StayingCalm vs Abbey with no CCA**WON**

[surfaceagentx20]

Oh golly. Even better!

 

So the droids at MBNA sent out a default notice which failed to give the necessary 14 days 'after the date of service' and then terminated the agreement. They just added 14 days to the date on which they produced it, failed to take account of the likely day on which it would arrive in the post and failed to add on 14 days after that. It's unbelievable that for the sake of a couple of days or so, they'd willingly risk trashing the agreement.

 

MBNA were always in difficulties by being unable to produce the agreement and their non-compliance with the s78 request, but this just kills them stone dead.

 

Me thinks that in addition to preparing for trial, pressure should be brought to bear via correspondence to persuade the goons to pull the plug on this nonsense. There is a hearing coming up in November. I would be inclined to write saying something like:

 

[1] the overwhelming obstacles presented by

[a] the non-production of the agreement and

the enforcement of the claim in circumstances where s78(6) applied, and

[c] the default notice which is self-evidently ineffective to enable them to become entitled to terminate and demand earlier payment,

 

plainly demonstrate that

 

[2] MBNA has no reasonable prospect of succeeding at trial.

 

Thus:

 

[3] MBNA should discontinue the claim forthwith.

 

[4] Should MBNA have failed to serve a notice of discontinuance by (the day before witness statements are due to be exchanged), then

 

[5] You will proceed to exchange statements and

 

[6] Without further notice or warning and possibly by solicitors appointed by you with authority to brief counsel, you will apply to the court for summary judgment, such application to be heard at the November CMC.

 

Something along those lines, fired off fairly soon, ought to cause MBNA to focus their mind rather sharply on the wisdom and economies of contuing to pursue this lame duck.

 

x20

[StayingCalm]

Hi x20

 

Please could you clarify re Disclosure as I am confused.

 

The Order stated:

 

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

I obtained from the court a 'N265 standard disclosure (4.99)' form for completion and also explanatory leaflet hmcs EX305 which states:

 

How do I disclose the documents?

You can use Form N265 (list of documents: standard disclosure). This form is available free from the court office. It contains notes for guidance which will help you complete it. It is important that you complete the form properly by listing the documents:

*you have and will let the defendant see ('inspect')

*you have but object to the defendant seeing; and

*you once had but do not have any longer.

If you object to the defendant inspecting any document, you will have to say why.

Once you have completed Form N265, you should send a copy to the defendant ('serve it') by the date given in the court's directions. The defendant must also prepare a list and send it to you within the same time frame.

What is inspection?

Inspection is when you make a request to look at the documents in the defendants list. This enables you to know more about the defendant's defence. You must make a written request to inspect any documents in the defendant's list...............................

...............If you have not disclosed or allowed inspection of a document, you may not be allowed to use it to support your case unless the court gives permission.

The way I understand this (and I have underlined what I feel are the important words both above and below) is as follows:

 

The order states standard disclosure by list as also defined in the EX305.

 

In the order both the words 'parties' and 'copies' are plural. I would therefore understand the word 'copies' to refer to the list (as per standard disclosure) and is plural because it refers to one copy from each side (ie 2 copies).

 

The EX305 also refers to serving a copy and receiving a list (ie a copy of the N265) thereby also being plural.

 

The EX305 goes on to explain what is required if inspection of the documents is required.

 

 

The order also stated:

 

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

This refers to disclosure, and does not say providing copies.

 

 

 

Any way, this is the way I understood the Order, and I hope I have explained what I am trying to say.

 

 

Please advise your thoughts on this and advise if I have come to the wrong conclusion.

 

Regards

sc

[StayingCalm]

In answer to your questions, this was all very new to me back in February and March, and although only a few months ago I now know so much more than I did then, thanks to CAG.

 

As MBNA had advised that they were unable to provide a copy of the agreement I did not seriously think they would go down the road of enforcement through the courts.

 

Also, as I had already received many threats of what action they might take, and which never materialised, I treated this as just another idle threat.

 

Regards

sc

[surfaceagentx20]

First, I think you understood the procedure very well and also may have been a minor victim of what I regarded as a badly worded order. The bad part of it was that it treated disclosure and inspection of documents as one act rather than two, more of which later. Even so and as I was saying, I don't believe you have or will come to any harm. Here's what it all means:

 

Standard Disclosure

Standard Disclosure is the disclosure of those documents in the possession of a party which go towards establishing an issue in the case, whether as the Claimant sees it or as the Defendant sees it. Issue-neutral documents are excluded fom Standard Disclosure.

 

Standard Disclousre is completed by two stages.

 

Act 1 - Disclosure by List

Disclosure by List is the act of revealing to the other litigants the identity or class of what documents are or once were in a party's possession. It is done by listing the documents, invariably in chronological order. The list is in three parts:

 

Schedule 1

Those documents which are in the party's possession and which the party does not object to produce

 

Schedule 2

Those documents which are in the party's possession and which the party does object to produce and says why

 

Schedule 3

Those documents which were once but are no no longer in the party's possession and where the party says what became of them.

