MBNA/Restons CCJ/ CO

[pt2537]

you need to show the court that there is a matter for trial and that matter has the possibility of succeeding at trial

 

if you cannot do that, then the court can grant SJ against you

 

The case that is helpful to read is Swain vs Hillman. I would love to be able to upload a text i have which would assist in dealing with SJ but i cannot sadly,

 

sorry.

[pt2537]

a) Refer to the grounds for summary judgment set out in the applicant’s evidence;

b) Explain why, by reference to the facts of the case, the respondent believes the claim/defence or issue therein does have a real prospect of success. If the respondent is the defendant his evidence should seek to establish from the facts that he has a real prospect of successfully defending the claim or issue. If the respondent is the claimant his evidence should seek to establish that he has a real prospect of succeeding on the claim or issue; and/or

c) Explain why, by reference to the facts of the case, the respondent believes there is a compelling reason for a trial. A respondent that has failed to establish that he has a real prospect of success may still prevent an order for summary judgment if he shows that there is a compelling reason for a trial (e.g. the case is complex, there has been insufficient opportunity to prepare a defence).

d) If the respondent believes the proceedings are excluded from the provisions of CPR Pt 24, explain why. For information on when summary judgment is not available, see section 2.2 of the Procedural Guide “Application for Summary Judgment”.

e) If the claimant is the applicant, and the application is being made prior to filing the acknowledgment of service or defence, the defendant may contest the application on the grounds of it being made too early (unless the court has given permission pursuant to r.24.4(1).

f) Has the respondent been given 14 days’ notice of the hearing?

 

 

 

These are guidance notes on preparing a witness statement in opposition of summary judgment that i use, i hope they assist, but that is the best i am able to do

[phatram]

My wife (bless her ) has come up with some good points. Just need to get it onto paper now and will post on here for checking. Is that a good idea tho'? or are we spied upon?

The WS I'd done was rubbish TBH. Think I've got it straight in my head now. Good job I married a clever lady !

Thanks everyone.

Edited December 10, 2010 by phatram

[phatram]

First bit,

IN THE DERBY COUNTY COURT Statement of

***********

Defendant

Dated :

Between:-

MBNA EUROPE BANK LIMITED

Claimant

And

Defendant

WITNESS STATEMENT

1. I *********of **************, the Defendant am a litigant in person in this case.

2. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

3. I made a request to MBNA EBL in November 2007 asking them to supply me with copies of

the credit agreements for my two credit card accounts. The reason for this was to enable me to check they were within their rights to increase the interest rates by so much on said accounts.

The agreements supplied were illegible so I put the accounts into dispute in December 2007.

4. MBNA EBL continued to add interest and late charges to both accounts which I believe is wrong when accounts are in dispute.

5. I then started to receive threatening letters and many many telephone calls from MBNA EBL, which I found to be intimidating, disruptive and harassing.

6. I made a complaint to the Financial Ombudsmen Service.

[phatram]

How would I word it concerning the DN's not allowing enough time to rectify the debt?

[gh2008]

There are sooooo many threads on here regarding faulty Default Notices

Click here http://www.google.co.uk/search?sourceid=chrome&ie=UTF-8&q=site:consumeractiongroup.co.uk+14+days+default+notice and Google will return over 10,000 posts regarding time limits on default notices.

 

This is basic research that you should have been doing 2 years ago.

 

How have you progressed re getting them to comply with the Court Order from 2 yrs ago??

[phatram]

you need to show the court that there is a matter for trial and that matter has the possibility of succeeding at trial

 

if you cannot do that, then the court can grant SJ against you

 

The case that is helpful to read is Swain vs Hillman. I would love to be able to upload a text i have which would assist in dealing with SJ but i cannot sadly,

 

sorry.

 

http://en.wikipedia.org/wiki/Summary_judgment

[phatram]

There are sooooo many threads on here regarding faulty Default Notices

Click here http://www.google.co.uk/search?sourceid=chrome&ie=UTF-8&q=site:consumeractiongroup.co.uk+14+days+default+notice and Google will return over 10,000 posts regarding time limits on default notices.

 

This is basic research that you should have been doing 2 years ago.

 

 

How have you progressed re getting them to comply with the Court Order from 2 yrs ago??

 

In my line of work (I do more than one job) I do not have much spare time! I did lots two years ago but can't remember everything.

I answered yr question in post 723.

