StayingCalm vs Abbey with no CCA**WON**

[bazaar]

Hello Staying Calm reading this with interest and good luck by the way.

Just my two penneth here, mainly for those that have asked previously why Restons would persue this. To Restons this is all a game, they get paid regardless, 1 way is if you hadn't disputed anything, they win by default. 2nd way is that the banks and card companies have insurance for this type of thing, its the same in USA, ( I have experience of this).

They keep pushing until it actually gets to court, because they are laughing all the way to the bank. just think of all those hours they claim from the insurance for their 'Work'. My experience with the smarmy lawyers in the states is that, if you are a good litigant, and I mean good as in you know your rights, they will think twice before court. If you're bad, IE abusive, get wound up easy etc. they will try it on and make you look bad. It worries them no end if you keep the poker face and seem disinterested in their claims. Restons have no CCA in your case, they claim you have gotten information from the internet, so what. before the internet there were books and word of mouth etc. Thats how the so call solicitors at restons have got their qualifications. They are on to a loser, but will squeeze every penny out of this before crawling back under their little rock. Damn good luck to you:-D

[StayingCalm]

Thanks for your support bazaar.

 

What I am not sure about is if I have to send the N265 form as well. From Paul's post No 71 I would assume that I have to, so I will just fill it in and send it also.

[pt2537]

to answer the question, yes, it is what the judge ordered

[StayingCalm]

Thanks Paul

 

Well its in the post SD to Restons today. How long do I have to wait to see if they also comply, and what will be my next move if they don't?

 

Bazaar's comments are interesting, and make sense, especially if MBNA have insurance to cover their costs.

 

Thanks for everyones support. It sure helps to know you are not on your own.

 

SC

[The GodMother]

If restons dont comply u need to call the courts ad find out procedure.

 

Personally i would call the afternoon of the day they have to comply by and AFTER ur post would normal have or has arrived.

 

I would also be going for a strike out of the case if the original orders were made as unless orders.

[StayingCalm]

Well the post arrived today, one thick package and a separate letter, both from restons.

 

The letter is headed WITHOUT PREJUDICE and states Disclosure Statement under separate cover, and that their client is mindful of the substantial costs of proceeding to trial and would like to explore the possibilities of a negotiated out of court settlement.

 

Subject to an agreed total amount to pay in agreed instalments, on the basis of a consent order and no CCJ, offer available for 14 days.

 

 

Will post details of the package when I have had time to go through it, but they do state on their DS that the account was acquired from Abbey Nat in March 2001, and that they are unable to access documents issued prior to this date (including the original Credit Agreement)

[The GodMother]

hang on have you paid anything towards this account between march 01 and now?

[StayingCalm]

Yes it was up to date until late 2007

[The GodMother]

dam.

 

if you were not u could claim SB

[StayingCalm]

Right this is what they have disclosed and sent

 

1 Credit Card Application pro-forma copy

This is a very poor copy of 4 pages of an Abbey National Application form, with no details filled in (Nov 97 handwritten at top)

 

2 Credit Card Agreement pro-forma copy

Also a poor copy of an AN Agreement, 1 page, blank as above, Nov 97 printed at bottom

 

3 Terms and Conditions

4 pages of T & C's, undated, showing default charges of £12

 

4 Statements of Account

Copies of statements dated Nov04 to April 08

 

5 System Notes

31 pages of computer printed notes

 

6 to 15 copies of letters

These are all copies of letters which were all attached to my defence

 

 

The Disclosure Statement states

' I have had the documents numbered and listed below, but they are no longer in my control'

'All originals of documents as listed above are copies'

[The GodMother]

rite so the blank application form and blank cca is suspose to prove what? they can get blank forms?

 

T&Cs showing Deafult charges of £12.00 are NOT the originals. The £12 charges came in 2005.

 

What about statements from b4 then? u can ask for them and ask the courts to demand they hand them over.

 

these system notes. What sort of things are they? just a breif idea would help

[pt2537]

The OFT carried out an investigation into Credit Card Charges and this was done in document called

 

OFT's action on credit card default charges

5 April 2006

 

and can be found here http://www.oft.gov.uk/shared_oft/reports/financial_products/oft842a.pdf

 

i hope this helps

 

Regards

 

Paul

[The GodMother]

Oh rite i thought it was earlier than that. Sorry my fault.

 

Still does not prove anything tho.

[StayingCalm]

Sorry for slow reply.

 

System notes date from 11th June 04 and just list all the phone calls they have tried to make to me, and details of the occasional one that I have answered. Also default charges etc applied to the account, and summaries of letters sent and received re complaints etc.

 

I will request more Statements, but their Disclosure Statement states that they are unable to access documents prior to March 2001, which was when they acquired Abbey Nat.

Edited August 22, 2008 by StayingCalm
corrected date

[The GodMother]

well thats just handy. i thought money laundering regs stated thing had to be kept for 6 years AFTER acc closed.

