MBNA/Restons CCJ/ CO

[phatram]

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

 

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)

[phatram]

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.

 

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?

[gh2008]

Bearing in mind what Shadow has advised - why do you believe the DN(s) are wrong?

Why do you believe you should have received a TN?

 

I'm sorry Phatram as I have said before, IMHO I feel that you are out of your depth, unless you can spend the time to get a basic grasp of the arguments then I am afraid I can see the case ending badly with a large costs order against you as well.

 

You still have the Order from Court from 2 yrs ago that has not been complied with, yet there is no mention of it in your WS!!

That Court Order may be your 'get out of debt free' card yet you seem unwilling to find out why??

[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.

[gh2008]

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?

 

Nope, HHJ Brown in Rankine specifically dealt with these points

 

The dates are a very dodgy subject at the moment for the reasons already given - a *very* good argument delivered by Counsel could sway a DJ a *very* good argument delivered by a LiP and countered by Counsel quoting or misquoting rather Brandon will see it off pdq - that's jmho though

[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.

[phatram]

Bearing in mind what Shadow has advised - why do you believe the DN(s) are wrong?

Why do you believe you should have received a TN?

 

I'm sorry Phatram as I have said before, IMHO I feel that you are out of your depth, unless you can spend the time to get a basic grasp of the arguments then I am afraid I can see the case ending badly with a large costs order against you as well.

 

You still have the Order from Court from 2 yrs ago that has not been complied with, yet there is no mention of it in your WS!!

That Court Order may be your 'get out of debt free' card yet you seem unwilling to find out why??

 

I know I'm out of my depth, thats why I'm trying to sort it out. I did what I was supposed to do or at least I thought I had concerning the court order, it was ignored ! Would you please explain in plain English what you think I should do and not answer in riddles.

[phatram]

You still have the Order from Court from 2 yrs ago that has not been complied with, yet there is no mention of it in your WS!!

That Court Order may be your 'get out of debt free' card yet you seem unwilling to find out why??

 

Please explain what you mean.

[phatram]

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.

 

Put into dispute 'cos the copies of the signed agreements sent to me were illegible. They eventually supplied legible ones by the end of the FOS investigation.

[diddydicky]

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

 

the judgement failed (IMO) t take account of

 

1/ the will of parliament as to the prescribed format of what the DN must state

 

2/ The fact that various bodies including the OFT have stated that it may be a criminal offence for a creditor to make a false statement to a debtor which my result in the debtor taking a transactional decision that he might otherwise not have taken (therefore in this case the debtor could easily "throw in the towel" on being told that the agreeement would be terminated in 14 days)- and he has no hope of raising the money by then- nor at the time of receiving the DN does he have the benefit of a crystal ball to help him ascertain just when the creditor WILL terminate- if not on the date he said he would

 

3/ the obligation on the creditor as laid down in the CCA is that the DN should leave the debtor in NO DOUBT as to what the consequence of failure to comply would be- and that the creditor making a statement that he WILL after 14 days terminate the agreement- then not to do that which he made clear he would do- is sufficient to create doubt as to what will happen

 

4/ The pratice also has wider implications for other debtors s since they can then see from this brandon judgement that a DN is not realy a DN after all but simply another threatogram

 

this decision WILL (if argued propely) be reversed

 

 

also whilst in brandon it was several months before the creditor terminated- what of a creditor who terminates say only a week or two weeks after the expiry of the DN - how is the debtor to know that he can still retreive the situation- when the creditor moves away from the actions prescribed by parliament- to those of his own choosing

 

where in the CCA does it say that a creditor can mislead the debtor

[gh2008]

Would you please explain in plain English what you think I should do and not answer in riddles.

 

You need to understand your case.

You need to understand the consequences of a Summary Judgement application against you.

When an application states that a Witness Statement is due in by a given date you send in a Witness Statement

 

I do not answer in riddles - I try an d prompt you to understand what you have written in your own defence.

When the claimant's barrister rips your case to shreds in front of you, and then asks similar questions what are you going to say.