[phatram]

So allowing for delivery time also then the you have not been allowed the required 14 days to rectify said breach.

Are you aware of any penalty charges contained within the default notice amount and does the amount equate to their Summons amount?

In answer to your question have they complied well partially apart from the NoA.You need to inform the Court on the deadline that this is still outstanding and also you need to know the amount on the NoA equates to said DN/Summons.

The above points are what you need to concentrate on to further your case not sure if just the absence of the NoA will satisfy the order to strike out

 

 

Regards

 

 

 

 

Andy;)

 

 

This surely covers what you are talking about with DN's?

[phatram]

Regards

 

Andy;)

 

 

This was sent.

[phatram]

Yes please GM.

I'm really not happy the court has ignored everything I've sent to them etc.

Disgraceful

 

As I stated earlier.

[phatram]

Just going through all the paperwork and thought I'd post these two Default Notices for a bit of fun. I just love the dates on them, I'm sure they've dropped a goolie with them. When should I give them the "good" news?

 

 

 

Well the first one is duff on dates and even though they have obviously tried to rectify it by issuing another by backdating the 2nd.. that one too is duff.

 

Make my day and tell me they terminated the account on the back of either or both of those

 

I would let them find out when you submit your defence.

citizen b.

[phatram]

The accounts haven't been terminated, just passed to Restons.

Edited December 13, 2010 by phatram

[phatram]

1. Do I have to send a copy to Restons?

[phatram]

Here goes folks. What do you think please?

 

 

1. I *********** the Defendant , am a litigant in person in this case. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. I do not believe a Summary Judgement should be granted for the following reasons.

 

 

 

2. I believe I am a victim of MBNA’s predatory tactic’s, where they lure consumers to them with offers of low rate credit cards only for MBNA to increase the rates of interest deliberately to an unaffordable amount. I also believe that they increased the rates as a retaliatory act after I successfully claimed back some unlawful late fee charges and complained to MBNA about this in September 2007.

 

 

 

3. I made a request to MBNA EBL in November 2007 asking them to supply me with copies of

 

 

the credit agreements for my two credit card accounts MBNA ABBEY and MBNA VIRGIN . The reason for this was to enable me to check they were within their rights to increase the interest rates by so much on said accounts. The agreements supplied were illegible so I put the accounts into dispute in December 2007. MBNA eventually supplied legible copies after the intervention of the FOS.

 

 

 

4. MBNA EBL continued to add interest, late charges and overlimit fees to both accounts after I disputed them which I believe is wrong and against guidelines when accounts are in dispute.

 

 

 

5. The amount Restons state I owe is incorrect. The amount has varied from over £12000 to under £10,000.I believe it to be much less than this.

 

 

 

6. I then started to receive threatening letters and many, many telephone calls from MBNA EBL, which I and my family found to be intimidating, disruptive and harassing.

 

 

 

7. I made a complaint to the Financial Ombudsmen Service about MBNA in May 2008.

 

 

 

 

8. The Default Notices sent to me were incorrect/invalid, in that both failed to allow enough time to rectify the situation and the amounts owing shown were incorrect.

 

 

 

9. I disagree totally with Restons statement regarding refunds paid to the accounts. I am in possession of a letter, dated Monday 28 June 2010, from Mr J T Wild, stating that both accounts had been credited “with refunds of Payment Protection Insurance premiums”.

[phatram]

Just in case anyone from Restons looks in,

http://www.sra.org.uk/solicitors/code-of-conduct.page

[nicklea]

 

The case that is helpful to read is Swain vs Hillman. I would love to be able to upload a text i have which would assist in dealing with SJ but i cannot sadly,

sorry.

 

The case is here:-

 

http://www.bailii.org/ew/cases/EWCA/Crim/1999/2251.html

 

and Three Rivers District Council v. Governor and Company of The Bank of England [2001] UKHL 16; [2001] 2 All ER 513 also makes reference to that case:-

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2001/16.html&query=%22salutary+power%22&method=boolean#disp1

[diddydicky]

The accounts haven't been terminated, just passed to Restons.

 

the account HAS been terminated - if the creditor said in the dn that they would be- on or after the date mentioned in the DN?

 

the DN should leave the debtor in no doubt as to the action that would be taken in the event that he fails to remedy the DN

 

therefore if the creditors says he WILL terminate on such a date- then he is held to his word!!

