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StayingCalm

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  1. Hi all, Just got home now and a letter waiting for me from Restons!!!! Give me a few minutes and I will post details.
  2. Hi x20 Thanks for the info on the effective date of service by post. Please could you advise if the new CPR 6 applies retrospectively? The following letter was received and signed for by Restons on 25th September, and as yet I have not received a reply. The Case Management Conference is set for the 6th November. What would you advise as the best course of action now?
  3. While we are on Default Notices, a few more questions. Days for serving....Are the following correct? If dated and posted 1st class on a Thursday - Count from Saturday. If dated and posted 1st class on a Friday - Count from Monday. If dated and posted 1st class on a Saturday - Count from Tuesday. If not posted on the same day as dated - count from the day posted if this is visible from the envelope. What if it is posted 2nd class? As the DN states 'BEFORE THE DATE SHOWN' does this mean that the date shown should allow 15 days from serving, otherwise if it was 14 days, the 'BEFORE' would result in less than 14 days? However, the information higher up on a DN seems to vary between 'before' 'on' or 'by' a certain date. Does this make any difference? Regards sc
  4. Hi x20 If this is the case do 'the words' as above have to be in capitals, or would bold type be sufficient? sc
  5. Hi atwozee Not sure about the 'DO' being underlined, but the main problem with the DN is it not allowing 14 days after it was served (serving is deemed on the 2nd day) sc
  6. Thanks snooper. Yes, Restons rely on the ignorance of most of their victims :(, but they have meet their match here with the fantastic help from CAG. I'm now waiting for a reply from them to that superb letter that x20 put together for me!! :grin:
  7. I have now received the following reply from Restons. WITHOUT PREJUDICE SAVE AS TO COSTS Dear Sir Re: MBNA v ………… Overdue Credit Card …………. We refer to the above matter and in particular to your letter to Mr …… dated 10th Sept 2008 At various points in your Defence and Witness Statement you allege the Bank is now obliged to provide an exact copy of the consumer credit agreement which you signed. There is no legal duty to provide this. The legislation gives a specific meaning to the word ‘copy’. Section 180 of the Consumer Credit Act 1974 expressly provided Parliament with the power to prescribe the meaning of the word ‘copy’. This is done by Regulation 3 (2) of The Consumer Credit Act – (Cancellation Notices and Copies of Documents) 1983 – which makes it clear that any copy agreement provided by the creditor can omit ‘any signature box, signature, or date of signature …..’ . We can forward you a copy of the regulation if this assists. To repeat the point, the Bank is under no obligation to provide a copy of the agreement containing signatures of both parties. Enclosed to the bank’s witness statement is a proforma of the Agreement which you would have signed. This contained all the prescribed terms which the Consumer Credit Act and Regulations made under it, require for this specific type of account. We note your comments about the default Notice and your reference to the case of ‘Swain v Woodchester Leasing’. You will be aware from that case the creditor was able to recover the arrears quoted in the Default Notice together with interest – if not the full amount. This is because there is no requirement on a creditor to serve a Default Notice if it simply wants to claim arrears. The requirement arises only if the creditor wants to recover the full outstanding balance under the Agreement. This means that your comments about the Default Notice do not provide a Defence to the Bank’s claim for the arrears of £xxxx together with contractual interest. As neither the witness statement nor the defence deny the existence of the account or spending on it, then it is open to our Client to simply serve a new Default Notice or commence a new set of proceedings in order to claim the full amount. In light of the fact that there is no requirement on our Client to provide an exact copy of what was signed, we fail to see how you can continue to defend this claim. The purpose of this letter is to enquire in light of the above you are prepared to reach an amicable settlement to this matter. Our client will consider any sensible offer of payment but will not accept merely a nominal offer. This letter should not be regarded as an acknowledgement of any weakness in the Bank’s case but an attempt to try and resolve matters. They seem to forget they do not have a signed agreement for Court !!! sc
  8. Hi Fred I see you made a section 78 cca request, however i can not see any reference whatsoever to the CCA 1974 on the above agreement. Should it not say 'Credit Agreement Regulated by the Consumer Credit Act 1974' Regards sc
