MBNA/Restons CCJ/ CO

[the_shadow]

Phatram and CB, I am wondering whether my thread Miss Muppet vs MBNA, page 2, posts 35-37 might be of assistance to you, its quote from the OFT which I got from Trading Standards - sorry one day I might be able to do link backs but it is late!

 

I'm wide awake tonight so its Shadows own fool proof way of linking posts

 

Step 1. Go to the post you want to link to, on the top right hand corner of that post you'll find the permalink hyperlink, if you click on it the address bar of your explorer/firefox session will change to the full address of that single post.

 

Step 2. Highlight that address and hit Cntrl + C to copy it.

 

Step 3. Go to the post you want to place the link on, enter your message as normal and then click on the Insert Link button (The world with a paperclip on its side)

 

Step 4. In the box that comes up, just hit Cntrl+V to paste the hyperlink and then click on Ok.

 

Simples!

 

S.

[the_shadow]

Shadow's rent-a-quote service is here ..

 

---Quote---

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.

---End Quote---

Is this the correct Wilson one.. regarding prescribed terms?

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

S.

[the_shadow]

Perfect, Shadow:D You would have been a rep for that.. but I have to spread it around some more first

 

haha nay problem, I've had the same problem tonight... glad to help.

 

S.

[the_shadow]

Yeah, I've got some advice - start acting like a reasonable person.

 

 

haha bank of america are the biggest banking leeches in the world, they'll suck you dry and spit you out whilst they think they can make a buck in doing it.

 

S.

[the_shadow]

I would beg to differ from that advice, if the CCA was sent in response to a s78 request and its illegible then the s78 reqeust has NOT been met as per Carey vs HSBC.

 

As to amending your defence you'll need to make an application to court to change it via N244. (See GH has posted above the correct way to do it already) Post #668

 

S.

[the_shadow]

Ok, you mixing things here and its confusing...

 

IF you have recieved an illegible document in response to a s78 request then the s78 request has NOT BEEN met as per Carey vs HSBC.

 

IF you have received a reconstruction then they have met your s78 request as per Carey vs HSBC

 

IF you received an illegible document and then subsequently a reconstruction, its more complex, their initial response is binding as a legal s78 response but the reconstruction of documents is allowed where the document is lost or cannot be found, however I was nder the impression that illegible docs should require the claimant to provide a legible instance of the application form to show layout form etc etc.

 

Only you can decide which way to turn I'm afraid, this is a self help site with advice given in the best intentions but as you well know the buck stops with you, not us.

 

You have to be able to show the court that you have a trialable issue to go forward at the SJ hearing, a witness statement setting out the facts is a must imo.

 

S.

[the_shadow]

Are the DN's valid when they don't give a full 14 days to rectify the situation and/or the figure quoted on them contains late fees?

 

Brandon vs Amex deals with default notices that dont give the 14 days notice and unless you have been prejudiced by it its not a winnable point. An application for appeal is being heard 6th December.

 

S.

[the_shadow]

Letter from court.

Due to unavailability of DJ Hearing adjourned until 6/01/2011

 

Who says Xmas doesnt come early... Get the WS done asap as GH has stated.

 

S.

[the_shadow]

phatram,

 

beware of relying on the faulty Default Notice issue too much, If you are stating the only problem with either default is the amount of time to rectify then I would advise you to read up on Brandon vs Amex (Oral req for appeal to be heard in Feb I believe) it was held that unless the creditor took some enforcement action within the 14 days timescale the CCA act allows there would be no prejudice to the debtor. If appeal is granted in Brandon that may change but at the moment this is case law.

 

S.

[the_shadow]

As advised I will ask specific questions, even tho' the advisor never seems to answer the question !

 

CAG is a self help site, people give time up to attempt to repay a debt for the help they received or just to help their fellow debt sufferers, there is no obligation on anyone to respond to any postings.

 

Should I notify the court that the DN's are wrong and that I never received a TN. Due to the fact I've never had a TN, Restons failed to comply with the court order made 2 yrs ago and this should be thrown out? (Even tho' I've already done this and it was ignored)

 

The court dont care that the DN's are invalid in any shape of form, the judge might but pre-trial its down to you to attempt to direct the court via applications if you want the case chucked out. They will not do anything pro-active the court system is wholey re-active.

 

S.

[the_shadow]

Thanks.

The DN's are incorrect 'cos the amounts they say I owe contain Late fees,overlimit fees and interest after accounts put into dispute as well as the dates being wrong. Does this make a difference?

 

Ok, when you say in dispute, how exactly was this put into dispute??????... Need to warn you here that the new OFT guidelines on s77/s78 mean basically they can do anything whilst still not responding to a s77/s78 request EXCEPT obtain judgement.

 

S.

[the_shadow]

the (flawed) argument in brandon was that the creditor did not in fact terminate for several months after the DN- despite telling the debtor that they would

 

Flawed Yes, but now case law Also Yes

 

A barrister relying on this in relation to the statutory 14 days limit will imo with most judges overrule any counter argument as its now case law. The most you could get would be a stay until the oral application for an appeal is heard.. again imho.

 

S.

[the_shadow]

But at the time they did? So surely that should stand?

