All you can do is remember the law. Make sure you have the relevant sections of the CCA to hand. Ss61, 65 & 127(3) for the unenforcable credit agreement point. [You might also print off the Third Schedule of the 2006 CCA. I think paragraph 11 points out that 127(3) has not been repealed for pre-Oct 2007 agreemets, just in case the other side try that one.] Ss87/88 for the ineffecive DN. Object strongly if MBNA rely on an 'assumed' document.

Should I Google these or are or there links from the site, been looking but cant find.

Hello Mr H!

Quick Links for you:

The Consumer Credit Act 1974

The Consumer Credit Act 2006

On a very basic documentation level, one issue to be well prepared for is the question of your Defence Bundle.

The Empty Desk Trick

Some Courts and some Judges have an amazing ability to deny ever having received any documents before the Hearing.

So, expect the Judge to be sitting there with an evil smile and an empty desk, eyeing up your Court Bundle on the desk in front of you! So, make sure you take extra copies of all key documents, i.e. two extra Court Bundles.

It will be a PITA I know, but the ideal is to take three sets of everything, such as your Defence, plus anything else that you submitted to the Court and/or the opposition that was mentioned in your Defence and/or Disclosure by List.

Then, when the Judge and/or the enemy say, I do not have that, you will be ready to say, no problemo, open up your big bag and say, here's a second copy I prepared just in case the Court System had misplaced the copies I have already submitted.

IOW, whatever you want to have in front of you, make sure you have 2 extra copies of each item, so that you will not be left without the documents you need.

This appears to be a little trick that some Judges like to play, and will expect you to hand them your copy, either deliberately, or because they really are duffers who can't get themselves organised and/or have a useless Court system behind them who cannot get the documents you have already submitted to the Hearing.

In effect, this is a strategy to throw the Litigant in Person off balance. On the day it will look all tidy and genuine, but if you don't take copies, the net effect could be that you are sitting in front of an empty desk, having been deprived of your Court Bundle and needing to defend yourself just from memory.

Assuming that you can find the time and money to reel off 2 extra copies, then the next step is to make sure your own master copy is completely familiar to you. Practice what you may need to say, and try going to the document that you need in your Bundle to back that up. If it takes you 60 seconds when at home, it will feel like 60 minutes in Court...with a Judge tapping his/her finger on the bench and making huffing noises.

So, use Post-It Notes or Tabs, page numbers, anything to help you find what you need fast, so you can quote the part you need. Make sure the copies you make for the enemy have matching page numbers to your own Bundle, but there's no need to make their copies as easy to navigate as your own. Indeed, make theirs harder to navigate, perhaps by making the page numbers very small and feint (see below)...

IOW, if you think you will need to quote s127(3), have a Tab sticking out of your Bundle that says 127(3). So you can flick straight to it, and then tell Judge/Enemy that the document is on Bundle Page 156.

While they are flicking through to find Page 156, you'll have time to read what s127(3) says, so you are ready to read it out to the Court. Perhaps use a Yellow Highlighter to put a box around any key issues on the actual page so you won't need to waste time reading through a page of Text but can zoom straight to the Paragraph you need.

The point being, plan ahead to buy yourself as much time in Court as you can.

Make Notes and Plan your Responses

Next tip is when the enemy are droning on, make detailed notes of what they are saying, and put a big circle and number around anything they say that you do not agree with. Then, when they have finished speaking, if you did not understand anything, make them repeat it, and add extra notes.

Then, you should end up with some notes with big circles all numbered ready to trot out your counter arguments:

(1) The Agreement...I disagree that the Application Form they have produced represents an Agreement, because it is missing the Prescribed Terms, it's just an Application Form, the terms they say were on the back, are clearly not a copy of the back, and would not fit on the back Sir/Madam.

(2) Without the Prescribed Terms, the Court cannot enforce, see s61(1)(a), s65 and s127(3)...

...when Judge asks: "s127(3)?"

...you can whizz straight to that via your little tab, and say, that's on Page 156 Sir/Madam.

...when the Judge says: "but wasn't s127(3) repealed?"

...you can say no, if you look at the bottom of page 189 in relation to Schedule 3 of The Consumer Credit Act 2006, you will see that s127(3) still applies for Agreements made before 06/04/2007. The alleged Agreement is covered by The Consumer Credit Act 1974, so s127(3) remains in force.

If you see what I'm getting at?

The key is to have all the bumf you need, and have it so you can go straight to what you want.

What Did He Say...?

Don't let anything go over your head. If the enemy starts speaking in a language that only they and the Judge seem able to understand, then stop them, and say you do not know what is being said, could the enemy please slow down and explain things in layman's terms, please, as I am a Litigant in Person. Keep saying that if needed, to make sure Judge remembers that you are not a trained Barrister.

Keep making notes when not speaking yourself, and don't be shy about standing up for yourself and demanding a right to respond to any points that you disagree with. Your notes being to help you frame what you want to say when you get that chance.

