Re: Me vs MBNA court case looming help please / **DISCONTINUED**

[banker_rhymes_with]

Hello Pi-stoff!

 

Keep everything in writing when dealing with the MBNA.

 

Brace Yourself for Harassment

 

If they have not started the Telephone Harassment yet, they will. So get ready to start Logging all of their Calls, and try to set up a way to Record any Calls you do happen to take or want to take in order to obtain some names for your Harassment Log.

 

The Police will haul a banker into Court, but can't haul a bank into Court on Harassment, so you need names. If you do speak to them, get the employees full name, and ask for the name of the MBNA Manager who authorised the Call. After a while, you may spot a pattern. It's the Manager you want, even if he/she/it never actually called you. A pattern of abuse via Employees is enough if it all points back to one Manager every time. They can't then claim it was one rogue employee acting in isolation.

 

Card Rate Ramping

 

I think you have already gone past the point of being able to revert back to any sort of normality with MBNA. They caused that, not you, when they ramped up your Interest Rates into orbit to help you when in difficulty. If you are not on 35% now, you will be soon.

 

This was because they know you are at the end of your productive life as far as that Card is concerned, they have exhausted the Cash Cow. This happens a lot, and is an almost inevitable cycle with MBNA Cards. They'll milk you for many years, but eventually it will come to an end.

 

Now all they want to do is bleed the last few drops out of you while they can, whilst inflating the End Stage Debt into orbit to join your Interest Rate.

 

They do this for two reasons:

 

(1) To increase the size of any Tax Write Off if you cannot Pay, as they will assume is likely.

 

(2) To increase the Payment they will get from any pond life DCA that buys the final Debt. The DCA will offer them a percentage, and the MBNA have already worked out that 20% of 21k is better than 20% of 18k. Plus whatever they don't get from the DCA is again written off against Tax, so they really can't lose.

 

Establish the True Debt Position

 

From the size of the Debt, my guess is you have had this Card for a while, so it's quite possible you have Paid back more than you have spent over the Life of the Card.

 

Take some time out with a Spreadsheet, or invest in something like MS Money or any good basic Home Accounts Package. Enter everything, but make sure you use suitable Categories for the issues that matter.

 

What you want to see is how much you have ever Spent, how much you have Paid them, and then you need to see how much they have charged you and for what.

 

Rough guess is you'll have Spent say, 70k, and paid them back, say, 75k and they'll have charged you, say, 26k in charges. Add spending to charges and you get 96k. Deduct what you Paid them (75k) and you get left with 21k funnily enough.

 

Your numbers will differ, but you may get the idea.

 

Once you've done that, you can see where you really stand. If you have Paid them more than you have spent, then the 21k is effectively the sum total of all their Charges and Interest...plus you may've Paid more on top so that's a balance that went their way.

 

Now, what if they do not have an Enforceable Agreement? What if they never had one?

 

Do you still want to pay 21k, or even a part of that?

 

Unlawful Charges

 

If any of the 21k is made up of Late Fees, Over-Limit Fees etc, then you will want that taken off the Balance no matter what! Likewise, if those Charges pushed you over the edge, and then they raised your Interest Rate, you can also argue that the later Rates were Penalty Rates the MBNA caused themselves. You may have a case to have that Interest refunded too and/or taken off the Balance.

 

s78(1) Request Consumer Credit Act 1974

 

I'd press straight on and send them the above, you need to do this via Special Delivery, pay the £1 Statutory Fee, and then wait the 12+2 Working Days to see what they come up with.

 

You need Letter N here:

 

Creditors and DCAs - Letter Templates & Budget Planner

 

Subject Access Request

 

However, to cover all angles, I would also advise sending them a Data Protection Act 1998 SAR. That costs £10, and they have 40 Calendar Days to respond. Ask for everything. Here's where that Letter lives:

 

1. Data Protection Act, Subject Access Request letter - List of charges

 

Harassment Warning and No Visitors

 

Given the fact that they will almost certainly start Calling you and sending you silly Postcards saying a Debt Collector will come knocking soon, I'd also send them the Telephone Harassment Letter and remove any implied Right to visit you at your home, here you go:

 

Harassment by telephone - response letter

 

The Text to get them not to visit is below, edit as needed:

 

In the event that you intend to escalate the above Harassment to include Doorstep calls by your Employees or your Agents, please be advised that under OFT Rules, you can only visit me at my home if you make an appointment and I have absolutely no wish to make an appointment with you. There is no need, as Written Communication is quite acceptable in Law.

