MBNA / Restons

[guzzleguts]

Hi angmarie

 

Thats rubbish about them not having to respond to your DSAR, i would write back stating the time limit of 40 days from when they received it still stands and you will be complaining to the information commissioner's office about their conduct.

 

The cca request is 12+2 days

 

If you start a new thread on this you will get all the help you need.

 

GG

[angmarie]

Hi angmarie

 

Thats rubbish about them not having to respond to your DSAR, i would write back stating the time limit of 40 days from when they received it still stands and you will be complaining to the information commissioner's office about their conduct.

 

The cca request is 12+2 days

 

If you start a new thread on this you will get all the help you need.

 

GG

 

Thank you so much Guzzle for responding, i have read your comments and advice with much interest this morning, im sorry i dont know how to start my own thread. I have written again sent RD letter yesterday and threw in few lines i jotted down whilst reading up FTO info, so we see what happens now.

 

Ang

[guzzleguts]

Forums, Threads and Posts

 

Hi Ang, hope this helps on the new thread issue, this explains it.

 

GG

[angmarie]

Thanks GG im a little clearer now, im quick learner.

[Cartier-Bresson]

Hi Angmarie - you have certainly stumbled upon the right place for great advice regarding your MBNA problems - I'll sub to your thread as soon as it is created - cheers > CB

[Cartier-Bresson]

Okidoke - I'll need to complete this AQ by the end of today if possible to ensure I can get it to my local court in time for the deadline on Wednesday [8th July 2009].

 

Based upon what I have read so far in relation to these N149 AQ's, via the helpful links CitB sent me, I have answered the following:

 

Section A - Settlement = NO

Section B - Location of Hearing = NO

Section C - Track = YES

Section D - Witnesses = 0

Section E - Experts = NO

Section F - Hearing = NO

Section G - Other Info = HELP REQUIRED !

Section H - Fee - NO

Section I - Signature = Managed this one ok !

 

In relation to Section G ....I'm not sure what it is I'm supposed to be doing here. I have read some responses to this via other posts etc but they seem to be very specific to the case [which I guess they should be] .... my specifics in brief are that I don't believe that MBNA have an enforceable copy of my CCA and there could also potentially be a problem with my DN issued [iE: Invalid]

 

How do I now request a copy from the court, all the docs Restons are going to use in my case against me ?

 

Sorry to have left this so late - but any help would be much appreciated at this stage .... I'm becoming a bit confused .... which isn't difficult for me ! - cheers > CB

[Cartier-Bresson]

Regarding Section G ..... I have just lifted this [in red] from what B3rty posted on Caanan's thread which reads as follows: [Could somebody have a quick look at this and make sure it would be relevant for me to use it for my case ????? Also .... the entry section on the actual document is quite small .... would I be correct in assuming that I should write in up to Point 2, then attach the rest as a seperate doc ??? Many thanks guys !]

 

Section G - other information

 

1. It is requested the court give consideration to using its case management powers pursuant to part 3.4 of the Civil Procedure Rules to strike out the claimants claim for failing to comply with the requirements of inter alia part 16.2(1) (d) and fails to comply with the requirements of practice Direction 16 in so far that it fails to comply with point 7.3 which states

 

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

The claimant failings to supply this documentation has placed me at a serious disadvantage, especially when it is considered that the credit agreement must comply with the Consumer Credit act 1974 and the Consumer Credit (Agreement) regulations made under the act. The consequences of the document failing to comply with the regulations and the Act can render the agreement unenforceable even by the honourable court.

 

If the court does not consider it appropriate to strike out the claimants case as suggested above, I respectfully request that the court considers the request set out below in point 2

 

 

 

2. If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

 

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

[citizenB]

I think you can put something like "see attached" and then head up a blank page

 

Section G and then type up whatever you want to say.

 

Dont forget to put all the Court details, claim number -v- etc....

 

 

Just checking the rest BRB

[citizenB]

Right you need to also do your Draft Directions.

 

I think this works...

 

A tick no

B tick no

C tick yes

D zero

E tick no leave the rest blank

F self explanatory

G write in the box “please see the attached section G”

H tick no

I sign and date etc

 

 

 

Other Information

 

 

 

 

 

Section G

 

As above......

 

 

 

Draft Order for Directions

 

 

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service

© notices of assignment together with proofs of service

(d) the deed of assignment the original document must be brought to the hearing (I dont know if this was assigned, I dont think so.. so take these 2 items out)

(e) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

(f) any other documents on which the claimant will rely

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

__________________

Edited July 6, 2009 by citizenB
Removed duplicated information.

[Cartier-Bresson]

This is great .... many thanks Cit-B !

