wycombe V Restons (MBNA)

[wycombe]

Firstly my thanks - some great advice and help here. - I posted this on another forum and was advised to start my own thread here.

 

I,m just about to issue a CPR 31.14 request to Restons on a Virgin Credit (MBNA) card debt that I defaulted on due to ill health.

 

Being a total 'debt' virgin so to speak as I have never in my almost 60 years been in a position like this where I am being hounded by the credit industry - so this Forum has been invaluable to me and my eternal gratitude to all the knowlegeable contributers.

 

I have a couple of questions and I ask you to be easy with me if they appear stupid:

 

Firstly I have notified the County Court I intend to defend the action against me - I am presuming I can withdraw this should Reston's produce the original signed agreement?

 

Secondly as I am on Employment and Support Allowance (not working and not likely to in the near future) is legal aid available for cases like mine?

 

Thirdly the Summons mentions a 'contract' dated on or about 08/01/2004 - Again I am presuming this is the document that Reston's will need to produce under the CPR 31.14 request?

 

Thanks for your patience.

 

I had a reply from emandcole - many thanks - link here (if I have got it correct)

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-17.html#post2855662

 

 

A brief update - I have sent by Recorded Delivery to Restons my CPR 31.14 request and the bit of the Summons back to Northampton acknowledging I have received it.

 

Presumably the case will be transferred to my local County Court?

 

What is my next step - wait to see if Reston's respond?

[PGH7447]

Firstly my thanks - some great advice and help here. - I posted this on another forum and was advised to start my own thread here.

 

I,m just about to issue a CPR 31.14 request to Restons on a Virgin Credit (MBNA) card debt that I defaulted on due to ill health.

 

Being a total 'debt' virgin so to speak as I have never in my almost 60 years been in a position like this where I am being hounded by the credit industry - so this Forum has been invaluable to me and my eternal gratitude to all the knowlegeable contributers.

 

I have a couple of questions and I ask you to be easy with me if they appear stupid:

 

Firstly I have notified the County Court I intend to defend the action against me - I am presuming I can withdraw this should Reston's produce the original signed agreement?

 

Secondly as I am on Employment and Support Allowance (not working and not likely to in the near future) is legal aid available for cases like mine? you wont need legal aid for this, you can be a litigant in person

 

Thirdly the Summons mentions a 'contract' dated on or about 08/01/2004 - Again I am presuming this is the document that Reston's will need to produce under the CPR 31.14 request? yes this should be an agreement that they claim you wil have signed, they must produce a copy to you that they will rely on in court, if they dont case over

 

Thanks for your patience.

 

I had a reply from emandcole - many thanks - link here (if I have got it correct)

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-17.html#post2855662

 

 

A brief update - I have sent by Recorded Delivery to Restons my CPR 31.14 request and the bit of the Summons back to Northampton acknowledging I have received it. you can do the court thing on line at MCOL

 

Presumably the case will be transferred to my local County Court? correct

 

What is my next step - wait to see if Reston's respond?

 

sit and wait but keep an eye on the times, I think it is 28 days from acknowldgement that you have to have a defence in, have a good long read in the legal forums for what goes on

[foolishgirl]

Hi Wycombe

 

If you could post up your POC (minus your personal details) it might get you more detailed help.

 

Suggest you also send a SARs request to MBNA, in particular requesting a copy of your agreement. It costs £10.00, do not sign (print or use digital sig)& send Rec Del. Template is here:

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

How long have you given them to respond to your CPR31.14? Don't forget to send it Rec. Del again & disguise the signature (to avoid copying & pasting)

 

If the POC is not fully particularised & they don't respond positively to your CPR31.14 within your set time frame you may want to consider going straight for a strike out.

[cerberusalert]

Moved to Legal Forum

[wycombe]

Apologies for the original threads being in the wrong forums!

 

My thanks for all the responses to date.

 

Probably a stupid question but an old duffer like me is not used to all the acronyms being used here - but here goes:

 

foolishgirl - what is a POC?

 

I have given Restons 7 days to respond to the CPR 31.14

 

The request was sent by Recorded Delivery.

 

The SARs request - does this go to Restons or direct to MBNA (or to Virgin with whom I had the card)?

[emandcole]

Hi Wycombe, good to see you managed ok. As you can see you've already had an interest in your thread and you can count on us doing our collaborative best to help you out and guide you along.

 

POC = Particulars Of Claim

 

This will be a box on the left of the court claim form briefly detailing the claim against you. It should have an amount they are claiming along with references to the agreement they are relying on.

 

Issue the SAR to the original creditor as Restons are unlikely to have much more than a few scraps of paper, they're just the unleashed doggie chasing the bone .

 

Will look in tomorrow and we can get things started.

[wycombe]

My thanks for the acronym explanation and your patience.