[StayingCalm]

Well, just received another letter from Restons, seems they do not understand the Court order (post 38 ) dated 5th August 2008!

 

We acknowledge receipt of your N265 standard disclosure dated 19 August 2008.

 

We would point out, however, that the Order dated 05 August 2008 provides that copies of documents upon which you rely (as listed in the disclosure statement) should also be provided.

 

Accordingly the Order further provides that 'a defaulted party will not be permitted to rely on any document of which disclosure has not been given pursuant to this Order'

 

Do you think I need to reply and inform him that by serving copies refers to the list and not the documents??

 

I do hope I am right, it did give me a fright when I first read the letter.

[citizenB]

UPDATE

 

In July I received an Allocation Questionnaire from my local court which I completed and returned.

 

 

I have now received the following:

 

Notice of Case Management Conference

 

This will take place in November and 30 minutes have been allowed. Also a Note saying 'This case may be released to another Judge, possibly at a different Court'

 

Notice of Allocation to the Fast Track

 

DEPUTY DISTRICT JUDGE XXXXX XXXXXXX has considered the statements of case and allocation questionaires filed, and allocated the claim to the fast track.

 

The judge orders that you and the other parties prepare for trial as follows:

 

There be standard disclosure of documents by list between the parties by serving copies together with a disclosure statement by 4 pm on 20th August 2008.

 

A defaulting party will not be permitted to rely on any document of which disclosure has not been given pursuant to this order.

 

Each party shall serve on every other party the statements of all witnesses as to fact upon which he intends to rely at trial. There shall be simultaneous exchange of such statements no later than 4 pm on 12th September 2008.

 

The witness statements shall stand as evidence in chief at trial.

 

Evidence will not be permitted at trial from any witness whose statement has not been disclosed in accordance with this order.

 

No expert evidence being necessary, no party has permission to call or rely on expert evidence.

 

The matter be listed for Case Management Conference before the District Judge on xx November 2008 at xx:xx (time estimare: 30 minutes).

 

Costs be in the case.

 

Any party affected by the terms of this order may apply to have it set aside, varied or stayed within 7 days from service.

 

 

PLEASE COULD I HAVE SOME ADVICE AS I HAVE NEVER DONE THIS BEFORE AND I AM NOT SURE WHAT IS REQUIRED, and list of documents has to be served by 20th August.

 

sc

 

Staying calm, I have brought post 38 forward so peeps dont have to scroll back.

[StayingCalm]

Hi all

 

I now need to prepare my Witness Statement to exchange by next Friday.

The Court Order dated 5th August stated the following

Each party shall serve on every other party the statements of all witnesses as to fact upon which he intends to rely at trial. There shall be simultaneous exchange of such statements no later than 4 pm on 12th September 2008.

How does 'simultaneous exchange' work?

Does it mean that I have to agree with Restons so that we both post copies at the same time?

Also I have no idea what is required for a Witness Statement, and would be very gratefull for some help to prepare this.

Regards

SC

 

 

 

[citizenB]

Staying calm, here is an example and explanation of a Witness Statement posted by Surfaceagentx20. That might help you. I am not sure about the simultaneous exchange of documents. I understand what it means but not how you would go about doing so.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/157926-multi-track-help-statement.html?highlight=Witness+Statement#post1688609

[StayingCalm]

Thanks citizenB

 

I have have had a quick look and will study it later.

[surfaceagentx20]

OK, lets see if I've got the essential of this case clear.

 

Background

In March 1998 (that's 98 not 08), and why when I write that - I won't therefore repeat it - does it lead to that silly thing above interupting me?, any way) you entered into a credit card agreement with MBNA.

 

On 25 February 2008, you delivered a request for all that which the bank is obliged to provide under s78 of The Act. On 17 March 2008 you wrote again complaining your request had not been answered and on 19 March 2008 in supposed compliance with the s78 request, you were advised that MBNA were unable to provide a copy of the agreement, and were provided with a statement of transactions for the previous 6 years and a set of terms and conditions.

 

On 25 March 2008 you received a default notice dated 25 February 2008. The default notice required compliance by 8 April 2008 (ie giving less than 14 days for compliance).

 

On 14 April 2008, MBNA's solicitor delivered a letter before action. In effect, the LBA may be treated as good evidence that on or before 14 April, MBNSA terminated the agreement.

 

On 25 April 2008 these proceedings began by which MBNA seek £11921.30 and interest from 14 April 2008 (reinforcing my view that this date is the date of termination).

 

The Defence and Case Management

A CPR 18 request for Further Information was sent on 28 April 2008. MBNA refused to answer it. In my view request number 1 was reasonable to include in a Part 18 request whereas the remainder was not. In my view the remainder are properly the subject of a Data Protection Act request.

 

At last two defences were prepared in draft. Both massive and contained a heap of information which I will deal with when I come on to deal with the witness statement. Both pleaded a load of stuff the essential aspects of which in my view were:

 

[1] non compliance with the s78 request, whereby the enforcement of the agrement was precluded, and

[2] failure to serve a default notice complying with s88.