  9. Throughout this dispute I have addressed my letters to Abbey Credit Card, and most replies have been on Abbey headed paper, (in Abbey envelopes) and their address as: Abbey Credit Card, PO Box 30, Chester Business Park, Chester, CH4 9FD. However the small print at the bottom states: The Abbey credit card is issued by MBNA Europe Bank Limited. Statements received are headed Abbey, but payments to be made to MBNA. As you say the Default Notice was headed MBNA. Other items received: Our Commitment to You MBNA Europe Bank Limited, the issuer of your Abbey Credit Card, is a company of people commited to providing the finest products backed by consistently top quality service (haha !!!).............................. ....our address is: Customer Service Abbey Credit Card Stansfield House Chester Business Park Chester CH4 9QQ MBNA Europe Bank Limited Registered Office: Stansfield House Chester Business Park, Chester CH4 9QQ Registered in England number 2783251 and Contact US Occasionally, we may not live up to our promises to provide you with a high quality sevice. It is our commitment to you as a customer that if you have a complaint , it will be dealt with fairly and promptly. (!!!!!!!!!!!) ...................................... ........ you may contact us at the following address: Customer Advocate Office MBNA Europe Bank Limited Chester Business Park Wrexham Road Chester CH4 9FB I also have a MBNA credit card and some correspondance received refers to two account numbers (one the abbey account no., and the other the MBNA account no.), and this was on MBNA headed paper. sc
  10. Thanks for your interesting comments x20. On their N265 disclosure Restons stated: This account was opened on 27.3.1998 at Abbey National and was acquired by the Claimant in March 2001. The Claimant is unable to access documents issued prior to March 2001 (including the original Credit Agreement dated 27.3.1998) I have read on other threads on this site that MBNA do not have agreement details on any of these original Abbey accounts (and from the statement above, possibly no documents whatsoever). It would appear to me that only brief account details were transferred electronically from Abbey to MBNA. I received from Restons yesterday the following: 1. Copy of Witness Statement 2. Copy of Default Notice 3. Copies of statements from Dec 04 to March 08 4. Copies of blank Credit Agreement, and blank Credit Card Application Form. I will do as you suggest and chase a reply to the previous letter if one does not arrive soon. sc
  11. Yes, I can't wait for x20 comments. They admit there is no signed agreement, and use a defective Default Notice as an exhibit. Doesn't seem to me there's anything to strengthen their position. I've got problems with a few cards, and this one is the weakest case against me, and yet the only one to get to court so far, (touch wood). Thanks for everyones support. sc
  12. Hi all GM what is kk?? Well this is the statement I received WITNESS STATEMENT I xxxxx xxxxx of MBNA Bank Ltd of address Will say as follows 1. I am employed by the claimant as a litigation specialist and I am duly authorised to make this statement on behalf of the claimant which is made in accordance with the requirements of the Order dated 5ht August 2008. 2. The claim is for the sum of £11895.23 together with interest and arises from the outstanding balance due under an Abbey Rewards Card set up in March 1998. This card was acquired by MBNA. The account is in the name of the Defendant and he is solely liable although there is another authorised user on the card. 3. I have seen the defence filed by the defendant. It comprises numerous pages (and includes various exhibits). It quotes numerous sections from the CCAct legislation and regulations made under it. It also includes quotations from various law authorities. In my submission the document does not amount to a clear succinct defence to this claim. However, I cannot see any statement made by Mr SC in the defence in which he denies holding the credit card facility, denies using the card nor that there is an outstanding balance under it. 4. In view of the outstanding balance on this account and the fact that the claimants correspondence to the defendant had not resulted in a satisfactory agreed repayment schedule, on 25 March 2008 a Default Notice was issued which required a payment of £1475.80 representing the arrears on the account by 6 April 2008. The defendant failed to make this payment. A copy of the default notice is attached to this statement and marked xx1. 5. In line with the standard procedure of the claimant the default notice was placed in the first class post on the date it was issued ie 25 March 2008. I note from the defence that Mr SC accepts receiving the Default notice on the following day, ie 26 March 2008. I confirm that the defendant has failed to make the payment of the arrears of £1478.80. 6. Proceedings were issued by the claimant’s solicitors in April 2008 claiming a balance of £11895.23. Attached to this statement and marked xx2 are statements of account from December 2004 to March 2008 which demonstrates how the outstanding balance of £11895.23 has been calculated. 