County Court Claim received MBNA\Restons

[LB145]

If they are

MBNASupposedTCs2001Page1.jpg picture by Diamond40_photo - Photobucket

and

MBNASupposedlyTCs2001Page2.jpg picture by Diamond40_photo - Photobucket

 

Then they are quite clearly NOT from the back of the application form.

 

Wow - didn't realie you can look at all the others throught the link - lucky no photos on there ()

 

Yes those were sent and were also in my SAR bundle - there was sme typed up ones as well that went onto several pages - although in the solicitors response to the defence they stated that they were not sent the T&C's sent to me - I made this clear that they were - when it was my time to speak as I was told not to interrupt or make comment whilst solictor is talking and to wait until he had finsihed - I was told to respond to the four items in their skeleton case, i also went to go through the points on my WS and was told by the Judge to respond to the four items only, the Judge kept on about s78 and I consistently stated that the CAREy V HSBC was irrelevant as that revolved around the an s78 request for information and not where documents were requested to defend a case in court etc and not to cloud the issue that the claimant needed to produce the original document in court. Even in his summing up I made a statement "so the claimant do not have to produce the original document in court and verify that it contains all the relevant prescribed terms with a signature box to be signed by the claimant". Judge said no Reconstruction is adequate to satisfy regulation (whatever). I even questioned the unfair relationship with Thorius V MBNA with regard to PPI charges, I gave them both copies of the cases - solicitor commented that he is aware of the case - but the Judge felt that my reduction of £300 was reasonable, he asked me to check the sums and was I happy that that covered the interest and gave me a calculator. I told him I did not know how to work it out at 34.9% or 16.9% for how ever many years. the feeling of the Judge was that he had saved me alot of money by not going to trial - £10k - £20k not much difference whenyou haven't got it.

[gh2008]

Ok, one of the problems IMHO is that you were arguing against your own case.

 

If you were arguing S78(4) then yes Carey DOES apply and because of Carey they should not have got a judgement.

 

Yes, a reconstruction would be ok if it were a true copy - but this reconstruction clearly isn't.

The document supplied is neither a reconstruction of the back nor is it a reconstruction of the T&Cs referred to on the front as the document's heading is different.

 

BUT what are you going to do with this info .......

 

IMHO (and this is not a dig at you) - you will not be able to successfully launch an appeal against this UNLESS you *really* get to grips with it.

So that leaves you with only 2 real options

 

1. appeal with help (either from experienced Caggers or professional help)

 

2. pay up with affordable payments

 

IME no.2, as a minimum, will involve applying for a 'stay of execution' and then making a N245 IIRC app to vary the terms of the SJ. This will include I&E etc

 

 

One other point I notice in the POC that they were claiming interest - were they awarded this? if so was it contractual or S69 statutory interest?

[LB145]

Front page left hand corner box - "Before you sign this Agreement you should read conditon 11 in the T&C's provided"

 

On Back in Financial & Related Conditions"

Small section under the "Loss of Card Box" -

 

"Set out in paragraphs 1-15 below ???? some of the provisions contained in Conditions 1 & 2 of the MBNA Credit Card Terms & Conditions. The other conditions referred to in these paragraphs and the applicable definitions can be found in those Terms & Conditions"

[LB145]

Interest amount in skeleton case is £379 plus costs (if that helps)

[gh2008]

so, there is no reference to the back from the front??? if so then the back is irrelevant.

 

So you are now looking for a document headed

"MBNA Credit Card Terms & Conditions"

 

ooopps there isn't one - check the heading of the document sworn to be the T&Cs ......

[gh2008]

Interest amount in skeleton case is £379 plus costs (if that helps)

 

need to know what interest ... was it @ 8% ?? If so probably stat interest which they are not allowed on a CCA claim.

 

not that it makes a massive difference to £10k but again it is another error in Law (well I think it is 'in Law' might not be though just a procedural error maybe)

 

To win an appeal there needs to be 'error in Law' or 'misdirection' I think

[LB145]

I really would liek to go with legal help but again that is further cost implications and this has scared my OH - as to where we are going to end up - thought we were already there!!!

 

Payment wise - how do I go about that and what do they work on as to how much you pay? I know this is generalising and everycase is different. The solicitor did say to me "nobody has ever lost their house over a credit card debt"

[LB145]

My inlaws (thankfully lovely) are coming round this afternoon to discuss our situation (how bl**dy hard that was for OH to go and tell them - were in the ***) and the prospect of getting a mortgage on their home - although can someone over 65 yrs do this (how crap do I feel)

[LB145]

OMG - I have got to go start cooking dinner!!!! the least I can do is feed them.

[wycombe]

Hi LB,

 

Just got home to read your news fully. You must have been devastated to have such a prejudiced judge. The lottery strikes again!

 

You seem to be getting sound help and advice. Whatever your decisions are you will get help on here. Hopefully it will not be too difficult for you to decide what to do.

[gh2008]

As the back of the document is not referenced by the front (and there was no other reason for you to look at the back)

 

The T&Cs are clearly in a separate document then I cannot see how the DJ decided that there was a single document that contained your signature and the prescribed terms .......

 

IMHO it may be worthwhile getting further advice and getting a copy of the full judgement.

[blueotter]

agree with GH ,this certainly sounds like an error in law to me and the judge has misdirected.

I'd seek the advice of a solicitor specialising in this area and get them to represent you,should be a shoo in for appeal.

[LB145]

Wycombe - thanks for looking in- I hope your relative is feeling better and you managed to enjoy the weekend.

 

GH2008 & BlueOtter - I will look for a solicitor tomorrow and see what comes of it - any recommendations for the S of the capital!