 

I am not sure the aspects pleaded regarding the alleged failure to include in the default notice the words: "IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH and IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY], was correct. The default notice does include these words.

 

In any event, the Defence was filed on 28 May 2008.

 

In July 2008 an AQ was filed and by August notice of a CMC was received fixing the hearing for November 2008 and in the meantime diecting standard disclosure by 20 August and exchange of witness statements by 12 September 2008.

 

Disclosure

Disclosure proceeded, to include disclosure of case law, statute and other regulatory instruments and other work, the same not strictly being documents for standard disclosure. There was an error in compliance in that contrary to the order, merely the list was delivered rather than the list and the copies refered to. This type of order, combining disclosure with inspection is becoming increasingly more common and in my view, bad practice where documents may be substantial in volume. Be that as it may, that was the order.

 

What I would have dearly liked to have seen in your disclosure was the envelope in which the default notice came to you. Unfortunately it has not been disclosed. If it has been retained and may be carries a date, disclose it. If not, it will be necesary to provide evidence in a witness statement about the date when it was received.

 

I am not clear as to whether there has since been compliance in the sense of whether accompanying the disclosure list there were copies of the documents refered to. In any event compliance in this way may not be essential either because:

 

[1] the documents are documents which have been copied to MBNA in any event by reason of their production as exhibits to the Defence, and

[2] they are documents which are disclosed by MBNA in their disclosure.

 

Remember, the order simply said

'A defaulting party will not be permitted to rely on any document of which disclosure has not been given pursuant to this order.'

 

You are not prohibited from relying on a document which has been disclosed on a day prior to 20 Augsut 2008 and you are not precluded from relying on a document disclosed by MBNA prior to that date. Pursuant to the order, MBNA disclosed the documents you disclosed by the Defence.

 

Witness Statements

CitizenB refers to a post I made about preparing a witness statement. The first thing to do is identify who can say what about which issues in the case. Most of the issues, if not all, can be covered by you. My major concern is to show by witness evidence that the default notice was served on you in a way which did not leave you with 14 days to comply with it and that in consequence, MBNA were not entitled to terminate in a way which enabled them to lawfully demand earlier repayment.

 

You can say when the default notice was received. Is there anyone else? A spouse, friend etc? Think hard how you can have your evidence about this backed up independently.

 

Also, because you can expect to be cross-examined on this essential feature, I recommend some form of explanation in your witness statement covering:

 

[1] why you did not write to MBNA when the default notice arrived saying you objected in light of the fact

[a] your s78 request was outstanding and

it was dated much erlier than the day on which it had arrived and had not given 14 days or the number of days MBNA intended to give you for the purpose of compliance, and

 

[2] why you did not write to Restons when the LBA arrived stating the same or raising any observations or objections of this kind until the Defence was pleaded.

 

I think I may know the answer already but it would be wrong to put words into a witnesses mouth.

 

Perhaps you could come back with further information along the lines I am trying to prise from you and we can move along a step further.

 

x20

Edited September 5, 2008 by surfaceagentx20

[pt2537]

 

 

I am not sure the aspects pleaded regarding the alleged failure to include in the default notice the words: "IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH and IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY], was correct. The default notice does include these words.

 

not often that i do disagree with you x20 but here i must,

 

it is clear from the wording of the Act and furthermore the regulations (Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)) that the wording must be reproduced in the form as laid out in the regs, and furthermore it is clear that no exceptions are permitted.

 

there is case law supporting this and furthermore Halsburys Laws and Guest & lloyd and Goode CCLAP all concur that it is not de minimis for the underlining of key words to be left out of a default notice and if that is the case that the words are left out, the notice is defective

 

I dont mean to correct you but this is something i have pleaded successfully many times

[surfaceagentx20]

Hi PT, I'm always happy to be corrected epecially online where you can't see how red-faced I go.

 

Any way, the best bit of all is I agree with what you say is the law. It was just that as I studied the default notice which StayingCalm received, I thought it did say the right words with the right underlining and in the right order and so on. I must have missed something.

 

Cheers

 

x20

[pt2537]

Hi PT, I'm always happy to be corrected epecially online where you can't see how red-faced I go.

 

Any way, the best bit of all is I agree with what you say is the law. It was just that as I studied the default notice which StayingCalm received, I thought it did say the right words with the right underlining and in the right order and so on. I must have missed something.

 

Cheers

 

x20

Hi x20

 

Ah i see what your saying,

 

its actually interesting as my copy of the Regs in the hard copy form has the words in bold and underlined, but the copy on Lexis doesnt

 

quite confusing isnt it

 

law eh, great fun

 

regards

 

Paul

[StayingCalm]

Thanks X20 for your time and observations.

 

First just a quick reply to say you have found a mistake in my first post which has not been noticed until now. The Default Notice was dated 25th March 2008 and not February as stated, and was received on 26th March 2008, so this is good news.

 

Will come back later with further info.

 

SC