MBNA/Restons CCJ/ CO

[phatram]

Any ideas anyone?

[phatram]

bump

[phatram]

Any ideas anyone?

 

bump

[phatram]

Should I make the offer or not? the DN's are I believe incorrect. One "agreement" is an application form and clearly states that. Could I win a court case 'cos of the Default notices being incorrect? etc etc

[phatram]

bump

[exchange]

Blimey phatram, subbed to your thread but you must be frustrated with the lack of response. Somebody better qualified than me should reply, and in these circumstances I would use the red triangle on the left to get attention. It's worked for me when I needed help in the past and noone answered.

Best of luck.

Exchange

[citizenB]

Should I make the offer or not? the DN's are I believe incorrect. One "agreement" is an application form and clearly states that. Could I win a court case 'cos of the Default notices being incorrect? etc etc

 

 

Phatram, in what way are the default notices incorrect ? Can you pop a link to them if they are already on your thread somewhere.. or post them up if they arent

 

Here is what BRW has to say about Default notices on another thread

 

Obviously the dates in respect of the DN below are specific to the other user.. but it gives you an idea of what to look for.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2832151.html

 

Hello E!

 

The above s87(1) Default Notice, assuming they sent it via normal Post, is clearly defective because it has not allowed you the 14 clear days that Parliament demands must be the case.

 

01/09/2009 is a Monday, so if we assume they posted it via 1st Class Post, and did actually Post it on the Monday, then it works out like this (if they cannot prove they Posted via 1st Class, or you have the Envelope and that shows 2nd Class or worse, then 2nd Class will have to be assumed by the Court which makes it even worse for them, see the second table of dates below this one):

Quote:

s87(1) Default Notice if Posted via 1st Class Post

 

01/09/2009 Mon = s87(1) DN Date and Date of Posting 1st Class (if they can prove it).

02/09/2009 Tue = DN in transit +1 day.

03/02/2009 Wed = Date of Service (+2 days from Posting).

04/09/2009 Thur = 1st Clear Day

05/09/2009 Fri = 2nd Clear Day

06/09/2009 Sat = 3rd Clear Day

07/09/2009 Sun = 4th Clear Day

08/09/2009 Mon = 5th Clear Day

09/09/2009 Tue = 6th Clear Day

10/09/2009 Wed = 7th Clear Day

11/09/2009 Thur = 8th Clear Day

12/09/2009 Fri = 9th Clear Day

13/09/2009 Sat = 10th Clear Day

14/09/2009 Sun = 11th Clear Day

15/09/2009 Mon = 12th Clear Day

16/09/2009 Tue = 13th Clear Day

17/09/2009 Wed = 14th Clear Day

18/09/2009 Thur = The earliest day they can demand payment.

 

Thus, 18/09/2009 is the earliest date they should have stated on the above Notice, provided they sent it on the same day as it was issued, and they can prove it was Posted via 1st Class. If not, then move on to the 2nd Class schedule below:

Quote:

s87(1) Default Notice if Posted via 2nd Class Post

 

01/09/2009 Mon = s87(1) DN Date and Date of Posting 2nd Class.

02/09/2009 Tue = DN in transit +1 day.

03/02/2009 Wed = DN in transit +2 days.

04/09/2009 Thur = DN in transit +3 days.

05/09/2009 Fri = Date of Service (+4 days from Posting).

06/09/2009 Sat = 1st Clear Day

07/09/2009 Sun = 2nd Clear Day

08/09/2009 Mon = 3rd Clear Day

09/09/2009 Tue = 4th Clear Day

10/09/2009 Wed = 5th Clear Day

11/09/2009 Thur = 6th Clear Day

12/09/2009 Fri = 7th Clear Day

13/09/2009 Sat = 8th Clear Day

14/09/2009 Sun = 9th Clear Day

15/09/2009 Mon = 10th Clear Day

16/09/2009 Tue = 11th Clear Day

17/09/2009 Wed = 12th Clear Day

18/09/2009 Thur = 13th Clear Day

19/09/2009 Fri = 14th Clear Day

20/09/2009 Sat = The earliest day they can demand payment.

 

Thus, 20/09/2009 is the earliest date they should have stated on the above Notice, provided they sent it on the same day as it was issued, and they can't prove it was Posted via 1st Class, or you have the original Envelope that proves 2nd Class Post was used, or you have some other evidence that the Envelope was not Posted on the same day as it was issued (such as a Franking Date Mark that says 2nd September 2009 or later, in which case, the clock starts ticking later).

 

The reason I have typed the above, is so that you can see there is no way you have been allowed the 14 clear days if this Notice was sent to you via Post.