 

The Judge will rule 'on the balance of probabilities'

 

Even with the charges, you have not said why they shouldn't be applied, just that they shouldn't - Why not!! tell me why and I will tell you whether I think that's that's right or wrong.

 

If you can't persuade me you have a valid argument how will you persuade a DJ who will already be thinking that you are a debt avoider.........

 

Yes, I will play Devil's advocate at times, but I don't play as hard as the opposition

 

Too often Caggers have been 'spoon-fed' all the way until Court where they fall over not knowing what the hell they wrote and end up with another £6k on the bill and the other side laughing them out of Court.

 

Counsel's opening lines may include the fact that the defendant's defence is one found commonly on the Internet on consumer websites designed to enable debt avoidance and to merely waste the claimant's and the Court's time.

 

All to often the DJ will agree .....

[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.

[gh2008]

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

 

 

I understand BRandon slightly differently

 

Amex sent out DNs with the wording 'within 14 days after service of this Default Notice'

 

The statutory text includes " within 14 days of the above date"

 

The above date was said by Brandon to be the only date shown i.e. the date of issue rather than the 'date specified' (as required by S88)

 

So the argument was that when was the 'date specified'

a) 14 days from service

b) the date above i.e. the date of issue

 

 

The DJ then looked at the prejudice caused by the ambiguous nature of the Default Notice and decided that there was non as Brandon had never intended paying

 

In Brandon it was not the date being 14 days or service or anything that was in question but the prejudice caused by the ambiguity

The problem with Brandon is the fact that the DN did give 14 days from service albeit ambiguously

 

 

In Costa's case well that one (also at an appeal) it was ruled that service was on the date of posting NOT date of receipt

 

well, that's my understanding

 

Also why the argument would have to be put by Counsel because it is a very fine distinction

[gh2008]

Put into dispute 'cos the copies of the signed agreements sent to me were illegible. They eventually supplied legible ones by the end of the FOS investigation.

 

So the reason for the dispute was on a 'technical point' i.e. there was no dispute the account was opened, you spent on the account or the amount owed on the account?

IF that is the case (and correct me if I am wrong) then the OFT (and caselaw - Rankine again) do not consider simply non compliance with S77-79 request a genuine dispute over the debt

[phatram]

Nope, HHJ Brown in Rankine specifically dealt with these points

 

The dates are a very dodgy subject at the moment for the reasons already given - a *very* good argument delivered by Counsel could sway a DJ a *very* good argument delivered by a LiP and countered by Counsel quoting or misquoting rather Brandon will see it off pdq - that's jmho though

 

So basically I'm up s**t creek without a paddle, can't afford legal fees and can't win the case. Even though I'm the one thats been ripped off etc.

I will be writing to the court to ask for their reason for not answering the letter sent to them about non comp of the order.

[phatram]

So the reason for the dispute was on a 'technical point' i.e. there was no dispute the account was opened, you spent on the account or the amount owed on the account?

IF that is the case (and correct me if I am wrong) then the OFT (and caselaw - Rankine again) do not consider simply non compliance with S77-79 request a genuine dispute over the debt

 

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.

[gh2008]

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.

 

You were/are under no obligation to accept an interest rate rise and can write to a creditor explaining that. You can then just carry on repaying the debt at the agreed amount.

 

IF you stop paying then you have to have good reason.

IF you stopped paying because the agreements were illegible (pretty good reason) then when they sent the legible copies you should have restarted payments

 

If there are other reasons for non-payment then you have to be 100% confident of them.

 

If the agreements are enforceable then make an affordable offer of repayment.

If teh agreements are not enforceable then that should be the mainstay of your argument.

[phatram]

You were/are under no obligation to accept an interest rate rise and can write to a creditor explaining that. You can then just carry on repaying the debt at the agreed amount.

 

IF you stop paying then you have to have good reason.

IF you stopped paying because the agreements were illegible (pretty good reason) then when they sent the legible copies you should have restarted payments

 

If there are other reasons for non-payment then you have to be 100% confident of them.

 

If the agreements are enforceable then make an affordable offer of repayment.

If teh agreements are not enforceable then that should be the mainstay of your argument.

