MBNA/Restons CCJ/ CO

[phatram]

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 only after the intervention of the Financial Ombudsmen Service.

 

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 or at least was at that time.

 

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 which resulted in MBNA refunding amounts of money to both accounts.

 

8. Since the FOS investigation MBNA/RESTONS have failed to contact me to discuss repayment of any amount I may owe.

 

 

9. 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 never received a Termination Notice.

 

10. 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”.

 

11. Restons have failed to provide me with evidence of how much I owe and there is no figure in their Witness Statement

 

Just a quickie for gh2008.

 

(2) If the applicant wishes to rely on written evidence in reply, he must –

(a) file the written evidence; and

 

(b) serve a copy on the respondent,

 

at least 3 days before the summary judgment hearing.

 

If they objected to my late WS, could I bring up the above ? My wife is sure I didn't receive their WS until after the original hearing was due to be heard. Proving that of course would be a different matter.

 

diddydicky said:

if i received that i would believe that you were running scared!!

 

re word it

 

 

Would you elaborate please?

[phatram]

Any advice for Thurs?

If costs are awarded against me,who gets the money, court or Restons?

[pt2537]

Restons

[phatram]

Thought so., just another way of ripping off the consumer.

[phatram]

Is there any way of stopping or lowering a costs claim if I lose?

[pt2537]

no the indemnity principle means that the winning party is entitled to be indemnified from their bill of costs by the loser.

 

the party is entitled to recover their reasonable costs, the court will assess the bill of costs to ensure it is reasonable, but this will not drop the bill dramatically, you need to be aware of this, the court may shave £10 here and there id suggest

[phatram]

Restons costs schedule has just arrived, £4046.51.

[pt2537]

yes, thats about par for the course

[phatram]

And a letter stating they will rely on AMEX v Brandon in the default notice argument.

[phatram]

yes, thats about par for the course

 

 

Shouldn't they have to prove it?

[pt2537]

Prove what?

 

Restons will serve a costs schedule of the costs of the work undertaken on behalf of the Claimant, this is what Restons are going to charge the Claimant

 

if you lose the indemnity principle comes into play, and you will face paying the costs the court deem reasonable

 

you can no more get therm to prove these costs as you can demand tescos tell you how much they buy Heinz baked beans for from Heinz. the price is the price, and that is the same hear really, the key is that the costs need to be reasonable

 

if you have written a number of letters to them then they can charge for reading, considering and replying to them

 

like wise their discussions with the claimant, and dealing with documents etc, are all chargeable.

 

you will get a chance to challenge the costs if they seem unreasonable

[frettful38]

And a letter stating they will rely on AMEX v Brandon in the default notice argument.

 

Brandon is yet to be heard again on the 3 Feb 2011, so it is not over yet for him

[pt2537]

Brandon is yet to be heard again on the 3 Feb 2011, so it is not over yet for him

no but the judgment that is standing is currently binding ont he lower courts as it was a High Court Judgment

[frettful38]

no but the judgment that is standing is currently binding ont he lower courts as it was a High Court Judgment

 

 

True pt, and I for one am not having high hopes for this one especially after such bad loses of a few High Court case judgments last year.

[diddydicky]

as i read the brandon judgement- the judge made much of the fact that several months passed before the agreement was terminated- during which brandon could have addressed the DN

 

I would personally be making a strong argument- in a case where the creditor terminated at or soon after the expiry of the DN that the circumstances are not the same

 

i would also argue (and point out to the judge that this forms part of the appeal ( i hope)- that the strict requirements of the act were put in place- even if it meant a windfall for the debtor- in the eider general interest- and that if a creditor sends a default notice in the prescribed form- as he is required to do.....in order that . that the debtor .not being as financially or legally sophisticated......is left in NO DOUBT as to what he must do and what the consequences are

 

thus if a debtor receives a statutory notice from the creditor stating that he must do this that or the other failing which the creditor WILL terminate the agreement- then it is reasonable ffor the debtor to think and believe that this is what will happen

 

faced with a deadline of 14 days to raise a large amount of cash- a debtor may well make a transactional decision to "throw in the towel" since he cannot raise such a sum in such a short space of time- he could also argue that he could not even arrange an appointment with a legal advisor in less than 4-5 days to take the advice which the leaflet sent with the DN contains

 

the proposition that the debtor should- in order to rescue the creditor from his failure to adhere strictly to the requirements of the consumer credit act...........use some hitherto unknown powers of clairvoyance- come to the conclusion that the the notice is in fact after all not an important notice that is not strictly adhered to.........or that he should second guess just how long the creditor might leave the termination- after he has clearly stated he will do upon the expiry if the statutory period of time- is- in my opinion utter poppycock.

 

If parliament had intended that the creditor might, at some point in the future- terminate the agreement or claim entitletment to the benefits of s87 - and the debtor must "best guess" whether he had sufficient time to do so- again is utter poppycock

 

 

brandon ruling or no brandon ruling - i would still argue the point on the facts of THIS case- not the facts of brandon.

