MBNA/Restons claimform - old A+L Card **WON+COSTS**

[robcag]

Hi FB

 

In the words of dear old Victor M, "I don't effing believe it!"

 

They even state on the DN that if you don't comply they will terminate your account AGAIN!

 

Just out of interest was this sent 1st or 2nd class? It would be funny if they had used 2nd class and the DN was invalid for the same reasons as before!

 

I think I'd be inclined to ignore it at this stage and wait and see what happens (others may have far better advice though!).

 

What an absolute load of ballcocks this is turning out to be.

 

I wonder if they'll use Restons again?

 

Cheers

Rob

[fairbyblue]

Hi FB

 

In the words of dear old Victor M, "I don't effing believe it!"

 

They even state on the DN that if you don't comply they will terminate your account AGAIN!

 

Just out of interest was this sent 1st or 2nd class? It would be funny if they had used 2nd class and the DN was invalid for the same reasons as before!

 

I think I'd be inclined to ignore it at this stage and wait and see what happens (others may have far better advice though!).

 

What an absolute load of ballcocks this is turning out to be.

 

I wonder if they'll use Restons again?

 

posted 11/8/09 and franked with 36p

 

As for restons hope so cos if i string it out long enough they will be paying costs again next year for my spends for my hollibobs

 

Edited August 12, 2009 by fairbyblue

[supasnooper]

I'd also take a look at SAx20's posts on termination in this thread -

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2356007.html

 

there some x20 posts before and after this post.

[angry cat]

MBNA appear to favour serving multiple DN's!

[robcag]

Hi FB

 

posted 11/8/09 and franked with 36p

 

As for restons hope so cos if i string it out long enough they will be paying costs again next year for my spends for my hollibobs

 

 

So, arguably 1st class (unless it was a heavy 2nd class ).

 

However, you have proof of the date of posting (11th) so not deemed served until 13th.

 

Add 14 days on takes you to the 27th as stated.

 

HOWEVER, they have used the standard phrase of taking action BEFORE THE DATE SHOWN which means if you take this quite literally, you would have to act by the 26th at the latest to comply with the BEFORE so thereby only giving you 13 clear days.

 

That argument has been put forward elsewhere in the forums, not least by surfaceagentx20, I think in his excellent sticky on dodgy DNs.

 

Worth bearing in mind if you need it, but I'm sure you'll be advised how to shake MBNA and their parasitic solicitors off before the neccessity arises!

 

Cheers

Rob

[42man]

The issuing of another default after the account is terminated is complete fiction !!!

[robcag]

The issuing of another default after the account is terminated is complete fiction !!!

 

Totally agree 42man!

 

I don't think some of these creditors know their rrr's from their elbows!

 

Cheers

Rob

[fairbyblue]

Hi FB

 

 

 

So, arguably 1st class (unless it was a heavy 2nd class ).

 

However, you have proof of the date of posting (11th) so not deemed served until 13th.

 

Add 14 days on takes you to the 27th as stated.

 

HOWEVER, they have used the standard phrase of taking action BEFORE THE DATE SHOWN which means if you take this quite literally, you would have to act by the 26th at the latest to comply with the BEFORE so thereby only giving you 13 clear days.

 

That argument has been put forward elsewhere in the forums, not least by surfaceagentx20, I think in his excellent sticky on dodgy DNs.

 

Worth bearing in mind if you need it, but I'm sure you'll be advised how to shake MBNA and their parasitic solicitors off before the neccessity arises!

 

Cheers

Rob

 

They are unbelievable. So thats their 3rd DN snookered, what about this email quote from solicitor at restons from last week for the original hearing

 

It is clearly open to the Bank as a creditor to serve a new default notice and claim the full balance. If the earlier default notice did not comply with the CCA or regulations made under it as you allege then the agreement could not have been terminated and the fact you have received correspondence indicating the contrary is immaterial. In any event termination of the account does not mean that the liability disappears.

and

Section 87 of the CCA states that a default notice is required where the

creditor wishes to terminate the agreement and claim the amount owed "by

reason of nay breach by the debtor...."

You will be aware that clause 10 of the Bank's terms and conditions

allows our client to terminate the agreement at any time and can do so

without having to demonstrate that you have breached any terms of the

agreement. It can terminate the agreement without serving a default

notice - which means that any alleged defect with the default notice is

irrelevant as it was not needed in the first place as our client will

rely on its contractual right to terminate the agreement. Your amended

defence states that the agreement is terminated.

and

You will note in your terms and conditions par 10 that the Bank has the right to contractually terminate the agreement at any time - if it does so you are liable to repay the outstanding balance. In other words the Bank does not have to serve a default notice which is only required if the Bank wants to bring the agreement to an end because of a failure to pay arrears or some other breach.

Paragraph 10 allows the Bank to terminate the agreement for any reason i.e. not a reason based on a breach of the agreement.

In other words the Bank does not have to rely on the default notice.

and just to make sure it is terminated that loks pretty final to me

 

 

[supasnooper]

If they carry on like this they'll be paying for your hols as well as the spends.

[fairbyblue]

as per surfaceagentx20

 

"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. "

[angry cat]

An ineffective DN/TN can be rectified by "the Creditor", prior to the issuing of proceedings.

[robcag]

Hi AC

 

An ineffective DN/TN can be rectified by "the Creditor", prior to the issuing of proceedings.