7. I note that at paragraphs 2 & 3 of the defence Mr SC claims the POC did not disclose a cause of action and were vague. The proceedings were issued through the County Court Bulk Centre. This method only allows the claimant to insert brief details of the claim. It is a common procedure adopted by banks and other financial institutions. There can be no doubt that MR SC was fully aware of the banks claim in this action in view of the correspondence sent beforehand by the bank. Also the contents and length of his defence do not suggest that he has been in any way prejudiced by the fact that the proceedings were issued through the county court bulk centre. 8. I note that at various points in the defence Mr SC appears to suggest that the bank is under an obligation to provide an exact copy of the credit agreement and indeed at paragraph 44 requests the court for an order that the bank ‘produce the original signed agreement’. I am not able to provide a copy of the original signed agreement. I do not accept that under the terms of the CCA legislation or the regulations made under it the bank has to provide a copy of the original signed agreement ie a copy bearing the signatures of both parties. Attached to this Witness statement at xx3 is a ‘pro-forma’ of the credit agreement which would have been in the form signed by the defendant. The footer to the document ends with ‘Nov 97’. As explained earlier the particular facility agreed with Mr SC was set up in March 1998. The bank does not accept that it is in breach of any part of the CCA or regulations made under it and therefore the agreement contained at xx3 complies with all requisite terms. 9. At paragraph 20 of the defence Mr SC alleges that the claimant ‘pursued an active campaign of harassment against me…’. No specific details of the claimants conduct are given nor as a matter of law how they amount to harassment. 10. At paragraphs 22 to 29 of the defence Mr SC makes various comments about the maintenance of records by the claimant. I wish to confirm to the court that the claimant does comply with all its statutory/legal obligations. As I have explained earlier in this witness statement there is no legal obligation on the claimant to maintain an exact copy of the signed credit agreement. The nature of the copy agreement which the bank has to provide upon receipt of an appropriate request is specifically defined by the CCA 1974 and the regulations made under it. I believe that the facts………………………….. Doesn't seem a very strong case to me !!!!! sc
  13. Restons did not discontinue we have exchanged must go out now will post details later
  14. x20 Thanks so much!!! Please could you advise if I have to get a copy to the court as well by 4pm?
  15. Well our post often does not arrive until midday or even later sometimes, so I phoned the local sorting office at 6am and arranged for them to keep it there after sorting so that I could pick it up. Just got back now and Nothing from Restons!! As they have now got my e.mail address I suppose they can still reply by e.mail and will probably keep me waiting until the midday deadline.
  16. Hi citizenB Yes I remember seeing that on pt2537 posts aswell. Not quite sure what the implications are though. I think x20 is working on my statement now so will wait and see what he comes up with. Just remembered there is approx £500 of charges include in the default balance. Getting nervous now wondering if Restons will Discontinue!! sc
  17. Right here it is. I hope it is not too bad. I, (StayingCalm) OF (ADDRESS) STATE AS FOLLOWS 1 I am the Defendant. 2 In the course of this witness statement I shall refer to the existence of documents, true copies of which are exhibited hereto at exhibit (witness initials 1) 3 On 25th April 2008 the Claimant commenced this case in which the Claimant seeks to enforce certain provisions of an agreement bypayment of the overdue balance due from the Defendant under a contract dated on or about 27/03/1998 in the sum of 11921.30 inclusive of interest to the date of this summons at 8% per annum from 14/04/08 to 24/04/08 PARTICULARS a/c no xxxxxxxxxxxxxxxx DATE ITEM VALUE 14/04/2008 Default Balance 11895.23 Post Refrl Cr NIL 24/04/2008 Interest 26.07 TOTAL:- 11921.30 Together with;- Interest pursuant to s69 County Courts Act 19 at the rate of 260.72 pence per day to the date of Judgment or sooner payment. Court fee 190.00 Solicitor’s costs 100.00 The agreement is an agreement regulated by The Consumer Credit Act 1974 (The Act). 4 On 26th February 2008 I delivered to the Claimant a request made pursuant to the provisions of section 78(1) of The Act. A copy of my request is now shown and produced at page (page number) of my exhibit (witness initials 1). 5 On 26th February 2008 I also delivered to the Claimant a request for all the data relating to my account made pursuant to Section 7 of the Data Protection Act 1998. A copy of my request is now shown and produced at page (page number) of my exhibit (witness initials 1). 