 

The POC details are as follows:

 

The claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about 08/01/2004 in the sum of £xxxxx.xx inclusive of interest to the date of this summons at 8% per annum from 01/03/10 to 25/03/10.

 

PARTICULARS a/c no:- xxxxxxxxxxxxxxxx

 

01/03/2010 Default balance xxxxx.xx

Post Refri Cr NIL

 

25/03/2010 Interest xx.xx

Total xxxxx.xx

 

Together with:-

Interest pursuant to s69 County Courts Act 19 at the rate of 297.11 pence per day to the date of Judgement or sooner payment.

 

 

I have blocked out the totals and, of course, account number which I hope is prudent to prevent identification.

[foolishgirl]

Excellent info Wycombe.

 

This is a rubbish POC.

 

1. They obviously haven't got even a copy (never mind the original) of the agreement or it would state a specific date

 

2. What is this 'Post Refri Cr NIL' supposed to mean? And how are you supposed to know?

 

3. They can't claim statutory interest (8%) on a regulated credit agreement - The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case.

 

Whose name has the claim been made in Wycombe - MBNAs or Restons? It tells you at the top of the form under Claimant (although the service address may be Restons)

[wycombe]

Thanks foolishgirl:

 

The claimant is:

 

MBNA Europe Bank Ltd,

Stansfield House,

Chester Business Park,

Chester,

CH4 9QQ

 

Somewhere I think I still have all my statements going back to the year dot. Tomorrow I will see if I can dig these out and find the earliest statement and see if this tallies with their stated contract date.

 

As you correctly summise I have no idea what 'Post Refri Cr NIL' means or refers to!!

 

Thanks for pointing out No. 3 Its great there are so many knowledgeable and helpful people about. A great boon to someone like me who has been caught in this incessant hounding due to ill health. Hardly surprising I suppose that some become suicidal!

[foolishgirl]

OK, that establishes MBNA as the claimant i.e. the debt has not been assigned to anyone.

 

If you can find the statements you can see if any unlawful charges have been applied for late payments, overlimits etc. but don't worry if you can't, you can apply under another CPR request - see below.

 

Now the next steps:

 

1. Did you ever reclaim any unlawful charges at any time?

 

2. Did you ever receive a Default Notice form MBNA? If so, can you post it up as an image please(less your personal details). You can do this using photobucket or similar?

 

3. You need to send off a CPR18 request asap to Restons. This asks for the stuff that you can't refer to in your CPR31.14. Again, do not sign, send Rec. Del. There is no fee. Template here:

 

CPR 18 Request

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION UNDER CPR 18

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of Proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account.

c. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

h. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence & counter claim.

YF

 

[wycombe]

Again many thanks foolishgirl.

 

I have today mailed by Recorded Delivery the CPR 18 request to Restons and the SARs request to MBNA.

 

With the default notice - I am not sure if received or not but I will hunt through everything today to see if I can locate. It may have arrived when I was in hospital. If located I will, of course, provide a link to it here.

 

I have never made any claim against MBNA (Virgin) for unfair charges and the like.

 

Off to have a hunt for the Default notice and my old statements!

[wycombe]

Quick update - I have had a long search for the default notice but have been unable to locate it. It is possible it was thrown out when I was in hospital as my wife was fed up with the incessant phonecalls and threatening letters from my creditors and their agents who paid no heed to her explanation that non payment was due to my hospitalisation. Unfortunately she binned some of their correrspondence.

 

But then equally it may not have been received so I am going to assume non receipt. To date I have not received any information, threats etc by any means of recorded mail so there cannot be any record of receipt by myself of anything stated as being sent - unlike myself who has sent everything Recorded so far!

 

I have found a dusty old box with financial records going back to 1996 so will spend a few hours sorting out the MBNA/Virgin stuff. This should give a rough date of when I took out their credit card.

[foolishgirl]

 

But then equally it may not have been received so I am going to assume non receipt. To date I have not received any information, threats etc by any means of recorded mail so there cannot be any record of receipt by myself of anything stated as being sent

 

Good, assume you didn't receive one ;-) & the Claimant will therefore have to provide proof of posting & supply a copy.

 

I have found a dusty old box with financial records going back to 1996 so will spend a few hours sorting out the MBNA/Virgin stuff. This should give a rough date of when I took out their credit card.

 

More importantly, it should give you proof of any charges applied ;-)

 

FG

[wycombe]

Thanks again for your input foolishgirl - much appreciated!

 

Since going into hospital in June 2009 I have all the Virgin statements - this was when I stopped being able to pay the full amounts. Since that date token payments were made until the statements stopped arriving - which presumably was when the account defaulted. They all have various charges on them - late fees (although my payments were not late - they were just token payments) and of course their exhorbitant interest charges.