 

 

Your Strongest Argument

 

That defective s87(1) Default Notice is your strongest Application argument so, it's the one you hit them with first and hardest. Don't get bogged down saying too much else, otherwise you will just soften the impact of your main point. To ram that home, you must know the issues backwards, and be willing and able to make it clear that there can be no leeway on this issue.

 

This has nothing whatsoever to do with morals, so do not let the Judge try to get past this by saying daft things like...

Quote:

...were you going to pay it?

 

...you've spent it so you must pay it back.

 

That is not for the Judge to rule upon if the Notice is defective. The acid test is the Notice itself. Was it set out in the Prescribed form using the Prescribed words, did it accurately state what you had done wrong in relation to the Terms of the Agreement, did it accurately state the exact default amount they were entitled to demand that you pay and did the Notice give you 14 clear days?

 

If the answers to any of the above are no, then the Notice is defective, and the Claimant loses any right to enjoy s87 benefits. If the Agreement is also Terminated, either by a Termination Letter because they have taken enforcement action not otherwise allowed unless they had secured s87 benefits, then that Agreement is ended, and they cannot thereafter issue an effective s87(1) Default Notice.

 

 

Further Reading

 

You must read the Default Notice Thread by Surfaceagentx20, and you must read this case and include it with your Skeleton Argument (and send the enemy a copy well ahead of Court):

 

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998 )

 

Note the Judge's comments about accuracy, i.e. if they ask for something to which they are not entitled then, in his Judgment, the Notice is defective.

 

Also, note that the Judge in that case does not say that a Court can overlook anything if it is de minimis, he only says they might overlook something...i.e. if the matter were very small. I would suggest that would be something like missing a full stop, or a minor issue like that.

 

 

Fighting a de minimis arugument:

Failing to set the Notice out in the Prescribed way, using the Prescribed Wording is not de minimis.

Failing to state what you have done wrong with accuracy in order that this fault can be remedied is not de minimis.

Failing to state the exact default sum you need to pay in order to remedy the default is not de minimis.

Failing to allow the Statutory number of clear days that Parliament demands that you must be allowed is not de minimis.

 

The Court cannot allow for any such errors, because there is nothing in either the Act nor the supporting Statute that permits any leeway. The phrase de minimis is not mentioned anywhere that matters. In any event, all this phrase means is a Court can overlook a very small matter that is of little concern.

 

If the Judge or the enemy try to use a de minimis argument, then ask them to direct you to the area of the Law that mentions they can do this? i.e. just so that you can direct people to this point later when the Appeal comes up!

 

But, seriously, get your ahead around this, and realise that there is no leeway if they get the Notice wrong. It cannot be fixed, unless they are entitled to issue an effective Notice, and to do that, the Agreement has to be live, which it cannot be if they have taken you to Court to demand early payment.

 

 

The Right to Demand Early Payment Depends on s87

 

The right to demand early payment is only available to them if they are already in possession of an effective s87(1) Default Notice that you failed to remedy once the Statutory time had elapsed. Without that, it's a Catch 22 situation for them, because they need an effective Notice to use s87 and, if they are found to have used s87 without an effective Notice, then they have clearly Terminated the Agreement via unlawful Rescission of Contract. That's because they have demanded something from you to which they were not entitled, so have shot themselves in the foot because it is then they who have broken the Agreement by doing this.

 

 

Secondary Arguments

 

Once you have banged home the above issue, then of course the next main points you can hit them with is their poorly pleaded Particulars of Claim (read CPR so that you understand CPR 16), and their monstrous attempt to try and make you pay s69 County Courts Act 1984 8% Simple interestin relation to a Claim that is based upon a Regulated Agreement.

 

Take a copy of this, and include it in your Skeleton [note s2(3)(a)]:

 

The County Courts (Interest on Judgment Debts) Order 1991

 

 

Minor Arguments

 

By all means mention the way they have behaved generally, but keep it short and sweet, and use this mainly to show how unreasonable they have been, and how Court could have been avoided had they acted more decently.

 

 

P.P.P.P.P.P.P.

 

Remember the above! Proper Prior Planning Prevents P*** Poor Performance!

 

Get your notes ready, then spend some time reading out aloud, from memory, what you want to say. If you stumble, then make some brief notes to help yourself. Then try again, and again, and again.

 

If you keep getting it wrong, then by all means draft a speech, and tell the Judge you are a Litigant in Person, unfamiliar with speaking in Court, so would the Judge mind if you read out your speech from your pre-prepared notes. Stand up, speak clearly and slowly, and state your case that supports your Application.

