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

[pedross]

Good question.

 

I have seen a POC from them (Restons), where they tried to argue that as they had reduced the credit limit to zero, they could then demand the full balance without a DN.

 

Errrr... thats's a non starter. Off hand I can't remenber which clause it is, (anyone?), that specifically states that no provision in a regulated agreement can overide the CCA Act.

 

David

 

Good point. I had thought about that one Cashins but do they just think that they are one step ahead and it will take us a while to catch up or have they had their legal department on overtime?

[diddydicky]

Good point. I had thought about that one Cashins but do they just think that they are one step ahead and it will take us a while to catch up or have they had their legal department on overtime?

 

i honestly dont think they consult their legal dept

 

i think they have monday morning team meetings s or brainstorming sessions and some dimwit comes up with a new tack and they try it

 

when they get themselves in to the doo doo with it then they go sqealing to the legal bods to extracate them from it

[cashins]

Good point. I had thought about that one Cashins but do they just think that they are one step ahead and it will take us a while to catch up or have they had their legal department on overtime?

 

Not sure.

 

Think the reason they got Restons on board is that oufit will try to blag just about anything through the courts. Someones SAR recently showed that Restons had requested the relevant documents fromMBNA after they had issued a POC.

 

Think they are getting desperate up there but it's still a good idea to try and figure out the plot on this.

 

Be a good idea to start another thread though as we are trampling all over this one. (oooops sorry).

 

david

[pedross]

Not sure.

 

Be a good idea to start another thread though as we are trampling all over this one. (oooops sorry).

 

david

 

You may be right but don't look at me I have only just learnt how to add the above box thanks to DD. You start one cashins, if we just help one person it will be worth it.

[cashins]

You may be right but don't look at me I have only just learnt how to add the above box thanks to DD. You start one cashins, if we just help one person it will be worth it.

 

Suggest we take any further general discussion over to here.

 

http://www.consumeractiongroup.co.uk/forum/mbna/184041-all-mbna-caggers-fight-67.html

 

David

[AA99]

http://www.consumeractiongroup.co.uk/forum/campaign/217672-mbna-harrasement-ico.html

[Mr Happy]

Well I am back in court tomorrow (Friday).

 

Just wondered if anyone could give me a few more pointers as regarding my defence, things have changed alot since I started this thread, a summary of the current lines of thought would be nice.

 

When I started The invalid Default notice was enough to quash the case, now its just enough to prevent one course of action.

Then the CCA would be invalid if the term's weren't included now it appears it can be in a separate sheet provided it is linked some way and the title for the CCA could be anything not just Consumer Credit Agreement, just trying to get it clear in my head what I am relying on.

 

A summary like

 

Default notice is invalid preventing act XX being used, alternative act XXX can be used but can be counteracted if XX was incorrect.

 

I have seen you guys mentioning things like the above but it would be handy for mine and any other people in the same situation to have like a flow chart on how to defend.

 

I am not as scared as I was last time but they have had more time to prepare so it may be a longer battle.

[sunflower99]

wishing you luck for tommorrow! Hope you give Restons some more grief!

[citizenB]

Can you post a link to your defence and a brief summary of where you are at to make it easier for people to advise.

[Mr Happy]

IN THE XXXXX COUNTY COURTCLAIM NUMBER XXXXX

 

BETWEEN

MBNA Europe Bank Ltd

Claimant

 

and

Mr XXXXXXXXXX

Defendant

 

 

 

 

Default notice

There is a default notice attached to the evidence that has been supplied by Restons to the court, this Default notice is invalid in the fact that there is insufficient time from date of issue to the remedy time.

Restons realised this and made up a story through a witness statement from MBNA stating that the Default notice was created in error and that the remedy date was the 24th of August and not the 23rd.

The original default notice has been checked and it has a remedy date of the 23rd of August, this invalidates the default notice, Restons also state that the default was sent First Class Ordinary post when in fact it was sent second class, therefore even if the date mentioned on the falsely corrected default was true the default would still be invalid .

