show?

Hi, I have attached the Restons Witness Statement, hopefully I have blocked out all the persona info! I look forward to hearing from you. Cheers MBNASlayer 0251_001.pdf