 

Please note, there is only an implied license under Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore, take note that I revoke license under Common Law for your Employees or Agents or Representatives to visit me at my property and, if any of the above does so, your Company will be liable to Damages for a Tort of Trespass and Civil Action will be taken.

 

Police Application

 

I can't see a problem if you go ahead and engage the MBNA using your Statutory Rights. If the MBNA fail to come up with an Enforceable Agreement, and you tell the Police that you have a formal legal Dispute with a Credit Card Company, that is highly likely to be accepted at face value. In this banking crisis we now find ourselves, I suspect the Police will know all too well this will be a common issue.

 

You are not admitting to a Credit problem, you are simply advising them that you are Disputing excessive bank Charges.

 

I do hope this helps.

 

Cheers,

BRW

Edited October 14, 2008 by banker_rhymes_with
Can't Spell or Type! +Correction in Green.

[banker_rhymes_with]

Hello Pi-stoff!

 

what is the best way to pay

 

Always best to use Postal Orders, as then you do not send them a nice crisp copy of your Signature...one that might just appear again later on an older Microfiche copy of an Agreement.

 

If this ends up sold to a DCA, you don't want to hand them anything they can use to their advantage, if you get my drift.

 

Print and do not Sign the CCA and S.A.R - (Subject Access Request) Letters.

 

If they really want a Signature, then change it so that you can spot it again later, and keep a Copy to prove what you sent.

 

You can also make it harder to copy by overlaying it over a grid something, i.e.

 

Pi-Stoff Pi-Stoff Pi-Stoff Pi-Stoff

Pi-Stoff Pi-Stoff Pi-Stoff Pi-Stoff

Pi-Stoff Pi-Stoff Pi-Stoff Pi-Stoff

Pi-Stoff Pi-Stoff Pi-Stoff Pi-Stoff

 

Sign over that in an ink that is close, and that will make it harder for an enterprising Photoshop wizard to extract it.

 

Are there any banks that are not blood sucking vultures?

 

No!

 

But the best of a bad lot is probably someone like the Co-Op who at least pretend to have some ethics.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Pi-Stoff!

 

I am unable to locate the default yet but I have piles of paperwork to search through.

 

Give it your best shot to find the Default Notice, becuase arguably the three Documents that matter are as follows:

 

The Agreement.

 

The Default Notice.

 

The Termination (via Letter or via their Action if asking for the Balance not otherwise due before Termination).

 

If either of the first two are flawed, this could win it for you if they have also Terminated.

 

Don't worry about the rest of the bumf, try to find the Default Notice if you can.

 

Why are you still reading this? You should be looking by now!

 

Cheers,

BRW

[banker_rhymes_with]

Hello Pi-Stoff!

 

CCM I am not sure what it means in the eyes of the law but guess it is an acceptable defence, has anyone else any comments regarding this or other options, not doubting that is is good just after a bit more reassurance, after all it is a big step.

 

It looks OK, after all, they are the ones taking you to Court, so it seems only reasonable that they should've outlined clearly upon what basis they were doing it, including copies of the relevant Documents to support their Claim.

 

Try and get other opinions, as always, and preferably from those on CAG who have some Court experience and/or legal training (that ain't me by the way).

 

Cheers,

BRW

[banker_rhymes_with]

Hello Mr Happy!

 

Well its getting close to the court date and I have just received a witness statement from MBNA saying that the default notice before was wrong but a correct notice would probably have been sent allowing for the required 14 days

That witness would appear to have made a terminological inexactitude, or two...as Winston Churchill once may've said to another MP!

 

You want that Witness to be given a damned good cross-examination, which I somehow doubt they will be too keen to undergo in the cold light of Court.

 

The Judge Lottery is your main problem, because there are some seriously inept Judges out there, who let bias overcome any problems the Law may cause them.

 

If you have the original copy of the Default Notice, and can argue the point about s87/s88, then the MBNA Witness Statement should be seen for what it is...

 

...desperation on their part!