 

Make sure your Court Bundle is next to you, and practice how you can turn to anything you might need to refer to, such as CCA s87, CCA s88, the Statute on Default Notices [Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 SI 1983-1561], the above Case that covers Default Notices, and anything else you think would be useful.

 

 

A Quick Self-Test

 

To test yourself, try working out answers and strong counters to the following questions and invalid statements:

A Default Notice is not important, I can overlook that, what matters is the Agreement.

Point out that the proper execution of the Agreement is another matter, and does not affect the key issue over their loss of any right of action if they have failed to end the Agreement appropriately.

The Notice is dated the 1st and they want payment by the 15th, that's over 14 days, is it not. What's your problem?

Point out that's not allowing 14 clear days, see the Tables above based on 1st and 2nd Class Post, explain the way 14 clear days must be allowed, and the consequences of getting it wrong because they lose all s87 benefits for all time.

You clearly owed them money, are you denying that?

Point out that it is for the Claimant to prove that a properly executed Regulated Credit Agreement was made, and can be produced before the Court (CPR PD16 7.3), and then for the Claimant to prove they have secured a right of action to demand early payment of sums not otherwise due before they elected to end such an Agreement. Say you are not denying that an Agreement was made, but questioning if it was properly made, and if they have ended it in such a way that allows them to seek early payment of sums not otherwise due.

Demanding early payment is not enforcement, and does not end the Agreement.

Point out that the recent McGuffick case, and the latest OFT guidelines confirm that demanding early payment is enforcement, and requires s87 benefits. Those benefits are only secured by following s87 and s88 to the letter. Taking such steps without s87 benefits, is a breach of the Agreement on the part of the Creditor and amounts to an unlawful rescission entitling you to a valid Claim for damages against them for ending the Agreement in this way

The default sum is correct if they deduct the unlawful charges they have since offered to repay and/or have since repaid.

Point out that a bank is, or should be, in a position to get their figures right. Nobody would accept errors when checking their bank balance via ATM, so it's only reasonable that a bank should know, to the penny, what is owed at any one time. If they have made mistakes, or levied charges to which they were not entitled, then this destroys any credibility that the sum they claimed in the Notice was properly owing and due. The above Case makes it clear that demanding sums to which a bank is not entitled, will render any Notice defective on that basis alone.

The Default Notice is headed correctly, and you must've known what it was about, so why should I not overlook these minor errors that you say exist.

Point out that the wording of a Notice is Prescribed, there can be no room for error. If the Judge agrees that the Notice contains errors, and/or mistakes and/or has not allowed the Statutory time, then it can only be the case that the Notice is defective and must rule on that basis. To rule otherwise, needs to be supported, and say you cannot see anything in either the Act or supporting Statute that permits defects in a Notice to be overlooked. Direct the Judge to Swain...and have ready, read out aloud, some of the best and hardest hitting quotes from that Case.

 

 

So, start asking similar questions, and start thinking how you would counter them. Then go back and re-word your main opening statement so that you try to cover such issues before the Judge starts asking them!

 

The trick is to go in hard from the outset, and leave the Judge no sensible option but to agree with you! But do be ready to answer any questions, and field any fast balls the Judge shoots at you to probe any gaps in your Application's verbal opening statement on the day.

 

If you can spot a problem today, you can bet the Judge will spot it on the day. So keep going over this, and keep refining your line of attack until you have covered all the key issues. Then condense it so the Judge does not fall asleep while you read it all out!

 

I do hope this helps.

 

Cheers,

BRW

[phatram]

Post 124 is one of them

[phatram]

[phatram]

[phatram]

Dont think they gave me 14 days?

[royalblue1878]

Phatram, in what way are the default notices incorrect ? Can you pop a link to them if they are already on your thread somewhere.. or post them up if they arent

 

Here is what BRW has to say about Default notices on another thread

 

Obviously the dates in respect of the DN below are specific to the other user.. but it gives you an idea of what to look for.

 

Hi,

 

Don't want to hijack but it may help also.

 

If the above 2nd class or 1st class example (post 586) was posted on a friday....would the saturday and the sunday be 'in transit' days above the normal 4 allowed?

 

So: for 2nd class

 

Fri - post date

Sat - transit +1day

Sun - transit still day 1 ?

mon - transit day 2

tue - transit day 3

wed - date of service

 

or does sunday count so that tue would be date of service?

 

Cheers.

Edited March 24, 2010 by royalblue1878
post no'

[exchange]

Neither Saturday or Sunday (or bank holidays) count as 'transit' days. Posted on a Friday the service day is the following Tuesday for 1st class, Thursday for 2nd class, unless someone knows otherwise!

