Help please - court case against mbna ** first ever **

[the worm that turned]

Hi TWTT,

 

 

And also OFT

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf

Vint

Thanks

 

They look like a good set of Solicitors to use, perhaps I should speak with them - Nudge, nudge, wink, wink

Edited April 24, 2012 by citizenB

[mystery1]

M1 - are you saying that when a S78 response is made by the creditor they have to provide all the documents in one response i.e. they can't satisfy S78 by providing the documents at a later date, e.g. during proceedings?

 

As far as the creditor in my case is concerned, they provided a document they consider to be the original agreement and terms and conditions from 1999, a new set of terms and conditions to reflect the current position and signed statements.

 

So where do you think they have failed to comply with S78? I must admit that I do not agree that the terms and conditions they have provided as being the original ones are accurate, however that is now down to me to prove.

 

They can't provide a valid response to a s78 request in pieces according to DDJ Bradley in Hfo Capital Limited v Robinson. They can reply at any time but it would have to be a whole and compliant response. Robinson was a case involving the above mentioned solicitors.

 

M1

[the worm that turned]

They can't provide a valid response to a s78 request in pieces according to DDJ Bradley in Hfo Capital Limited v Robinson. They can reply at any time but it would have to be a whole and compliant response. Robinson was a case involving the above mentioned solicitors.

 

M1

 

I can't seem to find this judgement anywhere, do you know where I can find it please?

[the worm that turned]

Thanks M1 and thanks Paul.

 

So there you have it in DDJ Bradly's Judgement signed 6/1/12 at para 14 onwards

 

"I would not accept any suggestions that a section 78/paragraph 7(1) compliant copy of the agreement could be supplied piecemeal over time, in different documents served for different purposes, leaving the debtor to work out when he has received a proper response"..."The terms of section 78(1) are mandatory: a qualifying copy 'shall' be given to the creditor. The terms of section 78(6) are equally clear: the creditor is not entitled to enforce the agreement until such time of it has complied with Section 78(1). In light of the analysis at paragraphs 12 to 14 above this action must fail."

 

My defence, which mentioned that the S78 had not been complied with, was struck out. I was ordered costs and now only have the opportunity to defend on whether or not MBNA signed the credit agreement.

 

Now That's What I Call Justice XVII.

[mystery1]

You can, and should, appeal the striking out of your defence.

 

M1

[the worm that turned]

You can, and should, appeal the striking out of your defence.

 

M1

 

I should have prepared properly and/or used a solicitor in my case!!!

[the worm that turned]

I have found further proof that the terms and conditions MBNA now rely on as being the ones that were present at the time of signing were indeed not provided!

 

If I had known any of this would have been up for scrutiny at a summary judgement hearing I would have better prepared. I thought the summary judgement hearing was for me to show that I could defend the claim at trial (not in the hearing).

[vint1954]

I have also found this.

 

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557)

Quote:

1 Citation, commencement and interpretation

 

(1) These Regulations may be cited as the Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 and shall come into operation on 19th May 1985.

 

(2) In these Regulations--"the Act" means the Consumer Credit Act 1974;"Agreements Regulations" means the Consumer Credit (Agreements) Regulations 1983 and any reference to anyprovision of those Regulations includes in the case of modifying agreements which are, or are treated as, regulatedagreements a reference to Regulation 7 of, and the appropriate paragraph of Schedule 8 to, those Regulations;"cancellable agreement" includes an agreement which is a modifying agreement treated under section 82(5) of the Actas a cancellable agreement; and"lettering" includes figures and symbols.

 

UK Parliament SIs 1980-1989/1983/1551-1600/Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557)/2 Legibility of notices and copy documents and wording of prescribed Forms 2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

(2) The wording of any Form prescribed by these Regulations shall be reproduced in copies of unexecuted or executed agreements or in Notices of Cancellation Rights sent [by an appropriate method] under section 64(1)(b) or (2) of the Act without any alteration or addition, except that -

 

(a) the creditor or owner may enter the name and address of the debtor or hirer in any Cancellation Form prescribed by these Regulations; and

(b) every Form shall be completed in accordance with any footnote.

 

(3) Any such footnote shall not be treated as part of any Form prescribed by these Regulations and may be reproduced in addition to any such Form.

 

(4) Where any such footnote requires any words to be omitted, those words shall be omitted or deleted.

 

Thus, if you cannot read what they have sent, then they have not complied with your Request. If the Card Agreements are still current, then this means they are constrained from taking any Enforcement action because of s78(6) of the Consumer Credit Act 1974.

Edited April 26, 2012 by citizenB
spacing for easier reading

[vint1954]

I have found further proof that the terms and conditions MBNA now rely on as being the ones that were present at the time of signing were indeed not provided!

 

If I had known any of this would have been up for scrutiny at a summary judgement hearing I would have better prepared. I thought the summary judgement hearing was for me to show that I could defend the claim at trial (not in the hearing).

 

What proof was that TWTT.

[vint1954]

Can you not apply via N244 to have the struck out defence reinstated?

 

Completing the form

Question 3

Set out what order you are applying for and why;

e.g. to adjourn the hearing because..., to set aside a

judgment against me because... etc.

 

£40 or £80.

[the worm that turned]

My opinion on this justice system in the UK has now reached an all time low!

 

I still haven't received the Order from the Court following my hearing on 20 April!! I'm pretty sure that there was an order for compliance by this friday coming!! Just called the court and they said "There is a backlog and I should have this done by Friday" to which I replied "I believe there was an order to be complied with by Friday in there", he replied "I'll get it done today and out to you".

 

Unbelievable!

[Chipmeister]

Have you received the order yet??

[the worm that turned]

I have settled with MBNA in their case against me (few options left to me) and dropped my case against them. Not the result I was hoping for. I live to fight another day though.

[Chipmeister]

Harsh, especially after all the work you put into it, you must be disappointed. Still, if it works for you you have done the right thing. All the best, CM