 

Not quite with you there

 

What if the creditor has terminated the account on the back of an invalid DN, what account remains to be defaulted or terminated?

 

Cheers

Rob

[citizenB]

Could you have a claim for harrassment. What are they on:confused:

[robcag]

Could you have a claim for harrassment. What are they on:confused:

 

I've also seen something (I think by pt2537) about taking action against such a pest as MBNA in this case in the form of a 'Cease and Desist' order.

 

I'm not sure, but this option may only be available to you if they try to issue fresh proceedings.

 

Cheers

Rob

[fairbyblue]

Could you have a claim for harrassment. What are they on:confused:

 

Dunno. They obviously dont like me, it would of been nice to have the costs and the notice of discontinuence before issueing the 3rd DN. Talk about wanting to get in there quick. So it was discontinued on friday 7/8/09 and monday 10/7/09 they print a new DN, I notice the amount to rectify is now approx £120 less than other 2 DN's and I not paid a penny since POC issued last december so god knows where that figure from.

[fairbyblue]

An ineffective DN/TN can be rectified by "the Creditor", prior to the issuing of proceedings.

 

They have served 2 DN's and went to court with them and was discontinued on 7/8/09 just before an all day trial. Got costs awarded to me so there has been nothing to change since friday and they go and issue new DN. Its well and truly terminated.

Edited August 12, 2009 by fairbyblue

[ifoughtthelaw]

Could you have a claim for harrassment. What are they on:confused:

 

Geeez - yes it must surely be harrassment in the true sense of the word.

 

I read somewhere on this forum a while ago about someone who recommended taking out an 'ex parte interlocutory injunction' for something similar I think. I wrote it down for reference in case it was ever needed! Would this be applicable here?

[pedross]

This is an absolute farce.

 

They make sure they get the DN correct and post it the next day so it is a day short.

 

They claim that they do not need the benefit of s87 and can teminate anyway then issue a new DN to get the benefit of s87.

 

They claim that they can rely on contract law to terminate which means it is terminated anyway so they cannot issue another DN and terminate again (in my opinion some will disagree) but they cannot enforce under contract law because the CCA takes presidence.

 

There may be more I got bored! Idiots!

 

Personally, I believe that they are trying to play clever by saying that although it is terminated you are still in default by not paying the arrears and you should write and say they made it clear at the last hearing that the agreement was terminated so you do not have to comply with the terms anymore. I do not see the point in going to court again and playing russian roulette.

 

This is just my opinion so make sure you ask some of the experts.

[fairbyblue]

Ok this is in the post to them tomorrow.

 

Dear Sir or Madam,

Re Account number XXXXXXXXXXXXXXXX

 

Please note that the debt which you are claiming to be entitled to has been before the Court under claim number xxxxx in the xxxxx County Court ,the lender failed to support their claim with any documents to prove I was indebted to their client and the outcome was favourable to me and therefore there is little more to say to you other than the matter has been dealt with, I consider the matter closed and would believe that the doctrine of Res Judicata applies here.

Can you confirm that you have removed all default notices with regard to this account with the appropriate credit reference agencies.

 

I trust that this will be the last correspondence that I will receive on the matter, however if you persist in attempting to contact me and your conduct becomes what I consider harassing I will instruct solicitors to make an application to the court for an injunction under s3 Protection from Harassment Act 1997. in addition I would report your conduct to the OFT as I consider that this would breach your consumer credit licence conditions.

 

I look forward to your clarification that the matter is closed, please note that no other correspondence will be entertained in this matter

 

 

Regards

[robcag]

Hi FB

 

I appreciate you're probably itching to give them a piece of your mind but I'd hold your fire for a little bit longer if I was in your position.

 

I know we've all gone through the whys and wherefores regarding re-issue of DNs after termination etc., but why not wait until after the remedy date on the latest DN has passed, then you can mention why they had to discontinue and rub their noses in it about the fact that even if if it were possible to Default/Terminate you for a third time, their latest attempt at getting it right would have failed again due to them posting the letter the day after they allegedly produced it?

 

Cheers

Rob

[fairbyblue]

Hi FB

 

I appreciate you're probably itching to give them a piece of your mind but I'd hold your fire for a little bit longer if I was in your position.

 

I know we've all gone through the whys and wherefores regarding re-issue of DNs after termination etc., but why not wait until after the remedy date on the latest DN has passed, then you can mention why they had to discontinue and rub their noses in it about the fact that even if if it were possible to Default/Terminate you for a third time, their latest attempt at getting it right would have failed again due to them posting the letter the day after they allegedly produced it?

 

Cheers

Rob

 

Ah Ah good thinking, I will leave it till after they termniate again !!!

got so much to learn havent I.

Cheers:D

[summerbreeze]

I thought 1st class mail is 39p for a small letter

 

Letter

Length: 240mm max

Width: 165mm max

Thickness: 5mm max

Weight range First Class prices 0-100g39p

 

 

 

 

So surely 36p is not enough for 1st class postage ?

[fairbyblue]

Hi, Good thinking but they might get it cheaper cos its franked and they may buy in bulk. Dunno if thats true

cheers

[summerbreeze]

I think if they buy it cheaper it would still have to say 39p or 1st on the envelope or it wouldnt go 1st class

[fairbyblue]

just checked royal mail business section

and looks as though they can pay 36p

 

http://www.royalmail.com/portal/rm/content1?catId=600024&mediaId=53800697#44300287