Phatram, you have definitely been short changed on both your DN's but I suspect MBNA have never put any termination in writing. This leaves them open to have another go at getting a DN right.

Hope this helps.

Exchange

Edited March 24, 2010 by exchange
clarification

[phatram]

I can't remember tbh, better start searching through all the paperwork.

[phatram]

RESTONS

SOLICITORS LTD

 

Trinity Chambers 800 Mandarin Court Centre Park Warrington Cheshire WAI 1GG Fax 01925 417517 DX 17770 Warrington

 

 

 

 

 

 

 

 

 

 

Please Reply To: Mr Direct Line 0870 755 9821

Email [email protected]

Our reference:

Wednesday May 14, 2008

 

 

 

 

 

 

 

Dear Sir

 

URGENT - For IMMEDIATE action

 

 

 

MBNA Europe Bank Ltd v. Yourself, ref. Overdue Credit Card balance Balance: We are instructed by MBNA Europe Bank Ltd to claim immediate payment from you of the balance outstanding on your Overdue Credit Card balance, £xxxx.xx , plus capitalised interest as appropriate.

You must now pay £xxxx.xx to this office by Thursday, May 22, 2008 failing which a summons will be issued for the full balance PLUS any continuing interest, fees and costs. A Judgment will be entered against you which will be registered. Your credit record will be affected making it difficult for you to obtain credit in future.

Our Client may be prepared to accept payment by instalments. If you wish them to consider this option please complete the enclosed questionnaire and return it to this office within 6 days. Unless we hear from you we may decide to telephone you on any number available to us. Alternatively please telephone us on the above DIRECT line within 6 days. All future correspondence/payments should be sent to this office clearly marked with your name and account number. Receipts will not be given unless specifically requested.

Finally, our Client has asked us to draw to your attention an opportunity for you to clear the account at a specially discounted settlement figure which could represent a substantial saving for you. If you are interested you should call the direct line listed at the head of this letter.

Yours faithfully,

 

 

 

 

 

 

 

 

 

 

Mr M Litigation Executive pp Reston's Solicitors Limited

 

Why would they offer to settle at a discounted figure?

[royalblue1878]

Hi Phatram,

 

I recieved that same letter from Restons back in August 09.

 

I replied stating that 'due to my income I could only offer a token payment of a pound a month as previously stated. If my position changed then maybe I could offer more.'

 

They replied to say that 'my offer was not acceptable and MBNA have instructed them to commence legal proccedings'.

 

It is a standard letter they send maybe to pretend to be trying to do something to avoid court action.

 

If your happy to offer £50 a month and can afford it and they accept it then that is one way of avoiding any court paper tennis.

 

I got my court papers the next day.

 

Restons/MBNA will take you to the limit hoping you will cave in first. If you can't pay and you feel you have a good solid case then let them carry on.

 

In the end they had no CC agreement and discontinued their action a day before an application notice (to strike out) hearing.

 

The offer for a discounted figure is just to cut their 'losses' and looks good if it ever gets as far as a court hearing.

 

If you are happy to offer £50 a month and can afford it then that is one way to avoid any future court paper tennis. (providing they accept it)

Edited March 24, 2010 by royalblue1878
bottom bit

[supasnooper]

Don't waste your time looking for a termination letter from MBNA...........they don't send them.

 

However, look at this post as it explains MBNA's position once an account is "charged off" ( or terminated) - img011.jpg picture by paulbaxter009 - Photobucket

 

Both of the Default Notices are defective by the way.

[phatram]

I've decided against making an offer. I want to become a thorn in their side and make them work for it. I want to make sure they've done everything correctly or my solicitor will have them. He thinks they could end up backing off if they think they may lose for any reason. I'm thinking of writing to Restons asking them to confirm the amount of the alleged debt and how they arrive at that figure. Anything else I should do?

[joemay]

Bump - Good for you not rolling over and making them work

[phatram]

Not heard anything yet.

[The GodMother]

I would assume you have attached conditions to that offer Phatram.

[phatram]

I did but the FOS ignored that and found in MBNA's favour

[The GodMother]

No i mean your £50 a month offer.

[phatram]

I haven't made any offer yet. After FOS case ended and MBNA said they would put everything back to how it was interest rate wise etc I thought they would write to me, they did not. I got a letter from Restons which I have posted up, since then I've heard nothing. I'm justing waiting to see what happens next.

[The GodMother]

Oh rite l thought you had wrote to restons offering £50 a month. Sorry my fault.