 

have I done too much damage by not having a solicitor in the first place

[pumpytums]

Hi LB,

something has been nagging at the back of my mind. Your DN was this your original copy or a copy sent from MBN@? Even now MBN@ very rarely give the 14 days and yours gives nearly a month which is unheard for them. Did you ever see the comms log?

 

Pumpytums

[LB145]

Hi LB,

something has been nagging at the back of my mind. Your DN was this your original copy or a copy sent from MBN@? Even now MBN@ very rarely give the 14 days and yours gives nearly a month which is unheard for them. Did you ever see the comms log?

 

Pumpytums

 

The NOD is the original in my file - dated 03 Nov 09 and date to remedy 03 Dec 2009 and Restons first letter of contact was dated 3rd December 09 -

 

My comms log only goes to July 09 - from my first SAR - in the CPR 31.14/5 (thingy - I'm muddled now) they sent transaction history, copies of statements but no comms log

 

My OH MBNA are refusing to send another SAR despite £10 payment being sent - this has been confirmed in letter from Expert? - complaint into ICO but they are still dealing with Apri complaints.

[jason_mnm]

Sorry to hear...as far as I know one of the site team member is the best professional lawyer for credit card debt you can have..

[blueotter]

LB,

This is a link to a thread and the ramifications of requesting a cca through an s78. It's 100 pages long but from what i can tell the answer to your problems is contained therein.

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

It looks like the solicitor for the opposition has based the vast majority of his case around your s78 request and effectively tied the judge up in knots to say mbna complied with it therefore the cca is properly executed.

 

I'm sure there'll be some more experienced hands along to confirm and help out but you need to seriously consider getting a solicitor here should you wish to appeal.I'd send them an email outlining your case or a link to this thread and get their opinion on it.

[LB145]

Thx Blueotter - taking a look at thread now

[gh2008]

It's certainly worth PMing PT and see if he can advise your best course of action ....

[pumpytums]

I don't understand why in LB's case the opposition was allowed to give LB a copy of a skeleton argument just before they walked into court. I thought these should be served a minimum of 7 days before trial?

 

Should you refuse any document from the opposition until you enter the court room?

 

Just seems a deliberate act to blow a LIP out of the water.

 

Also how the hell did they rack up £3k that's 20 hours work just to get to a SJ. That's pushing it for a 30 min hearing.

 

Pumpytums

[pumpytums]

This may or may not be important they served a witness statement on you 1 day before trial yet:

 

Evidence for the purposes of a summary judgment hearing

24.5

(1)If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must –

 

(a)file the written evidence; and

 

(b)serve copies on every other party to the application,

 

at least 7 days before the summary judgment hearing.

 

(2)If the applicant wishes to rely on written evidence in reply, he must –

 

(a)file the written evidence; and

 

(b)serve a copy on the respondent,

 

at least 3 days before the summary judgment hearing.

(3)Where a summary judgment hearing is fixed by the court of its own initiative –

 

(a)any party who wishes to rely on written evidence at the hearing must –

 

(i)file the written evidence; and

 

(ii)unless the court orders otherwise, serve copies on every other party to the proceedings,

 

at least 7 days before the date of the hearing;

 

(b)any party who wishes to rely on written evidence at the hearing in reply to any other party’s written evidence must –

 

(i)file the written evidence in reply; and

 

(ii)unless the court orders otherwise serve copies on every other party to the proceedings,

 

at least 3 days before the date of the hearing.

 

(4)This rule does not require written evidence –

 

(a)to be filed if it has already been filed; or

 

(b)to be served on a party on whom it has already been served.

 

Not sure if this is right just a thought

 

Pumpytums

[paulwlton]

I don't understand why in LB's case the opposition was allowed to give LB a copy of a skeleton argument just before they walked into court. I thought these should be served a minimum of 7 days before trial?

 

Should you refuse any document from the opposition until you enter the court room?

 

Just seems a deliberate act to blow a LIP out of the water.

 

Also how the hell did they rack up £3k that's 20 hours work just to get to a SJ. That's pushing it for a 30 min hearing.

 

Pumpytums

 

Witness statements (the facts your relying on under a statement of truth) should be exchanged before the hearing, I don't think this applies to a skelly unless the court orders otherwise.

[blueotter]

I would have thought the skelton argument was part of the witness statement,its written documentation that should have been handed over prior to the court date othewise why bother handing it over at all.

This is all sounding like a right old carve up,i'd definitely be looking to appeal here,nothing more to lose and eveything to gain.

 

Lb145,what exactly were the 4 points they based their argument on ?

Edited July 19, 2010 by blueotter
grammar

[gh2008]

I don't understand why in LB's case the opposition was allowed to give LB a copy of a skeleton argument just before they walked into court. I thought these should be served a minimum of 7 days before trial?

 

Should you refuse any document from the opposition until you enter the court room?

 

Just seems a deliberate act to blow a LIP out of the water.

 

Also how the hell did they rack up £3k that's 20 hours work just to get to a SJ. That's pushing it for a 30 min hearing.

 

Pumpytums

 

£3k is about right for 1st hearing £10k if it goes to trial on Fast Track

 

LB could have refused the doc and then they would have had a short break for LB to review the doc. LB could have asked for an adjournment although the costs could then be £5k.

 

If there were literally 4 points and those were simple points then you'd struggle to get away with an adjournment IMHO.

 

The claimants will always use the 'we're really busy' excuse and be allowed - at the end of teh day it will be allowed anyway with an adjournment if required so in order to minimise costs they tend to allow it on teh day etc etc

[gh2008]

an example of the above http://www.consumeractiongroup.co.uk/forum/legal-issues/241742-hushpuppy-round-1-hushpuppy-14.html#post3034235