 

the "ruling" as i said (IMO) was made by the judge on the basis that brandon had many months after the DN to remedy it before amex claimed entitlement to the benefits of s87

 

furthermore- it should also be argued that if a debtor made a payment after the expiry of the time limit stated in the DN- it is highly likely- indeed it is almost a foregone conclusion that the creditor- who after all is realy seeking to reclaim immediate payment of the whole debt............ would simply "seize" the funds submitted and STILL claim entitlement and say to the debtor "sorry chum"- you did not comply in time- but thanks for the downpayment- now pay us the balance which is legally due to us

 

- if the creditor has failed to give the statutory 14 days after service and/or has terminated before the 14 days- then as far as i am concerned i would want to drill that argument home hard in court since it would form the basis of an appeal iof the judge ruled against the will of parliament

[frettful38]

I believe a lot of people have been put off by the Brandon case but each case should be judged on its on merit IMO. As everyone is not like Brandon and everyone has different circumstances. The judge in Brandon believed that he suffered no prejudice, so may be that is a hint........if someone did suffer prejudice and can prove it then maybe that may be enough to get them on the right track.

[diddydicky]

I believe a lot of people have been put off by the Brandon case but each case should be judged on its on merit IMO. As everyone is not like Brandon and everyone has different circumstances. The judge in Brandon believed that he suffered no prejudice, so may be that is a hint........if someone did suffer prejudice and can prove it then maybe that may be enough to get them on the right track.

 

 

well the "prejudice" could/would be that....faced with 14 days and perhaps the earliest a legal advisor could be seen (try getting a CAB appt in 14 days!) and/or the fact that there is no way that the funds demanded could be raised within the 14 days (why else would the debtor be receiving a DN?) then he makes a "transactional" decision to throw the towel in...............thus he has been misled and misinformed by the creditor

 

LIP's should (IMO) make great store when arguing against a defective DN that the creditor has been pursuing the debt- often for maybe up to a year or so before he sends the DN and that it would not take a rocket scientist to both comply with the requirements of the CCA AND give a reasonable amount of time for the debtor to find the funds- to have actually given the debtor a longer period of time to remedy

 

(i notice that some lenders are actually now giving 28 days as a norm - to avoid argument as to whether the statutory amount of time has been given)

 

if the creditor intended not to actually claim his entitlement for say 1/2/3 months after the expiry of the DN- and told the debtor in the DN .........that he had 28/56/90 days to remedy the default - then the debtor may well have tried harder to try to arrange funds to remedy the DN

 

if the creditor serves the DN- does not terminate for 1/2/3/6 months or whatever- but continues to add charges and interest to the account - i would say that is predudicial to the debtor- since - as previously stated- if the creditor does not tell the debtor when he will terminate- and the debtor cannot be expected to Guess when- then an "open cheque" is presented to the creditor

 

if i was a creditor with a £4500 debt after a DN- and was so minded- i might deliberately avoid claiming the benefits of s87 until such time as i had racked up enough interest and costs to push the figure over £5000 and into some big legal expenses in court.- and that is not prejudicial to the debtor??

 

the act clearly intended that the DN was the "last straw" and that the creditor should be bound by what he tells the debtor within the DN- - which is usually- clear the arrears or we will terminate/claim early repayment.

 

this would then leave the debtor with negotiating a repayment plan on a debt on which no interst accrues(since the agreement is then ended) - or invites the creditor to sue him on the basis that he cannot afford the repayments that the creditor may demand-

 

if the creditor then waits another year before taking legal action- and tries to rack up the costs- when the debtor had made it clear that he could offer only what he could afford- then i think he could argue in court that any extra costs incurred since he invited the creditor to seek a ccj could be defended

 

bear in mind that the reviews currently underway are aimed at addressing this VERY point- that creditors must stop making debts worse when it is clear that the debtor is in difficulty and therefore this argument should find favour

 

as i said before- the act REQUIRES the creditor to leave the debtor in no doubt as to what is required/the consequences and IMO the same arguments as used in wilson ( windfall the the debtor- due to the creditors failure to comply with legistlation - ) should be claimed

Edited January 5, 2011 by diddydicky

[Gallahad]

Very clear and sensible DD IMO all we need now is a clear and sensible judiciary to marry up:-)

G

[diddydicky]

i agree

 

but my point is that if you roll over and take the view that because someone else lost on the point- therefore you may as well not bother............... well the one thing in life that is cast iron guaranteed- is that the judge wont offer to make the defence for you!!

 

wilson was house of lords if i remember so overrides the soon to be appealed appeal court decision and as i said the judge in brandon (correct me if i am wrong) based his decision on the DN on specific facts of that case that would not necessaily apply- and ceertainly not if the creditor has terminated before the time he allowed for remedy (as would be the case for example in MANY nationwide DN's

[phatram]

The court ordered that these two accounts should be heard as one case. One of them is much less than £5k (about£2k). What would the costs situation be if this was heard seperately?

[phatram]

Been to court, agreed to pay off what I owe at £100 a month, got £1000 off the costs. They may(will) go for a charging order but no other action as long as I make the monthly payments.

[diddydicky]

Been to court, agreed to pay off what I owe at £100 a month, got £1000 off the costs. They may(will) go for a charging order but no other action as long as I make the monthly payments.

 

if you have made this arrangement subsequent to them obtaining a ccj and this £100 offer was made with the court then the creditor CANNOT apply for a charging order unless you fail to comply with the order.

 

i suggest in that case you set up a SO to be paid at least a week before the due date to allow for banking delays

 

if they have no CCj then they cannot apply for a charging order and can only take a charge on your property with your consent

 

if you have an agreement in writing- the chances of them then revoking the £100 payments in order to take you to court and get a ccj and demaning higher payments would be IMO zero

 

if that helps

[phatram]

Oh well conned again !,

It was written into the judgement, I will post it up when court send me a copy.

[phatram]

Copy arrived from court and papers from Restons about Charging order. Similar papers sent to my wife. I will post up tomorrow. Dont trust Restons at all.

[diddydicky]

and you are right not to do so