 

Will I need to do a breakdown of these charges - when they were levied on the account and amounts?

[foolishgirl]

T They all have various charges on them - late fees (although my payments were not late - they were just token payments) and of course their exhorbitant interest charges.

 

Will I need to do a breakdown of these charges - when they were levied on the account and amounts?

 

Yes, you need to itemise each charge (but not the interest) & the date it was levied. You can then calculate either contractural (that's the interest MBNA charged you) or statutory (8%pa) from that date to today (or the date of your submission of claim) but note you can only demand stat. int. through a court claim. You can use the spread sheet calculator given as part of this link on reclaiming bank charges which works in a similar way to credit cards with the caveat of the current bank charges debate:

The Consumer Forums - Bank charges templates (consumer)

You will also find other useful stuff on these pages.

 

If you submit a charges refund claim with contractural interest as a counterclaim to this claim against you, you may also be able to obtain stat. interest on top of that. You work out the maths - you will be amazed at the amount you are owed! And they have the nerve to issue a claim against you - it makes you want to spit

[wycombe]

Another quick update.

 

I have received back a letter from Restons in response to my CPR 31.14 request.

 

Basically they are telling me that they are not responsible for providing this and have sent back the letter sent plus the payment.

 

Are they correct in what they say? Must I now send the request direct to MBNA?

 

I am wondering if I will get the same response from Reston's to my CPR18 request!

 

Thanks also foolishgirl for the previous information regarding unfair charges.

Edited April 4, 2010 by wycombe
Link provided traceable to poster

[foolishgirl]

What did you actually send Wycombe? - a S78 request for a copy of your agreement with £1.00 fee or a CPR31.14 request with no fee?

If the latter, did you head it CRR31.14 Request or similar & follow the letter template in the thread you mentioned above on CPR31.14?

 

CPR requests don't need a fee & they MUST be responded to by Restons or you can get a court order to make them comply.

 

S78 & SARs requests require a fee & go to the original creditor - MBNA.

 

They have 12+2 days to respond to a S78 & 40 days to respond to a SARs. However if you asked for a copy of your agreement in either/both a CPR request & a SAR request, there is little, if any, value to be gained by asking under S78.

Edited April 1, 2010 by foolishgirl
typo

[wycombe]

Thank again foolishgirl.

 

It look like I sent a S78 request. I did this before I actually found this web site and Forum and assumed (incorrectly it seems) that I had sent a CPR 31.14 request.

 

Obviously the wrong thing!

 

Do I need to send the correct form to Restons still or will my CPR 18 request be enough. A SARS request has already gone to MBNA.

 

Hopefully my little cock up here will not cause any problems! I am rapidly learning as I go along and really appreciate the time and patience of foolishgirl in answering my problems and questions.

Edited April 4, 2010 by wycombe
Link provided traceable to poster

[foolishgirl]

Don't worry about the S78, ignore it.

 

But you need to send a CPR31.14 asap by Rec. Del. Do not sign - print or use dig. signature. Template here:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document(s) mentioned in your Particulars of Claim:

 

1. The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, 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. Further, that any general conditions incorporated in the contract should also be attached.

 

2. A full statement of account - itemising all interest & charges from the commencement of the alleged agreement to date

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the documents' authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

[wycombe]

Thanks foolishgirl.

 

The correct CPR 31.14 will be in the mail tomorrow (I think the main P.O.s are open) - if not the first possible day.

 

Again I greatly appreciate your assistance - without it I will be completely flummoxed and floundering around like a headless chicken. This whole debt thing seems like the sword of Damocles hanging over my head!

[foolishgirl]

This whole debt thing seems like the sword of Damocles hanging over my head!

 

Unfortunately you have a long way to go yet -some cases on here have been ongoing for 12 months or more.

 

The secret is to not to let it worry you too much but to make sure you meet all the deadlines set by the court etc. & use the time in between to really research the issues you will be defending on as you are eventually going to have to stand your corner in court against an experienced solicitor & a DJ who may not even fully comprehend the laws you are using to prove your case. You need to be able to quote clauses off the top of your head & be able to explain clearly why a particular point is relevant to your case & why points the sols. may try to blind a DJ with are not! At the same time you need to be attending to everything that is said in the courtroom. It's not easy & the more you can learn about your subject, the better your ability to cope & go on to win. CAGers can only help with specific queries, they can't do the work for you.

 

Read, read, read every case on here that you think is pertinent to your own, particularly those that involve MBNA & Restons as they tend to follow the same format. Pre-warned is pre-armed.

 

The MBNA forum is here:

MBNA - The Consumer Forums

 

The MBNA successes here:

MBNA Successes - The Consumer Forums

 

BTW, if you have trouble with DCAs calling you incessantly, there are ways to deal with it, just shout...