 

This may suggest they are not actually going to venture into Court, but are trying to play Poker Face beforehand.

 

If you can afford a Solicitor, that is never a bad idea, but you need to get one who understands the issues, and is totally familiar with The Consumer Credit Act 1974.

 

Ideally, you need a Barrister. If you beat the MBNA, you will get any fees back. If you don't, then you need to plan an Appeal, or need to find maybe £25k once MBNA have added on costs (or ask the Judge to set a level of Payments you can afford).

 

The key is you must go in hard on this first Court appearance, and play to win. Don't go in too relaxed or underestimating the games the enemy will play.

 

If you get a fair Judge, then you should have nothing to fear.

 

Between now and Court, bone up on the Act, and especially s87/s88 and the Default Notice/Termination issues.

 

Get your Court Bundle ready, and make sure you have all the Law you need right at your finger tips, use Post-It Notes etc, to make sure you can go straight to what you may need in seconds.

 

If you can afford a Barrister, get one.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Mr H!

 

Quick Links for you:

 

The Consumer Credit Act 1974

 

The Consumer Credit Act 2006

 

On a very basic documentation level, one issue to be well prepared for is the question of your Defence Bundle.

 

The Empty Desk Trick

 

Some Courts and some Judges have an amazing ability to deny ever having received any documents before the Hearing.

 

So, expect the Judge to be sitting there with an evil smile and an empty desk, eyeing up your Court Bundle on the desk in front of you! So, make sure you take extra copies of all key documents, i.e. two extra Court Bundles.

 

It will be a PITA I know, but the ideal is to take three sets of everything, such as your Defence, plus anything else that you submitted to the Court and/or the opposition that was mentioned in your Defence and/or Disclosure by List.

 

Then, when the Judge and/or the enemy say, I do not have that, you will be ready to say, no problemo, open up your big bag and say, here's a second copy I prepared just in case the Court System had misplaced the copies I have already submitted.

 

IOW, whatever you want to have in front of you, make sure you have 2 extra copies of each item, so that you will not be left without the documents you need.

 

This appears to be a little trick that some Judges like to play, and will expect you to hand them your copy, either deliberately, or because they really are duffers who can't get themselves organised and/or have a useless Court system behind them who cannot get the documents you have already submitted to the Hearing.

 

In effect, this is a strategy to throw the Litigant in Person off balance. On the day it will look all tidy and genuine, but if you don't take copies, the net effect could be that you are sitting in front of an empty desk, having been deprived of your Court Bundle and needing to defend yourself just from memory.

 

Assuming that you can find the time and money to reel off 2 extra copies, then the next step is to make sure your own master copy is completely familiar to you. Practice what you may need to say, and try going to the document that you need in your Bundle to back that up. If it takes you 60 seconds when at home, it will feel like 60 minutes in Court...with a Judge tapping his/her finger on the bench and making huffing noises.

 

So, use Post-It Notes or Tabs, page numbers, anything to help you find what you need fast, so you can quote the part you need. Make sure the copies you make for the enemy have matching page numbers to your own Bundle, but there's no need to make their copies as easy to navigate as your own. Indeed, make theirs harder to navigate, perhaps by making the page numbers very small and feint (see below)...

 

IOW, if you think you will need to quote s127(3), have a Tab sticking out of your Bundle that says 127(3). So you can flick straight to it, and then tell Judge/Enemy that the document is on Bundle Page 156.

 

While they are flicking through to find Page 156, you'll have time to read what s127(3) says, so you are ready to read it out to the Court. Perhaps use a Yellow Highlighter to put a box around any key issues on the actual page so you won't need to waste time reading through a page of Text but can zoom straight to the Paragraph you need.

 

The point being, plan ahead to buy yourself as much time in Court as you can.

Make Notes and Plan your Responses

 

Next tip is when the enemy are droning on, make detailed notes of what they are saying, and put a big circle and number around anything they say that you do not agree with. Then, when they have finished speaking, if you did not understand anything, make them repeat it, and add extra notes.

 

Then, you should end up with some notes with big circles all numbered ready to trot out your counter arguments:

 

(1) The Agreement...I disagree that the Application Form they have produced represents an Agreement, because it is missing the Prescribed Terms, it's just an Application Form, the terms they say were on the back, are clearly not a copy of the back, and would not fit on the back Sir/Madam.

