Jump to content


Registered Users

Change your profile picture
  • Posts

  • Joined

  • Last visited

Everything posted by indebtandharrased

  1. I have annotated in red where I think you should make some changes - I am sure others will comment too.
  2. Hi How they can state served 2nd August when it was only sent out to you that day (at best) who knows! As you can prove that service of their latest documents was on the fifth, you should have 14 days from then to reply with your defence, I believe. If you need the time it might be worth writing to them to that effect, asking for their agreement that you therefore have until 19th August to get your full defence to them. If they don't agree, it is something you can show the Judge to demonstrate how unreasonable they have been - perhaps?
  3. Third try with uploading. I cannot edit my earlier posts for some reason something has changed with regard to my permissions in the last few days. Judgment.pdf
  4. I hope you can read this better - the system of image uploading to the forum seems to have changed since I last used it - also I can no longert edit my posts![ATTACH=CONFIG]20678[/ATTACH]
  5. OK Here is the latest Judgment which arrived in the post this morning. Please can anyone comment on item number 4. It seems complete nonsense to me - how can a judgment be both on admission and in default? And what should/can I do about this judgmet? It seems that for a set aside I would have to have used CPR13 and CPR14 and now an appeal is the only route - but do I have sufficient grounds, based on item 4 of this ruling, if I have a valid defence (which I think I do)? Your rapid replies would be appreciated as I have less than a week to request leave for appeal.
  6. Hi. If the original DN demanded to full balance as a remedy, then the DN is faulty. A DN can only demand payment of amounts that are in arrears as a remedy. Does the copy of the DN in the POC have exactly the same content as the original DN? If it doesn't you can challenge their evidence and their witness statement, because the DN in the POC must be a "true copy". As for preparing your bundle, I suggest you follow the links posted on my thread (below) as I found them very useful http://www.consumeractiongroup.co.uk/forum/legal-issues/265332-help-require-default-judgement.html#post3005117
  7. Except that, had you paid up within the time limit provided on the DN they would have missed at least one statement to you - the one due in February. Under the act, if you remedy a default then the status quo of the agreement before the DN was sent is supposed to be fully restored. It appears to me that you haven't actually defaulted until the end of the 14 days allowed for remedy. I think you can safely say that the agreement was ended by MBNA at or before the time that the February statement was due - which is about the same time as the DN was sent. That is in breach of the CCA. The key phrase in Section 87(1) important in this case is: “is necessary before”.
  8. Do you know the LAST date you received a statement? I ask this because there are terms and conditions which apply to the Creditor as well as the Debtor. Currently MBNA t & cs include this one: So, if they stopped sending you statements in December '09 or January '10 or any time before the DN date, THEY have broken their own t & cs, which is a sure sign that they have terminated - or simply broken (defaulted on) the agreement.....
  9. So, you are saying that first make a Part 18 request and when you receive the response apply under CPR 31.14 for copies?
  10. Are you sure? I thought the wording was: So it does not cover documents they MAY rely on but have not disclosed at this early stage.....
  11. My calendar says the 12th Feb is a Friday. The 24th is a Wednesday and the 25th therefore is obviously is a Thursday. Statutory 14 days from service (first class) would be 24th Feb (8th + 2 + 14). If you can argue (and prove, as that seems to be the way the Judges work) that the DN was sent 2nd class then the 'by' date would have to be the 26th. As I understand it, weekends only 'count' if they interfere with the postage - i.e. post on a Friday, and both Saturday and Sunday do not count when working out the date of service; BUT the 14 days allowed for remedy does not give you time off at the weekends to cut the grass or do the shopping - the clock is still counting.....
  12. I quote from the thread you mentioned above: It is clear you cannot request under CPR 31.14 copies of documents which HAVE NOT been mentioned/disclosed in pleadings. Therefore CPR 15.5 does not apply. I could be wrong but: If the particulars of claim only mention the agreement, that's all you can expect to get from a request under CPR 3.14. If you want copies of anything else on which to base your claim, you need to wait for the claiment to mention (or disclose) them before you can request copies under CPR 31.14.
  13. I take on board what you have said - but if a Judge says that the Judgment was NOT in default and therfore there is no procedure under CPR 13 I can use to requeat a set aside - what am I to do (other than appeal)? An appeal can be costly - and I want to be sure of the facts - i.e. WHAT the original judgment actually is - i.e. default/summary/something else. I have no clear definition - from you, anyone else or from extensive research of the CPRs and Practice Directions - of what a judgment 'entered wrongly' means. Does it include court administrative errors? Or does it mean simply what Judgment the claiment (wrongly) requested?
  14. As the status/class/type of the original judgment is unclear, I have written the following to the court today: I feel that without this information, any application for an appeal would be foolhardy. What do you think?