6 On 17th March 2008 I wrote to the Claimant setting out that they had failed to comply with my statutory request made pursuant to The Act 1974 (Exhibit xxx) 7 On 19th March 2008 the Claimant replied to my subject access request made under the Data Protection Act 1998 stating that they did not retain the signed credit agreement for my account, they did supply some information but not sufficient amounts to be considered compliance with the S7 Data Subject Access Request. (Exhibit xxx) 8 On the 26th March 2008 I received a document purporting to be a default notice, it is averred that the document is not compliant with The Act or Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and as a result has no effect in law. (Exhibit xxxx) 9 On or about 28 Mar 2008 I received a letter dated 26/03/2008 in reply to my complaint letter (referred to in point 6) and full response was promised by 15 April, but no mention of CCA request. (Exhibit xxxx) 10 On the 15 April 2008 I received a Letter Before Action from Reston’s Solicitors which I found rather bizarre since the account was subject to a dispute and awaiting a response as promised in point 9. (Exhibit xxxx) 11 I did not reply to the letter in point 10 because after the Claimant had stated there was no agreement, I thought it was just another idle threat, of which I had received so many. 12 On the 19 April 2008 I received further letter re my complaint, full response was promised by 14 May 2008. (Exhibit xxxx) 13 On the 25th April 2008 I received this claim, which was deeply upsetting as the claimant or its agents had totally ignored my correspondence and forged ahead with litigation which it is averred was unnecessary, and furthermore not permitted as the claimant has failed to follow statutory procedure laid out in The Act and the regulations made under it and furthermore 14 It must be noted that to date, the claimant has not supplied a copy of the credit agreement as requested in point 8. The Act clearly sets out the consequences of non compliance in particular section 78(6) states (6) If the creditor under an agreement fails to comply with subsection (1)- (a) he is not entitled, while the default continues, to enforce the agreement 15 Furthermore the claimant ignored my dispute and pursued an active campaign of harassment against me, they contacted or tried to contact me by telephone on a great number of occasions over a period of several months, usually several times a day and also continued to contact me in writing. I attach a sample of three of these letters (Exhibits: xxx,xxx,xxx) This is in direct contravention of the Office of Fair Trading's Guidelines on debt collection 16 At trial I will assert by reference to the documents and by submissions to the court as to fact and law, that the documents relied upon by the Claimant are inadequate for the purpose of demonstrating that at the date of the commencement of this case the Claimant was not entitled to any of the relief sought. I BELIEVE THAT THE CONTENTS OF THIS STATEMENT ARE TRUE. (Signed) (Dated) I have not mentioned any of what they disclosed in their disclosure or the contents of the PM I sent to you on 5th September
  18. Restons have replied agreeing to exchange statements by e.mail tomorrow and posting numerous exhibts by 1st class post also tomorrrow. They will reply to my letter dated 10th Sept. shortly. I am working on my statement and would appreciate some assistance sc
  19. Thanks x20 I have sent an e.mail to Restons and awaiting a reply. I am starting on my statement and will post later. sc
  20. Thanks Foxy, Together we are all so much stronger. Sent the letter suggested by x20 yesterday by SD to Restons, so they should be receiving anytime now. However, what I am concerned about is if Restons don't respond by midday tomorrow, as witness statements are due to be exchanged by 4pm also tomorrow. x20, I would be very grateful for some guidance on how to proceed in these circumstances. Many thanks sc
  21. Thanks x20, that sounds great. Should I also send a copy to MBNA? However, what happens if Restons don't respond by midday on Friday the 12th, regarding exchange of Witness Statements by 4 pm on the same day? In any case could you please explain the procedure for 'simultaneous exchange' of statements. One other point, regarding the contents of the PM I sent to you on 5th September, should this be mentioned now or best kept in reserve? Many many thanks for you help sc
  22. Also, if the creditor complies with a s77 or s78 request, albeit an unenforceable compliance, if you then make a further s77 or s78 request (which you are entitled to do after 28 days) would the creditor then have to comply with this aswell before terminating the account. Furthermore, as has happened on one of my accounts, if the creditor does have to comply with the the second request before terminating, is it sufficient just to state we have previously complied with your request. And, does the potential breach of the s77 or s78 request only occur after the prescribed term, or any time after the delivery of the request.
  23. x20, For a creditor to comply with a s77 or s78 request before terminating an agreement does this compliance have to be with an enforceable agreement, or can he comply with the request, but with an agreement that could possible be unenforceable, but still complies within the CCA. sc
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