 

(2) Without the Prescribed Terms, the Court cannot enforce, see s61(1)(a), s65 and s127(3)...

 

...when Judge asks: "s127(3)?"

 

...you can whizz straight to that via your little tab, and say, that's on Page 156 Sir/Madam.

 

...when the Judge says: "but wasn't s127(3) repealed?"

 

...you can say no, if you look at the bottom of page 189 in relation to Schedule 3 of The Consumer Credit Act 2006, you will see that s127(3) still applies for Agreements made before 06/04/2007. The alleged Agreement is covered by The Consumer Credit Act 1974, so s127(3) remains in force.

 

If you see what I'm getting at?

 

The key is to have all the bumf you need, and have it so you can go straight to what you want.

 

What Did He Say...?

 

Don't let anything go over your head. If the enemy starts speaking in a language that only they and the Judge seem able to understand, then stop them, and say you do not know what is being said, could the enemy please slow down and explain things in layman's terms, please, as I am a Litigant in Person. Keep saying that if needed, to make sure Judge remembers that you are not a trained Barrister.

 

Keep making notes when not speaking yourself, and don't be shy about standing up for yourself and demanding a right to respond to any points that you disagree with. Your notes being to help you frame what you want to say when you get that chance.

 

If you get a decent and fair Judge, then the Hearing will be well conducted and all of the above will work in your favour.

 

If you get a biased and hostile Judge, then all of the above will help you to keep control and get your key points across, if only for the Tape and a future Appeal.

 

A Barrister will not be phased by any tricks, and it's likely that a biased Judge won't try so many on when faced with someone trained and experienced with how the Court System works.

 

However, there's no reason why you can't hack this as a Litigant in Person, but things can get tough if you lose the Judge Lottery and get a duffer Judge or a biased Judge. That's when preparation and planning may save the day.

 

I hope this helps.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Mr H!

 

Have you got the original Default Notice, i.e. have you found that in your own paperwork?

 

Remember, that only you have the original, or could have the original, because it has to be sent to you in paper format.

 

If they can't work out what they sent, then you can use that against them. Throw doubt that they know what they are doing.

 

Even better if you can find the original, and show their copy is not the same.

 

Cheers,

BRW

[banker_rhymes_with]

Hello Mr H!

 

Very well done, that now sets the stage for the killer blow you can deliver next time around. The Judge did not start off well, but appears to have come to her senses when you presented your opening statement.

 

That was a wise move I think.

 

I'm not sure about the costs issue, I think that can and should be challenged, but you'll need some better advice on that than I can offer. I would try and get PT2537 to comment on that.

 

Anyway, delighted to hear how it went.

 

Cheers,

BRW

Edited May 18, 2009 by banker_rhymes_with
Typo.

[banker_rhymes_with]

Hello Mr H!

 

To add to what Docman has said, Restons are being somewhat economical with the truth when it comes to their claim that banks cannot issue more than one Default Notice.

 

Many would argue that they can only issue one but, putting that aside for a moment, you'll note that they have avoided saying anything directly about banks issuing further Default Notices on Terminated Agreements.

 

In effect, they are trying to baffle you with bull, by combining a potential semi-truth, i.e. that more than one Default Notice can be issued, with a blatant untruth that they can discontinue a Claim, re-issue another Default Notice, and start a second Claim.

 

They are deliberately overlooking the inconvenient fact that the first Claim was confirmation that the Agreement was already Terminated, if indeed it had not already been Terminated before that.

 

The following quotation from Surfaceagentx20 is well worth repeating here, because it sums up the issue perfectly:

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

x20

One good thing appears to be that they are admitting the 1st Default Notice is defective. It therefore follows that by starting Court Action, their client Terminated the Agreement unlawfully, because they had failed to secure a valid Default Notice before doing so. Thus, they are admitting they started Court/Terminated when they were in no position to do so lawfully, having lost all the benefits of s87.

 

That is unlawful rescission of Contract/repudiatory breach of Contract...for which you can ask them for compensation.

 

Maybe it's time to bring up Kpohraror v Woolwich Building Society - [1996] 4 All ER 119, and ask them what they want to pay you?

 

Call their bluff.

 

Cheers,

BRW