 

if the creditor did not intend to terminate on a stated date- then he ought not to have said so

[phatram]

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice.

The Claimant may not serve a second effective default notice in prescribed form. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

Can someone explain that in plain English please?

[phatram]

Here goes folks. What do you think please?

 

 

1. I *********** the Defendant , am a litigant in person in this case. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true. I do not believe a Summary Judgement should be granted for the following reasons.

 

 

 

2. I believe I am a victim of MBNA’s predatory tactic’s, where they lure consumers to them with offers of low rate credit cards only for MBNA to increase the rates of interest deliberately to an unaffordable amount. I also believe that they increased the rates as a retaliatory act after I successfully claimed back some unlawful late fee charges and complained to MBNA about this in September 2007.

 

 

 

3. I made a request to MBNA EBL in November 2007 asking them to supply me with copies of

 

 

the credit agreements for my two credit card accounts MBNA ABBEY and MBNA VIRGIN . The reason for this was to enable me to check they were within their rights to increase the interest rates by so much on said accounts. The agreements supplied were illegible so I put the accounts into dispute in December 2007. MBNA eventually supplied legible copies after the intervention of the FOS.

 

 

 

4. MBNA EBL continued to add interest, late charges and overlimit fees to both accounts after I disputed them which I believe is wrong and against guidelines when accounts are in dispute.

 

 

 

5. The amount Restons state I owe is incorrect. The amount has varied from over £12000 to under £10,000.I believe it to be much less than this.

 

 

 

6. I then started to receive threatening letters and many, many telephone calls from MBNA EBL, which I and my family found to be intimidating, disruptive and harassing.

 

 

 

7. I made a complaint to the Financial Ombudsmen Service about MBNA in May 2008.

 

 

 

 

8. The Default Notices sent to me were invalid, in that both failed to allow enough time to rectify the situation and the amounts owing shown were incorrect and I have not received a Termination Notice.

 

 

 

 

9. I disagree totally with Restons statement regarding refunds paid to the accounts. I am in possession of a letter, dated Monday 28 June 2010, from Mr J T Wild, stating that both accounts had been credited “with refunds of Payment Protection Insurance premiums”.

 

Anyone?

Should I be adding anything else ?

Edited December 14, 2010 by phatram

[gh2008]

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice.

The Claimant may not serve a second effective default notice in prescribed form. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

Can someone explain that in plain English please?

 

What do you understand of S87 & S88 of the CCA?

[phatram]

TBH honest, very little. I've been reading for years and it just doesn't sink in. Good job I'm a chef and foster carer eh?

[phatram]

Default notices

87. Need for default notice.

— (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,— (a)

to terminate the agreement, or

 

(b)

to demand earlier payment of any sum, or

 

©

to recover possession of any goods or land, or

 

(d)

to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)

to enforce any security.

 

 

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

88. Contents and effect of default notice.

— (1) The default notice must be in the prescribed form and specify— (a)

the nature of the alleged breach;

 

(b)

if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

©

if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

 

(2) A date specified under subsection (1) must not be less than [F1 14] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F1 14] days have elapsed.

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F1 14] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F2 and any other prescribed matters relating to the agreement].

[F3 (4A) The default notice must also include a copy of the current default information sheet under section 86A.]

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid. Annotations:

Amendments (Textual)

F1

Words in s. 88(2)(3) substituted (1.10.2006) by Consumer Credit Act 2006 (c. 14), ss. 14(1) , 71(2) (with Sch. 3 para. 10); S.I. 2006/1508, art. 3(2) , Sch. 2

F2

Words in s. 88(4) inserted (16.6.2006) by Consumer Credit Act 2006 (c. 14), ss. 14(2) , 71(2) (with Sch. 3 para. 10); S.I. 2006/1508, art. 3(1) , Sch. 1

F3

S. 88(4A) inserted (1.10.2008) by Consumer Credit Act 2006 (c. 14), ss. 14(3) , 71(2) (with Sch. 3 para. 10); S.I. 2007/3300, art. 3(3) , Sch. 3

[phatram]

Should I have received a Termination Notice or is that covered in the DN?

 

Just found this,

http://forums.http://forums.moneysavingexpert.com/showpost.php?p=53600973/viewtopic.php?p=115

 

Am I right in thinking that if the DN's are invalid there is nothing Restons can do about these accounts?

Edited December 14, 2010 by phatram

[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.