 

I complained to MBNA when they increased the int rates and they of course said it was tough. I then complained to the FOS and MBNA gave me some money back and £100 in compensation (not enough IMO). They then gave me PPI money back, but no interest on the premiums. And yet the debt is still more than it was when I disputed the accounts. :mad2:!

[phatram]

You need to understand your case.

You need to understand the consequences of a Summary Judgement application against you.

When an application states that a Witness Statement is due in by a given date you send in a Witness Statement

 

I do not answer in riddles - I try an d prompt you to understand what you have written in your own defence.

When the claimant's barrister rips your case to shreds in front of you, and then asks similar questions what are you going to say.

 

The Judge will rule 'on the balance of probabilities'

 

Even with the charges, you have not said why they shouldn't be applied, just that they shouldn't - Why not!! tell me why and I will tell you whether I think that's that's right or wrong.

 

If you can't persuade me you have a valid argument how will you persuade a DJ who will already be thinking that you are a debt avoider.........

 

Yes, I will play Devil's advocate at times, but I don't play as hard as the opposition

 

Too often Caggers have been 'spoon-fed' all the way until Court where they fall over not knowing what the hell they wrote and end up with another £6k on the bill and the other side laughing them out of Court.

 

Counsel's opening lines may include the fact that the defendant's defence is one found commonly on the Internet on consumer websites designed to enable debt avoidance and to merely waste the claimant's and the Court's time.

 

All to often the DJ will agree .....

 

As I stated earlier I misread the letter from court, it was not intentional. I suppose I'm a little apprehensive about whats happening but I still believe I'm a victim of MBNA's tactics. This company should be banned.

[diddydicky]

I understand BRandon slightly differently

 

Amex sent out DNs with the wording 'within 14 days after service of this Default Notice'

 

The statutory text includes " within 14 days of the above date"

 

The above date was said by Brandon to be the only date shown i.e. the date of issue rather than the 'date specified' (as required by S88)

 

So the argument was that when was the 'date specified'

a) 14 days from service

b) the date above i.e. the date of issue

 

 

The DJ then looked at the prejudice caused by the ambiguous nature of the Default Notice and decided that there was non as Brandon had never intended paying

 

In Brandon it was not the date being 14 days or service or anything that was in question but the prejudice caused by the ambiguity

The problem with Brandon is the fact that the DN did give 14 days from service albeit ambiguously

 

 

In Costa's case well that one (also at an appeal) it was ruled that service was on the date of posting NOT date of receipt

 

well, that's my understanding

 

Also why the argument would have to be put by Counsel because it is a very fine distinction

 

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

[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.

[phatram]

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.

 

So how on earth can I work out what I owe ? MBNA/RESTONS are not to be trusted.

And at the time I disputed I'm sure payments and interest were suspended until dispute ended?

Edited December 14, 2010 by phatram

[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.

[diddydicky]

You were/are under no obligation to accept an interest rate rise and can write to a creditor explaining that. You can then just carry on repaying the debt at the agreed amount.

 

IF you stop paying then you have to have good reason.

IF you stopped paying because the agreements were illegible (pretty good reason) then when they sent the legible copies you should have restarted payments

 

If there are other reasons for non-payment then you have to be 100% confident of them.

 

If the agreements are enforceable then make an affordable offer of repayment.

If teh agreements are not enforceable then that should be the mainstay of your argument.

 

have i missed something? (not had time to re read the thread)

 

where in the CCA does it say that a debtor may refuse to accept an increasse in the interest rate?(unless of course he pays off the debt)? as far as i am aware most credit card agreements allow the creditor to vary the rate

 

where in the CCa does it say that a debtor may cease to make payments when he has a dispute on the account?

 

The notion that if the creditor does not comply with s78- or for some other "dispute" the debtor may cease making payments is (IMO) a self serving notion on the part of the debtor and has no legal basis.

 

i would strongly advise anyone who raises a dispute on a credit account to KEEP PAYING the contractual payments (unless he does not care about his Credit record)

[phatram]

"You need to understand the consequences of a Summary Judgement application against you".

 

What would these be?