If you get a decent and fair Judge, then the Hearing will be well conducted and all of the above will work in your favour.

If you get a biased and hostile Judge, then all of the above will help you to keep control and get your key points across, if only for the Tape and a future Appeal.

A Barrister will not be phased by any tricks, and it's likely that a biased Judge won't try so many on when faced with someone trained and experienced with how the Court System works.

However, there's no reason why you can't hack this as a Litigant in Person, but things can get tough if you lose the Judge Lottery and get a duffer Judge or a biased Judge. That's when preparation and planning may save the day.

I hope this helps.

Cheers,

BRW

Some excellent advice in the above.

David

Just to confirm what is invalid about my CCA from MBNA, a copy is attached here.

what is my best way to use this to my advantage?

Bump please.

Could someone also advise me how to go about exposing the default notice, first of all me not having (knowingly) received one, secondly a copy of a dn similar being shown as evidence and then at a later date (4 days before court date) admitting the other was wrong and this new amended one is quite likely to be similar to the one they sent out.

Bump please.

 

Could someone also advise me how to go about exposing the default notice, first of all me not having (knowingly) received one, secondly a copy of a dn similar being shown as evidence and then at a later date (4 days before court date) admitting the other was wrong and this new amended one is quite likely to be similar to the one they sent out.

Hi, i haven't had time to go thro your thread again tonight(sorry), but, i see you are struggling with default notice issues

Just to be clear, only ONE DN can be issued, this is the first one (assuming you didn't remedy it within the prescribed time period)

Any subsequent DN they may produce cannot be valid, as the account no longer exists (because you failed to remedy the breach)

This is an extract from a defence kindly done for me by pt, which i think will help you with this,

31. I note that the claimants particulars of claim fail to even acknowledge service a Default notice as required by section 87(1) of the Consumer Credit Act 1974 before the claimant can even consider terminating the agreement or demanding repayment in full

32. I refer to the date of the letter as being the 29/11/ 2007; it is denied that the Default notice was received on the 29/11/ 2007 thus not allowing the prescribed time frame required by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which states, Regulation 2(2) schedule 2

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

33. Fourteen days were not allowed between service of the default and the time laid out where the alleged breach needed to be remedied. I therefore put the claimant to strict proof as to the date of service of said document

34. In addition to the failure of the default notice to allow the prescribed time frame, I note the Default is also deficient in the following areas

35. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

36. The notice fails to include the following statement in the form as shown

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

37. Also the notice fails to set out the statement as set out below

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

38. The statements referred to in points 36 & 37 are laid out in schedule 2 of Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

39. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security.

40. I note the opening part of section 88(1), which states

88. Contents and effect of default notice.

- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

41. I note that the regulations do not allow any variation in the form of these statements and there fore it is suggested that where the statements are not as laid down in the regulations the default notice is rendered invalid as a consequence

42. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default

43. I suggest that since the claimant has not complied with the requirements to issue a valid default notice, the claimant should not be bringing this action before the court until the procedure set out for the protection of consumers has been followed. It is noted that the Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561) require strict compliance and clearly indicates in the wording that substantial compliance is not enough.

44. I respectfully request the court give consideration to the claimants rights to bring this case while not in compliance with Sections 87,88 & 89 of the Consumer Credit Act 1974 in respect of the default notice and its failure to adhere to Consumer Credit (Enforcement, Default and Termination Notices Regulations 1983 (SI 1983/1561)

Hello Mr H!

Have you got the original Default Notice, i.e. have you found that in your own paperwork?

Remember, that only you have the original, or could have the original, because it has to be sent to you in paper format.

If they can't work out what they sent, then you can use that against them. Throw doubt that they know what they are doing.

Even better if you can find the original, and show their copy is not the same.

Cheers,

BRW

Is there anyway I can change the title so its more appropriate for the current situation or should I start a new thread?.

Your thread is now titled correctly all the way throught:D

I still haven't seen the dn, so no envelope.

Thanks for your help so far it gives me hope.

 

A copy of my DN as supplied by Restons attached.

Ok.. the DN mentioned by Restons in their Defence as MBNA1 is IMHO invalid.

It is dated 8th August 2008 which was a Friday. Weekends dont count so if it was sent by 1st class post then the 2nd WORKING day after mailing would be Tuesday 12th of August. If they cannot prove that it was posted 1st class then 2nd class mailing is assumed and that would have made it Thursday 14th August. Neither one of them would have allowed you the 14 CLEAR days to remedy of which date they gave you as 23rd August 2008.

They say you have breached clause 3 of the agreement. On the T&Cs they have provided you with...what does clause 3 say. Do you have both historic and current T&cs please.

Are they saying a second DN was issued or have they issued a 2nd one. Do you have a Termination notice?

They say they have provided you with statements for the period 2004 until 2008. This is wrong, if they want to prove the balance they are claiming then they should provide you with the full set from 1997 with notices of interest rate applicable at each stage they were altered.

Sorry for all these questions.