 

Just to be totally sure then ... the date of making the case management directions is 8th July 2009 [iE: as indicated on the AQ .... The last date for filing with Court Office]

 

If this is correct .... 2 weeks from this date is the 22nd July 2009 and 6 weeks would be 19th August ??? I've tripped up with my dates before and nearly came unstuck .... so want to be totally sure here !

 

Also .... I know this sounds stupid but ... under section 1a ... the 'under reference xxxxxxxxx' bit - I guess this is my actual account number with the claimant ?

 

many thanks again > CB

[citizenB]

Hi CB, I come up with those 2 dates as well. However, I am going to try and get someone to triple check for us:D

[creditcardmug]

Hi, you don't fill in the dates in items 1 and 4, the judge will do that, so leave as is, just fill in the xxxs.

 

I haven't read your thread, so don't know whether this has been assigned..if it hasn't delete the red bits to suit and renumber etc. Also you need to alter item 3 to say small claims, not fast track, as i presume this claim is for less than 5k?

 

You need to add some other info as well, so head the page with this,

 

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further

[creditcardmug]

A further thought, change item 1b to read "the default notice together with proof of service the original document must be brought to the hearing"

[Cartier-Bresson]

Thanks Creditcardmug & Cit-B ...... have made all the amends now. Just wanted to comfirm that under section 1a ... the 'under reference xxxxxxxxx' bit - this is my actual account number with the claimant ?

 

cheers > CB

[creditcardmug]

Thanks Creditcardmug & Cit-B ...... have made all the amends now. Just wanted to comfirm that under section 1a ... the 'under reference xxxxxxxxx' bit - this is my actual account number with the claimant ?

 

cheers > CB

 

Yes it is if they have included it in the claim, if not delete that bit

[Cartier-Bresson]

Help Required !

 

I have just recieved the 'Application Notice' from my local court, which is due to take place on 21st August 2009 [just over 5 weeks away !]

 

I'm going to need help on how to progress with this now if possible. I have recieved a huge package of papers from the court including the following:

 

1. Notice of APPLICATION NOTICE

2. Application Notice [from Restons asking for An Order for Summary Judgment under Part 24.2 of the Civil Procedures Rules]

3. The Default Notice from MBNA dated 06.03.09

4. The Credit Card Application Form [What MBNA are claiming as a CCA]

5. The current T & C's from MBNA [4 pages worth]

6. Statements from the account date range 19.05.04 to 17.02.09 [Actual account was opened on 27.12.01]

 

I can post the details of 'Panel 10' of the application notice if this will help to prepare a full defence ???? [This sheet basically sets out the evidence Restons will be relying on in court to support their application.]

 

My main arguments with MBNA are the following:

 

1. They cannot supply me with what could be classed as an enforceable CCA - see previous posts and image etc

2. The debt is for £3k but they have claimed over £1, 300 in charges from me since 2003 ...They haven't responded to my request to claim back these charges sent to Restons at the end of April 2009.

3. The Default Notice they issued me is questionable.

 

Is this going to be enough to successfully fight this case in court ???

 

 

Thanks again for your help guys > Regards > C-B

[supasnooper]

As predicted, a Typical response from Restons - creatures of habit you see.

 

They always go for Summary Judgment.

 

You'll need to get a Witness Statement together to oppose their SJ application. There's one in my thread- http://www.consumeractiongroup.co.uk/forum/legal-issues/160395-restons-court-action.html

 

Can you tell us more about the Default notice ?

[citizenB]

The plot thickens !!!!

 

Having just spent some time looking really closely at what my CCA actually states I seem to have come across something that would suggest that these two documents are certainly NOT related !

 

On the front page where I have signed .... just underneath in the Additional Cardholders - a free service' section it states:

 

IMPORTANT - DATA PROTECTION - Additional Cardholder

By signing this agreement you agree that we may process, use, record and disclose Personal Information about you as described in Condition 11 in the Terms & Conditions.

 

 

But when you turn over to the T & C's on the back page ..... Condition 11 states:

 

11. For the period of six months starting on the date of opening the account, we will not increase the interest rate on any Retail Transaction, Cash Transaction, Cheque Transaction, Balance Transfer, or on any handling charge.

 

 

So it is clearly refering to a differnt set of T&C's !!!!

 

Is this correct or am I going mad here !!!

 

Just bringing this bit of information forward in order to throw doubt on the alleged agreement.

 

Cartier, can you let us have more information on the DN. I cant remember if you did actually receive one or is this is one that Restons have produced for the main event. I think you are probably aware that there needs to be 14 clear days from the date of the DN. There should be an allowance of either 2 days 1st or 4 days 2nd in respect of posting. If there is no envelope or confirmation of postal service then it is deemed to have been posted 2nd class. The DN needs to be accurate, you have your spreadsheet showing the amount of charges which I believe are quite considerable. so the DN cannot be accurate.