 

Accordingly the ‘default notice’ was invalid and failure of a default notice to be accurate invalidates the default notice [Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255] {Case Study 1} which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counter-claim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119) {Case Study 2}

 

 

Consumer Credit Agreement

1) The Claimant in this application has produced a document MBNA2 which the Claimant alleges to be the credit card agreement entered into by the parties.

2) Section 61 of the Consumer Credit Act 1974 {Legal 4/5} lays down certain conditions which must be complied with if such agreement is to be enforced by the court.

3) Firstly, the agreement must be signed by both the creditor and the debtor. Secondly, the agreement must be legible. Thirdly, the agreement must contain certain prescribed terms under regulations made by the Secretary of State under section 60(1) {Legal 6} CCA 1974. The regulations referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553

4) It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the prescribed terms must be contained within the body of the agreement and not in a separate document. [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299] {Case Study 3}

5) It is denied that this document MBNA2 is the agreement entered into by the parties. The document is clearly headed ‘PRIORITY REQUEST FORM’ and is evidently not an agreement

Further, it is denied that the document MBNA2 contains the terms in the prescribed manner, and therefore the agreement does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

 

The courts power of enforcement

1) The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with.

2) Case law [Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)] {Case Study 4} also confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced.

 

Submission

3) These are the documents upon which the Claimant relies for the purpose of satisfying the court that the agreement upon which its case is based is an enforceable agreement.

4) After giving full consideration to the claimant’s application, I am unable to admit that I am indebted to the claimant and further more I am unable to assess if the contract which the claimant claims to be reliant upon is legally enforceable or is properly executed as required by the Consumer Credit Act 1974. Consequently, since the Claimant’s case is still substantially flawed , I put the claimant to strict proof that the debt is valid and further more legally enforceable under the Consumer Credit Act 1974

5) At trial I will assert by reference to the documents and by submissions to the court as to fact and law that the documents relied upon by the Claimant are inadequate for the purpose of demonstrating that at the date of the commencement of this case, the Claimant was entitled to any of the relief sought.

6) I submit that

a) Pursuant to CPR 3.4 (2) the Claimant’s statement of case discloses no reasonable grounds for bringing the claim and/or that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; and

b) Pursuant to CPR 24.2 (a) (i) that claimant has no real prospect of succeeding on the claim or issue.

7) In view of the above, I request that the Court makes an Order that the statement of case of the Claimant be struck out and that judgment be entered against the Claimant and that the Claimant do pay the Defendant’s costs.

 

 

 

I have it saved as an open office document and it may not be legible for some people so posted as a quote, if it loses formatting I will find another way around it.

 

Its made up of a combination of posts from this site so does not read particularly well but I believe it may have helped me as a sole litigant shaking and quivering by being taken from my comfort zone lost in a sea of sharks and crabs.

 

Anything else you need just ask, im on all day.

Edited September 3, 2009 by citizenB
Just tidied up the formatting

[Mr Happy]

PS

It was adjourned (Guess that's what its called)pending response from the claimant at court because of the invalid default notice, Restons responded by requesting it be returned to court at the last possible moment.

 

As you well know they normally leave correspondence to the last minute and I was expecting a letter or phone call today trying to come to some arrangement, not received it yet so I guess tomorrow.

 

They don't like to give you chance to get legal advice before replying to their time critical offers.

[citizenB]

Hi Mr Happy, it posted ok and readable

 

Ok, I will have a scout round and see if there is anything I can find to help.

 

Have to pop out for an hour or so, back later.

[citizenB]

The following might give you some ideas.

 

From post 341 in this link

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/137617-zhanzhibar-amex-aic-newman-35.html

 

From post 781 on this one

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/170484-fairbyblue-mbna-restons-court-79.html

 

HTH... back later.

[supasnooper]

Make sure you have another two copies of whatever you are going to use in court to cover the possibilty of the Judge...... losing, spilling coffee, shredding, misfiling your witness statement, case law documentary evidence....you'd be surprised how many times this has happened.

 

You have the proper DN; how else would you get it or be in possession of it ?

It does not matter what Restons produce... it is NOT the original.

Point to the Civil Evidence Act 1995 as Restons have provided a copy Default Notice.

 

Put Restons to strict proof of postage used and when you received it ( I doubt you signed for its delivery )- if you have the original envelope then take this with you.

