Arrow/reston claimform - old MBNA card 'debt'

[MBNASlayer(1)]

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

[AndyOrch]

Thought so...so this is a seperate to the normal trial process....once you do get a hearing date you need to file and serve another witness statement in response (not less than 7 days pre hearing) and objection to their application arguing why they are wrong...if there is away around the cause of action argument or whether you want to push the agreement from 1998 is unenforceable for whatever reasons.

 

Andy

[MBNASlayer(1)]

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

[AndyOrch]

I assume your date in August was for the initial trial....you have not been given an hearing date for this application yet?

[MBNASlayer(1)]

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

[AndyOrch]

So August is the date for their Summary Judgment application hearing...not the normal trial ? (this date would be in your Notice of Allocation along with the courts directions)

[MBNASlayer(1)]

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

[AndyOrch]

It is confusing...think of an application for summary judgment as a totally separate case to the normal process...its a short cut to judgment without trial and supersedes everything else you have recieved.

 

If you don't attend you lose...you need to be there to fight their application.

[MBNASlayer(1)]

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?

[AndyOrch]

Well from their witness statement it is the basis of what the application hinges on..so you have a heads up it will become an issue...and an issue that we regularly discuss here on CAG.

 

Its complicated and we have seen judges allow the argument that Statute of Limitations does run from the cause of action..fair enough (assuming that the DN is issued precisely after missed payments as per their T&Cs of the agreement)

 

But the cause of action is not from when they decide to issue a default notice..the start of the cause of action is and should be the first missed payment..the breach of the agreement.

 

If you were to agree with the judges and creditors who issue default notices several months or even over a year later and in some cases not even issue one at all are effectively controlling when the 6 years limitation period starts from.

 

Put in simple terms.....you miss Oct 2009 payment (you breached the agreement) they issue a default notice after 6 missed payments) (April 2011) therefore they have stretched the Limitation to 6 years and 6 months.

 

Of course a Default Notice has to be served before they are entitled to litigate (the requirement for a Default Notice to be served sec87(1) CCA1974).

 

Complicated...now what was you saying about their unenforceable agreement ?

[MBNASlayer(1)]

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

[AndyOrch]

I suppose it all hinges on whether you attend or not...if not you can only submit a witness statement in response and cross your fingers.If you do attend you would stand a better chance being there in person to present your arguments and fight their application.

 

But if you cant and you wish to avoid a judgment...then you could possibly suggest a settlement by way of a Tomlin Order offering a mutually acceptable payment plan.Restons wont give much by way of reductions but if you wish to testy the water offer 60% and that each party bear their own costs..the Tomlin Order would stay the claim and avoid a judgment...but its how important that you avoid the CCJ that is key to how this is approached.

 

 

Regards

 

Andy

[MBNASlayer(1)]

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

[AndyOrch]

Well offer them 50% and send a copy of that letter

[MBNASlayer(1)]

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

[AndyOrch]

This is Pestons ...they would place a charging order on your grannies home and apply for a forced sale at a blink of an eye

[MBNASlayer(1)]

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

[AndyOrch]

" For example is it possible the DJ will state it is SB and therefore no need to go for a trial? "

 

If he agrees it is SB..... no.... he dismisses the claimants application and dismisses their claim...you win.

[MBNASlayer(1)]

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!

[AndyOrch]

Well for arguments sake if the judge agrees with Pestons and it does start from the issuance of a default notice ask what would happen in the event the creditor never issued one and your last payment was 19 years ago?

 

Would it never become statute barred?

[MBNASlayer(1)]

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

[AndyOrch]

Well done Slayer...sounds like we have last found a competent District Judge that understand the Statute of Limitations.

 

Andy

[Guest]

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.

about time

[MBNASlayer(1)]

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

[AndyOrch]

Your not required to do anything Slayer..unless the order requests you do...its up to the claimant to comply with the orders of the last hearing.

 

Andy