 

Also, they have not provided the statements from inception of the account, you need those in order to prove the accuracy of the amount they are claiming.

 

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Service of documents by post

 

All Text Amended

1. Interpretation Act 1978, Section 7

This states:-

"7. Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1.

Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2.

To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a)

in the case of first class mail, on the second working day after posting;

(b)

in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any band holiday.

3.

Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4.

This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

[Cartier-Bresson]

Hi Snoops / Cit B

 

Right ... I'll need to prepare a WS as soon as i can then - do either of you know when this is supposed to be submitted to the Court ? I'm assuming prior to the actual date of the hearing on the 21st August ??

 

Snoops ... as regards to the DN - Cit B has advised me on this, in that it looks invalid for two reasons:

 

1. Based on the postage dates and the DN issue date there was insufficient time given to allow the breach to be remedied.

2. The DN refers to Clause 8 in the T&C's which when looked at actually has nothing to do with repayment of the account but relates to APR etc.

 

In your Post on 23rd April [no#13] you mentioned that your CCA looked exactly the same as mine but it was yet to be determined whether or not it would be enforceable in court - was this ever actually determined in conclusion to your win against MBNA / Restons ???

 

I'm going to go through your thread again now to have a good look at your WS.

 

Cheers Folks > CB

[Mydogsawestie]

Hi Cartier having just been subjected to your course of action with Restons & court this week from them to try getting the judge to perform a summary judgement I am pleased to say the judge dismissed it. I have posted up how my day went Court papers help required pls & wish you success too in defending against them. The caggers on your thread too helped me get to where I am at so I'm sure you'll do fine aswell. Good luck & feel free to take notes similar to yours from my thread too.

[sunflower99]

Hi Cartier!

I just got an AQ form from Restons now so am in same boat as you again!Your thread is very helpful to me too and helping me get more of an idea what to consider putting on mine,I am having problem with photo bucket at moment so will have a go at putting my AQ forms on my Restons thread for advice tommorrow when i get home from work.I assume they will probably apply for an SJ aginst me too!

[exchange]

Petition to: Request a special investigation by the FSA and OFT into the harrassment by consumers and their families through the debt collection practices of MBNA and specifically the practices related to telephone calls and defaults while in dispute

 

Posting this link to get MBNA's practices noticed. Please sign.

[supasnooper]

Hi Snoops / Cit B

 

Right ... I'll need to prepare a WS as soon as i can then - do either of you know when this is supposed to be submitted to the Court ? I'm assuming prior to the actual date of the hearing on the 21st August ??

 

Your Witness Statement must be filed to the court and served to Restons at least 7 days before your hearing.

 

 

Snoops ... as regards to the DN - Cit B has advised me on this, in that it looks invalid for two reasons:

 

1. Based on the postage dates and the DN issue date there was insufficient time given to allow the breach to be remedied.

 

2. The DN refers to Clause 8 in the T&C's which when looked at actually has nothing to do with repayment of the account but relates to APR etc.

 

In your Post on 23rd April [no#13] you mentioned that your CCA looked exactly the same as mine but it was yet to be determined whether or not it would be enforceable in court - was this ever actually determined in conclusion to your win against MBNA / Restons ???

 

No, the enforcability of my CCA wasn't determined as Restons opened the hearing by stating the Default Notice was defective.

 

I'm going to go through your thread again now to have a good look at your WS.

 

If you have received similar documentation then feel free to use whatever you wish.............After all, this is what CAG is about

My witness Statement is here - http://www.consumeractiongroup.co.uk/forum/show-post/post-1903956.html

 

Cheers Folks > CB

 

Hope my comments help.

[sunflower99]

Right you need to also do your Draft Directions.

 

I think this works...

 

A tick no

B tick no

C tick yes

D zero

E tick no leave the rest blank

F self explanatory

G write in the box “please see the attached section G”

H tick no

I sign and date etc

 

 

 

Other Information

 

 

 

 

 

Section G

 

As above......

 

 

 

Draft Order for Directions

 

 

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service

© notices of assignment together with proofs of service

(d) the deed of assignment the original document must be brought to the hearing (I dont know if this was assigned, I dont think so.. so take these 2 items out)

(e) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

(f) any other documents on which the claimant will rely

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

__________________

Did you sign and date this extra paper in above post you enclosed with your AQ form.?I know i have to head each paper i enclose with my case references which i have done in my attached papers similar to above one i am sending with my AQ form but was not sure if i was supposed to sign and date it as well ?Alsop someone tole me its a god idea to write defendants copy on it?

[Cartier-Bresson]

Hi Sunflower - I didn't sign and date any additional paperwork sent with the AQ .... just made sure my name and case reference number was included at top. Hope this helps > Regards > C-B