Refer to Woodchester v Swain and point out the reference to a defective DN.

 

Also, make sure you have a copy of your costs to hand ( and copies yet again ).

 

HTH

Edited September 3, 2009 by supasnooper
extra info

[Mydogsawestie]

Hi Mr Happy

 

Pleased to hear you've been granted a bit more breathing space.

 

I'm stillwaiting on my outcome from the DJ where I attended court fighting off Restons at a SJ hearing I had in July too. Heres a link to my day in court & stuff I fought back with in posting #223 Court papers help required pls If it provides any extra evidence for ammunition then I hope it helps.

 

I also forgot to post regarding the DN on my day in court the copy DN I got served by Restons of the supposedly original, breached the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as it failed to set out the name and a postal address of the creditor or owner as laid out in schedule 2 of the regulations, regulation 2(2) paragraph 2.

 

My copy DN from Restons was missing the MBNA's bits on the top & registration no etc (like the original had) so this meant it had breached the companies act, as it did not bear the companies registered address and registration number on it so was not a representation then.

 

The judge asked the solicitor what he had to say in response to this to which his reply was along the lines of he thought it did have the details on it. The judge then corrected him by telling him it didn't as he had a copy of there DN from me in front of him

 

Good luck for your next appearance, I am still waiting on my order/date letter from the DJ which should be due anytime :idea:

[underdog13]

Best of luck for later on today, Mr Happy

[Josie8]

Good Luck

[supasnooper]

Good luck for today.

 

Be polite but assertive with the points you wish to make.

 

Have read of this link to see if there are some last minute pointers - http://www.consumeractiongroup.co.uk...t-2171582.html

[Gazza112]

Good Luck Mr Happy with your case today.

 

Gaz

[citizenB]

Good luck Mr H:)

[exchange]

PS

It was adjourned (Guess that's what its called)pending response from the claimant at court because of the invalid default notice, Restons responded by requesting it be returned to court at the last possible moment.

 

As you well know they normally leave correspondence to the last minute and I was expecting a letter or phone call today trying to come to some arrangement, not received it yet so I guess tomorrow.

 

They don't like to give you chance to get legal advice before replying to their time critical offers.

 

Guys and Gals

 

Don't think it's happenning today according to this post!

[citizenB]

Well I am back in court tomorrow (Friday).

 

Just wondered if anyone could give me a few more pointers as regarding my defence, things have changed alot since I started this thread, a summary of the current lines of thought would be nice.

 

When I started The invalid Default notice was enough to quash the case, now its just enough to prevent one course of action.

Then the CCA would be invalid if the term's weren't included now it appears it can be in a separate sheet provided it is linked some way and the title for the CCA could be anything not just Consumer Credit Agreement, just trying to get it clear in my head what I am relying on.

 

A summary like

 

Default notice is invalid preventing act XX being used, alternative act XXX can be used but can be counteracted if XX was incorrect.

 

I have seen you guys mentioning things like the above but it would be handy for mine and any other people in the same situation to have like a flow chart on how to defend.

 

I am not as scared as I was last time but they have had more time to prepare so it may be a longer battle.

 

PS

It was adjourned (Guess that's what its called)pending response from the claimant at court because of the invalid default notice, Restons responded by requesting it be returned to court at the last possible moment.

 

As you well know they normally leave correspondence to the last minute and I was expecting a letter or phone call today trying to come to some arrangement, not received it yet so I guess tomorrow.

 

They don't like to give you chance to get legal advice before replying to their time critical offers.

 

Guys and Gals

 

Don't think it's happenning today according to this post!

 

Exchange, yes it is today, the post you are referencing was in response to a question of mine where I asked Mr H for a summary of where he was at... he was just pointing out that it had been adjourned at an earlier hearing.

[Mr Happy]

Guys and Gals

 

Don't think it's happenning today according to this post!

 

 

It is any minute now

 

 

 

That was a PS from my previous post.

 

Soz didn't make it clear.

[exchange]

Sorry for confusion, good luck from me too.

 

Exchange

[Mr Happy]

Thank you everyone for your support leaving in a few minutes, court case is at 12 so probably be in by 3, if last time has anything to go by.