Aha, I see I missed the post where you received their witness statement and they realised they had messed up on the Default Notice dates. I imagine that someone else has given Restons a hard time as regards to the dates and they are trying a bit of damage limitation.

They cant just say that it was wrong and that the dates would have been correct on the original. You were under the impression the one they were waving in your face a few posts back WAS a copy of the original.

Just to confirm what is invalid about my CCA from MBNA, a copy is attached here.

 

what is my best way to use this to my advantage?

Other than the handwritten numbers there is nothing that ties these two pieces together. When were those figures written on and why, what do they relate to.. obviously not your account number else you would have erased them before posting.

What does clause 3 say on the 2nd bit please.

Other than the handwritten numbers there is nothing that ties these two pieces together. When were those figures written on and why, what do they relate to.. obviously not your account number else you would have erased them before posting.

 

What does clause 3 say on the 2nd bit please.

I am not sure what it says in clause 3 it is very difficult to read, I can read "within 26 days" with difficulty but the rest is non legible.

Please ask any questions you want again, my head has a lot to take in at the moment.

Can I just plead total confusion over the DN, one minute its a copy of the original, next its like the original and now its nothing like the original but the dates would have been correct if it was the original.

I am not sure what it says in clause 3 it is very difficult to read, I can read "within 26 days" with difficulty but the rest is non legible.

 

Hmm, that could be the payment clause in which case they got the breach correct darn them:(

 

Please ask any questions you want again, my head has a lot to take in at the moment.

 

Yes, I imagine you do.. dont worry it will all fall into place.

 

Can I just plead total confusion over the DN, one minute its a copy of the original, next its like the original and now its nothing like the original but the dates would have been correct if it was the original.

I think we need to get something together as regards the Default Notice because I think as I am sure others do that you could deliver the killer blow with this.

I will give it some more thought over the next few hours and try and make sense of it for you tomorrow.

Hi MR H !subbing! i will be watching this thread with great interest and learning from it!as i am a few steps behing you now as MBNA/Restons takeing me to court!Good luck and i hope you give them grief!

Mr Happy, CMC has given you something to work on in post 131. I am a little out of my depth other than where the dates on the DN are concerned.

Other than the handwritten numbers there is nothing that ties these two pieces together. When were those figures written on and why, what do they relate to.. obviously not your account number else you would have erased them before posting.

 

What does clause 3 say on the 2nd bit please.

If I ask to see the original CCA and they produce it am I then stuffed, If they are printed both sides of the paper.

I am starting to feel a little less confident now.

If a DN is issued when the lenders are in default of a request for the agreement on which it is based, would this render the DN invalid?

If a DN is issued when the lenders are in default of a request for the agreement on which it is based, would this render the DN invalid?

As I understand it yes, they are not supposed to take enforcement action whilst in breach of the CCA 1974 request. There is a sentence on the DN which states, "if the action is taken before the date mentioned "no further enforcement action" will be taken. Which kind of implies that the issuing of the DN is enforcement.

However, as always, please confirm this with someone more knowledgeable.

Thanks CitizenB.

What happens if a DN was not valid, for example dated on the 8th August, and action date is the 23rd of August.

Rsetons sent out a copy of the DN dated the 8th August and action date as the 23rd to the court in their court bundle.

Then Restons sent out a witness statement from MBNA stating that in fact it was an error and the Date would have been from the 8th August to the 24th in the original DN.

Then the Original DN turned up and was dated from the 8th of August to the 23rd of August and sent second class not 1st class as stated in their court bundle.

Would this prove that MBNA and therefore Restons can not be trusted to supply accurate (and legal) information.

Does an invalid DN mean that the court case can not continue, does it mean that there is no further legal manners to deal with my case and that it will be lost in the depths of the MBNA/Restons vaults, or does it mean they need to issue another default and start the process again.

MBNA were under the impression that the dafault date needs to be 16 days after the date of issue to allow for the 2 days postage, or can it be confirmed that the weekends do not count, either way according to MBNA the correct actual date is not valid in their eyes and that is why they ammended it.

As far as i know, its 14 + 2 for 1st class post, and 14 + 5 for second class, weekends/bank hols don't come into it

As far as i know, its 14 + 2 for 1st class post, and 14 + 5 for second class, weekends/bank hols don't come into it

Thanks for that, that means my DN is invalid, is that a win or do I need to find more evidence and dirt to stick to them, I obviously will be looking for more dirt but my head is really pounding.

As far as i know, its 14 + 2 for 1st class post, and 14 + 5 for second class, weekends/bank hols don't come into it

Think they do for delivery CCM...see below...

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

MBNA have a habit of issuing their DN's on a Friday, inevitably 2nd class, which is why they continually mess up the dates!!

Hmmm...the other thing is that you can put them to strict proof they even posted it, the only way they could prove that is by providing the recorded delivery receipt

Hmmm...the other thing is that you can put them to strict proof they even posted it, the only way they could prove that is by providing the recorded delivery receipt

I have found the DN, had to totally destroy my office to find it, it is invalid as per my previous post.