 

What date is your defence due in?

If Restons haven't replied by 3-4 days before, post up again for help on your defence etc.

Edited April 2, 2010 by foolishgirl
addition

[Meldrew]

... as I am on Employment and Support Allowance (not working and not likely to in the near future) is legal aid available for cases like mine?

As emandcole says, you won't get legal aid to defend a county court claim, but as a LiP your costs should be minimal anyway. Depending on how your case progresses you might have to pay some court fees, but most means-tested benefit recipients and others on lowish income are eligible for full or partial fee remission - see here for details, and apply here. Conversely, if the claimant withdraws, or you win the case, you can claim your LiP costs @ £9.25/hr plus consequential costs, so keep a full record of all time & expenses spent on anything in connection with your case, including reading up etc.

 

A precautionary tip - to maintain anonymity use remote storage like Photobucket or Tinypic to display documents, as creditors are known to look at CAG forums. Your own website shows your address, from which a creditor could easily identify you and figure out your strategy.

 

And I heartily endorse foolishgirl's advice in post #21.

Edited April 4, 2010 by Meldrew
Typos & factual correction

[wycombe]

Quick thanks to both foolishgirl and meldrew for their input and pointers.

 

I will give full attention to both posts tomorrow. At the moment I am unable to concentrate fully due to pain from an operation I had and being befuddled by painkillers!

 

I have removed both the links to my web site - I should have thought about the traceability back to me - amazing how stupid one can be! Thanks Meldrew for pointing that one out.

 

I have spent several days reading through all the various forums dealing with cases where MBNA is the plaintiff and Restons acting on their behalf.

 

Tomorrow I have, hopefully, a free day and will spend some time drafting a preliminary defence statement - if Restons do not reply to my CPA 13.14 it may have to be an embarrassed defence.

 

Anyway until tomorrow!!

[Meldrew]

I have removed both the links to my web site - I should have thought about the traceability back to me - amazing how stupid one can be! Thanks Meldrew for pointing that one out.

You're more than welcome. Sharing thoughts, tips & advice is how we laymen get to learn how to do this stuff (well, I do, anyway!) - and it's far from stupid.

 

I suggest you reinstate the document links on remote storage, so others can see & understand what you've sent & received and thus help you better.

 

PS: So sorry to hear of your health probs - I'm sure grappling with rapacious debt collectors & lawyers is the last thing you need at a time like this. Best wishes & good luck.

Edited April 4, 2010 by Meldrew
PS

[wycombe]

What date is your defence due in?

If Restons haven't replied by 3-4 days before, post up again for help on your defence etc.

 

Summons was issued on 26th March and received 31st March. It was sent by ordinary mail. My ackowledgement was sent by Recorded Delivery 31st March. It looks as if I have until about the 20th April or thereabouts to get a defence statement ready.

 

I will get two rough defence statements drafted - one if Reston's do not respond to my CPR 31.14 and CPR 18 requests where I will file an embarassed defence and go for the Summons to be struck.

 

Secondly a defence statement if Reston's do produce evidence challenging the validity of any contract documents if they do not bear my signature. I strongly suspect they do not have the original contract and I will probably receive some cobbled together garbage. Anyway I am going to work on these rough drafts today so I have something to work from.

 

 

Quote from Meldrew - "As emandcole says, you won't get legal aid to defend a county court claim, but as a LiP your costs should be minimal anyway. Depending on how your case progresses you might have to pay some court fees, but most means-tested benefit recipients and others on lowish income are eligible for full or partial fee remission - see here for details, and apply here. Conversely, if the claimant withdraws, or you win the case, you can claim your LiP costs @ £9.25/hr plus consequential costs, so keep a full record of all time & expenses spent on anything in connection with your case, including reading up etc."

 

Unfortunately I am not eligible for full or partial fee remission as my benefit is contribution based not income based. Although this benefit is my only income (£64.23 a week) this is all I am entitled to. I have had real problems paying prescription charges and the like. My spouse works and she is currently paying the majority of the bills. mortgage etc. My illness has caused severe financial problems so we have concentrated on the priority bills and made token payments on everything unsecured. Amazing really how quickly things can go belly up when circumstances conspire against you!

 

Of course from now on I will use Photobucket to post copies of any documents received. The previous links were unimportant as they referred to an S78 request sent to Reston's (which I erroneously thought was my CPR 31.14 request) and the letter from Reston's returning it. The correct CPT 31.14 request has been sent by Recorded Delivery.

 

So now I have to wait and see what response I get from Reston's, if any, before I can decide what tack to take with them. So I will prepare my two rough preliminary drafts and spend more time reading up on the various case files here.

 

Thanks again to foolishgirl and meldrew for their comments and observations - as always greatly appreciated.