  15. Hi I agree with you that defending on the basis of a DN which is only defficient in not allowing you enough time to remedy (by two days max) is pretty weak and likely to fail the 'Judge Lottery'. You need something more watertight and which ultimately you could appeal if you get the wrong decision from a DJ. However, if you have documentary evidence of what you claimed in your first post: and with the backup of the letter from Experian, which says that the claimant was telling them, according to industry standards, that the agreement was terminated on 29th January, you may have enough to go for a strike out of the claim, as they would have no lawful grounds for a claim having terminated the agreement along the lines of:
  16. There may be another, and more concrete way, to establish if your agreement was ended PRIOR to the DN being served - and therfore unlawfully under the CCA 1974. I suggest you read this thread: http://www.consumeractiongroup.co.uk/forum/legal-issues/270471-me-restons-mbna-defence.html#post3059492 You will need to get the communications log from MBNA (Subject Access Request) - or simply get the info from Experian about your account status.
  17. Not disagreeing with Mould about embarrased defences "not working" BUT it is unlikely you willl have all the documents you request under CPR 31.14 in time to file a full defence before the time limit expires - hence the embarrassed defence is a holding defence until you have all the information required to submit a full defence. The other point is that CPR 31.14 only allows you to request copies of documents disclosed. The only disclosed document at the present time, based on the claim form you have received, is the alleged contract. When they issue a fully particularised claim, Restons will no doubt claim your DN was sent First Class. Therefore, with a date of Monday 8th February they will claim service on the 10th February. So, a 'by' or 'before' date of 25th would give you at least 14 days to respond, as required under Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) Schedule 2(3). So that is not an argument on it's own - you will have to argue that the DN was not sent First Class but by another (slower) postal service and get Restons' to prove otherwise. If they can't THEN the DN would be invalid..... I would suggest that if at this stage you bang off an application for a strike out based on the DN being faulty you will be unlikely to succeed. Wait until the Claimant claims First Class post was used for service - THEN you can challenge it - at the moment, I would suggest, you are not in a position to do that.
  18. Hi C2K I have some experience, rather than being an 'expert', but the first thing I suggest you do is ACKNOWLEDGE the claim on-line. This is quite straightforward and will get you an extra 14 days (28 days rather than 14) to file a defence. Next (before the 28 days are up) I would suggest you file an "embarrased" defence. This too can be done online and will give you sufficient time to prepare your full defence. As the claim was issued through the bulk centre you will not have received detailed particulars of claim or know what arguments and supporting documents they will be relying on. It's good that you still have the DN and the envelope - these can be compared with the evidence the Claimant will be relying on (when you receive it) and it may show that their evidence is flawed. The documents they will be relying upon are likely to be 1) the agreement 2) the DN and 3) copy statements (but these are unlikely to cover the whole period that you had the credit card) 4) any other correspondence between you and them that they find useful in support of their arguments. After receiving your embarrased defence from the Court this will lead to Reston's issuing a fully particularised claim which will include a witness statement and the above evidence. You will also receive an Allocation Questionnaire from the Court which you MUST complete and return on time. In the meantime, if you could post up your DN and the claim form you received (with all your personal details hidden) the experts here can take a critical look at them. I'll be subbing and will add what I can to help you later on IDaH
  19. Thanks Robin However, I am still unclear on the position regarding the orginal Judgment and what may happen to it as a result of the order(s) made on 20th July. As you say I need to know what the Judge has finally said. Is it possible the Judge could change the judgment that has been entered regardless of the circumstances? The clerk was quite clear on the phone to me today that the Judgment in Default was correct for the situation - but without seeing what judgment the Claiment requested on their N225 I cannot be 100% certain.
  20. Hi Robin Have read ALL your thread over the last couple of days as I have have myself failed to get a jusdgement set aside and may need to appeal. Could I ask you to take a look at my thread - from post 38 anyway - and let me have your comments? Thanks http://www.consumeractiongroup.co.uk/forum/legal-issues/265332-help-require-default-judgement.html#post3002473 IDaH
  21. I called the court this morning to ask what judgment was originally entered and to ask for a copy of the N225 submitted by the claimant asking for judgment. I was told I would have to write and ask for a copy of the N225 and a judge would have to approve it - i.e. it's not something I am automatically entitled to. HOWEVER they confirmed that the judgment entered against me is Judgment in Default and gave me the reason for that judgment; the judgment entered on the court records is NOT judgment under admission and therefore what the Claimant's barrister argued at the set aside hearing was erroneous and I think deliberately meant to mislead the court. So, procedurally, what do I do now? Do I simply write to the court? Or must I begin an appeal? If I need to appeal I have maybe 13 days left to do so, though I haven't received anything from the court following last Tuesday's (20th) Hearing. Help!
  • Create New...