MBNA/Restons CCJ (forgot to file defence) now have CO too, - want to set aside - CCA is pants!!

[DonKichote]

RIGHT. The creditor allegedly supplied me with the agreement, original T&C and current T&C. The T&C I uploaded so far I thought to be the original T&C, as I was influenced by the font being the same as in the signed, hardly legible, agreement (first post). On closer inspection, the interest rate in them is current 29.9% rather than original 15.9% . I am now uploading a clearly reconstituted document which is intended to look like the original T&C combined with agreement, albeit it is unsigned.

http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC1_zpsed86cdf7.jpg

http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC2_zps518577a1.jpg

http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC3_zps9cf9fdf8.jpg

http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC4_zpsb98fc6bb.jpg

http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC5_zps8d395cae.jpg

 

If we consider these as the original agreement and original T&C, perhaps together with the single side signed agreement (first post), how does it look in view of s127(3) unenforceability?

[DonkeyB]

DonkeyB, you are very quiet

 

Eh? Was I involved?

 

For someone as apparently intelligent as you, you dropped a massive clanger by not defending the claim, and not opposing the CO. What the heck happened?

 

You have diddly squat chance of overturning this with a set aside, based on what you have told us so far. Sorry to be so blunt, but you ignored it. The rest is, at present, academic – unless you have a cogent reasoning for failing to defend, and applying after so much time, then I think you’re a bit stuffed.

[Alloyz1]

RIGHT. The creditor allegedly supplied me with the agreement, original T&C and current T&C. The T&C I uploaded so far I thought to be the original T&C, as I was influenced by the font being the same as in the signed, hardly legible, agreement (first post). On closer inspection, the interest rate in them is current 29.9% rather than original 15.9% . I am now uploading a clearly reconstituted document which is intended to look like the original T&C combined with agreement, albeit it is unsigned.

http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC1_zpsed86cdf7.jpg

http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC2_zps518577a1.jpg

http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC3_zps9cf9fdf8.jpg

http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC4_zpsb98fc6bb.jpg

http://i1365.photobucket.com/albums/r756/isoceles1/mbna%20mast/TC5_zps8d395cae.jpg

 

If we consider these as the original agreement and original T&C, perhaps together with the single side signed agreement (first post), how does it look in view of s127(3) unenforceability?

 

Sorry, I have no idea what any of that means!

 

As a start you need know which are original and which are current.

 

Then look for divergence between the original and agreement.

 

I can't because I can't read it.

 

You say you can 'just' read it... Which means its legible, all be it 'just'. Kind of sank your own defence!

 

Donkey is bang on (and experienced), setting aside would be hard enough after no defence and the time passed; but with your proposed defence... Even harder.

 

I am no expert!! By a long way... So maybe someone else will comment differently.

[DonkeyB]

Is there no way you could enter into a repayment plan? We still know nothing of the circumstances around this.

 

Who was the claimant? No doubt MBNA sold the account.

 

What’s the history surrounding this? Why did you not defend any of this? How much is the judgment for?

 

Do you have the original claim and the PoC?

 

When did the claimant apply to force a sale of your home? Do you have equity? Do you have children?

 

There’s so much we don’t know. Bashing away at technicalities isn’t helping without the basic fundamental info.

 

Please supply the back story (why the debt arose, whether you received notices of assignment, defaults etc) and details of the original claim.

 

You said there wasn’t another thread relating to this – there is.

 

It’s here.

 

Is the account still with MBNA? Are Restons still involved?

[citizenB]

You said there wasn’t another thread relating to this – there is.

 

It’s here.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?243498-MBNA-Restons-claim&p=2792429#post2792429

 

It would have made things a lot easier had we known about this earlier ? I have merged both threads in order to assist those who might be advising.

[DonkeyB]

Thanks CB – thought I’d gone mad when my link diverted to ... here!

[DonkeyB]

 

So, for the PoC, etc, go back to the start of this thread. 

[DonKichote]

Please correct me if I am wrong, but I think a set aside would be the easy bit, here is why:

The default judgement says "You have not replied to the claim form..."

Well, I did. I filed an acknowledgement of service within a week and can prove it.

It follows that under CPR 13 the Court MUST set aside the default judgement as it breaches CPR 12.

Further, according to National Debtline:

"When must the court set aside the judgment?The court must set aside the default judgment if you:

 

• have paid the whole amount owed (including any interest and costs) before the date the creditor entered judgment;
• sent back the acknowledgment of service form within the time limit;
• put in a defence within the time limit; or
• sent in the reply form within the time limit asking for more time to pay.

The court must set aside the judgment in these circumstances, even if you do not have a defence.

There is no time limit for making an application on these grounds."

So will anyone help me now with my proposed s127 defence please? CitizenB?

 

bump

[DonkeyB]

Suggest you look up the Civil Procedure Rules rather than rely on National Debtline. One is statute, the other is not.

 

Read here:

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

 

I can’t see anything there that says they failed – the relevant provision was not breached. I would dare to say that National Debtline is mistaken.

 

 

For reference, here’s the National Debtline page with their advice.

 

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=12_how_to_set_aside_a_judgment_in_the_county_court

[DonKichote]

Thank you DonkeyB,

It looks like you may be right, although I did get the reference to National Debtline directly off CAG, and copied the quote from the ND reference page you gave. But although it may not be mandatory for the Court to grant a set aside, I would like to think there is a good chance if it is discretionary, and pursue my quest for firming up my s127 defence.

[DonkeyB]

But you will still need a very good reason for leaving the set aside for so long.