I was objecting to the interest rate rise and then when the agreement copies sent to me were illegble I was advised to put accounts in to dispute. I'm sure that advice was ok at that time.

 

The problem is that whilst illegible documents in reply to a s78 request make it unenforceable (even now by OFT guidelines) they still maintain that payments must still be made and interest will continue to accrue.

 

The new guidelines are just an establishing of what the OFT think right and the judges will tend to side with this I'm afraid citing Carey/McGuffick/Rankine et all.

 

 

S.

[the_shadow]

as far as i am aware the judge made the comment that as the creditor had not terminated for several months after the DN- the debtor was not prejudiced as he had had plenty of time to remedy the alleged default- but io stand to be corrected

 

34. Now, somewhat theoretical though it is, had American Express taken

enforcement action within 14 days of 19 June, it may well be that the validity of that

enforcement action would have been open to challenge. I express no final view on the

matter but I do understand the argument because, to go back to section 87,it must specify

the nature of the breach and if the breach is capable of remedy what action is required to

remedy it.

The whole idea is that a debtor should have 14 days within which to redeem the position, in

this case pay £275.80. So I understand the argument. As I say, I do not dismiss it as being

unreal.

But, the fact of the matter is no enforcement action was taken within 14 days of 19 June. So

we have the service of the enforcement notice but nothing immediately happens. In those

circumstances, even if Mr Brandon' s point is a good one it seems to me to be not relevant

in that he has not suffered any prejudice at all by virtue of that technical breach because,

never mind within 14 days he did not, for example, within 21 days, which on my finding

would clearly have been an appropriate period of time properly to comply with section 87.

He did not send American Express the cheque for £215. Nothing happened. So he

remained in breach of his obligation to pay a monthly instalment.

 

Direct from Brandon transcript.

 

S.

[the_shadow]

Ok, as I read it you have agreed to judgment against you.

 

1. Your to pay the costs of the claimant immediately

 

2. The total sum to be paid by £100 per month until repaid starting 10th Feb (GET a standing order setup for at least a couple of days prior to this if you can afford it)

 

3. They can apply for a charging order but can take no further action so long as you keep to the agreement.

 

Did they try for interest? was it mentioned?

 

s.

[the_shadow]

and is not payable on a regulated agreement debt

 

Really?

 

I openly confess I havent looked back through the history of the case so dont know if it applies in this instance or rather could have been applied for but post judgement interest is allowed as far as I'm aware if the terms&conditions allow it and the default notice warned of it.

 

S.

[the_shadow]

We've now received a load of stuff from the land registry which seems to say we cant stop this charging order going ahead. Any suggestions please.

 

???

 

I'm confused... I thought you got what you wanted... the consent order gave them judgement, they can obtain a charging order to protect the money owed but they arent allowed to proceed to any further enforcement so long as you keep paying the £100 per month and pay their solicitor fees now.

 

Is this not what you expected?

 

S.

[the_shadow]

Could the OP apply for an N245 redetermination for £100 pcm??

 

That way the CO would not be allowed

The CO is only allowed as the OP has failed to comply with the Order (i.e. forthwith)

 

You sure GH? re-read the judgment again, it clearly states the CO is allowed to be applied for despite agreement of £100 PCM.

 

or are my eyes decieving me (or my brain confusing me )

 

S.

[the_shadow]

Really

 

I've blogged about it sir:

 

haha youre too prolific with the blogs, I cant keep up.

 

Thanks for looking in, much appreciated.

 

S.

[the_shadow]

They already have an interim order, how? I wasn't notified of any application or hearing about this.

 

An interim order doesnt require a hearing.. it just needs an application from a creditor and the courts just need to be provided evidence you own or have a part ownership in the property (land registry will show this).

 

Its the permanent charging order that comes with a hearing.

 

S.

[the_shadow]

Last paragraph on continuation sheet 1 and the bit about PPI. This has not been refunded and so does this make the court order wrong as the amount they've sued me for is incorrect?

 

I take it you are referring to the trial? if so Judgement has been obtained, the time to point out any errors was at the trial or before.

 

S.

[the_shadow]

If the amount they say I owe is incorrect and I can prove it, is the judgement reversable?

 

You would have to appeal the judgement I believe and in that instance you would need some legal reason to appeal and you'd need the permission of the court to apply if out of time. If the judge had all the information in front of him/her and you didnt show the amounts were different I dont think that constitutes an appealable reason.

 

Have a look at the CPR for appeals and see if you can meet one of the criteria....

 

 

S.

[the_shadow]

CPR 52 for appeals

 

you would need leave to appeal no matter what out of or in time, so you would need to file your appellants notice asap

 

Thanks PT

 

S.

[the_shadow]

I think you've come round to the conclusion that the CO will be granted.. as advised on the other thread thats what was agreed to.

 

I personally would concentrate on

 

a) Ensuring the FOS know that MBNA have not complied with their order and get them to enforce it, its not up to you to chase MBNA, FOS should have done this.

b) Ensure Restons/MBNA know that you know your rights as per interest on CCA regulated debts... take a look at Sequenci's blog on interest and hopefully take some pointers from this.

 

S.