 

Act 2 - Inspection

Is where the other litigants are permitted to see the Schedule 1 documents. The term is archaic and pre-photocopier. Today, inspection is achieved by one party saying to the other 'send me photocopies of documents 2, 8-14, 23 etc' or whatever. Beter still, a number of Commercial and TCC Judges are insisting that inspection be by pdf.

 

Like I said, the order was bad because it mixed the two up. It didn't even include the word 'inspection'. I only know that the Judge intended his order to provide for disclosure by list and inspection because the order goes on to direct exchange of witness statements which would have been impossible or unfair if parties were required to exchange witness statements in circumstances where they hadn't inspected the other litigants documents.

 

Does this help?

 

x20

[StayingCalm]

Thanks x20

 

I've obviously got lots and lots to learn and would be lost without this site.

 

So where do we go from here? You sugested writing to Restons and including info from my PM to you. Would you be able to assist with this as I am not sure the best way to go about it?

 

Not sure if I have mentioned it before but there must be at least £500 of default charges included in the sum claimed. Can this also be used, if so I can workout an accurate figure.

 

Many many thanks for your help x20

sc

[The GodMother]

X20 just a quick question does the deafult notice need to be 14 days from the date produced or 14 days from the date of service?

[tinkerbell20]

from date of service

[pt2537]

a default notice must give you no less than 14 days , clear days, to remedy the default before the creditor can become entitled to terminate the agreement

[surfaceagentx20]

Thanks x20

 

So where do we go from here? You sugested writing to Restons and including info from my PM to you. Would you be able to assist with this as I am not sure the best way to go about it?

 

sc

 

Sure can. Be happy to. PM me if I'm not back to you with a draft in a few days.

 

x20

[surfaceagentx20]

X20 just a quick question does the deafult notice need to be 14 days from the date produced or 14 days from the date of service?

 

Tinks said it.

 

x20

[The GodMother]

thanks so if a company wrote it on a friday and did not post it till the monday and u got it the next day thats not 14 days?

[tinkerbell20]

thanks so if a company wrote it on a friday and did not post it till the monday and u got it the next day thats not 14 days?

 

 

It is deemed served two days after posting. Thats why you must keep the envelopes because that should show the date it was actually put into the letterbox.

[The GodMother]

yeah it is a prepaid envelope with does not show a date on it. the business class mail ones. they printed it on the friday giving me 14 days they have admitted they did not send it till the monday and i got it the tuesday.

[tinkerbell20]

yeah it is a prepaid envelope with does not show a date on it. the business class mail ones. they printed it on the friday giving me 14 days they have admitted they did not send it till the monday and i got it the tuesday.

 

 

If they have admitted not sending it to the Monday then service is deemed to be on Wednsady - so do your maths if that leaves you less than 14 days to remedy the default notice then it is invaild.

[The GodMother]

Thats what i thought but they are saying it is 14 days from the day the printed it.

[surfaceagentx20]

OK, here's a draft of that letter I was thinking about:

 

Dear Sir,

 

Re: MBNA v xxxx

 

As you are aware, this case is very shortly due to progress to the stage of exchange of witness statements.

 

Before taking that step and incurring costs which I predict will be wasted, it seemed oportune that I should give you one final chance to withdraw from the proceedings. I am giving you this chance since it is self evident that (you / your client) has no reasonable prospect of succeeding at trial.

 

The facts of this case are clear. They are that the bank

 

proceeded to enforce the agreement by serving a default notice (more on which below) after having received my request dated 25 February 2008 and made under section 78(1) of the Consumer Credit Act 1974 (the Act) and without complying with that request, contrary to the prohibition on enforcement contained in section 78(6) of the Act

 

delivered a default notice which was ineffective for the purpose of subsequently giving rise to any of the entitlements contained in section 87(1) of the Act. As you will see, the default notice was dated 25 March 2008 and was later served by post. It required compliance with it by 8 April 2008. It will be readily apparent to you that the service of the notice did not provide to me the requisite minimum 14 days after service of the notice within which to comply and in consequence that the bank

 

terminated the agreement and made demand for payment when it had no entitlement to do so by reason of the provisions of section 87(1) of the Act.

 

is and will be unable to produce an admissable copy of the relevant agreement in evidence at trial.

 

In the circumstances you are required to file and serve Notice of Discontinuance of the proceedings not later than midday Friday 12 September 2008.

 

Should you fail to serve me with a Notice of Discontinuance as required I will proceed to exchange statements and thereafter and without further notice or warning and possibly by solicitors appointed by me with authority to brief counsel, I will apply to the court for summary judgment, such application to be heard at the November CMC.

 

This letter has been delivered to you on an open basis and in pursuance of a 'cards on the table' approach to litigation. If you should contend that my reasoning is flawed and there are good grounds to suppose you / your client will succeed at the trial of this case, you are required to outline those grounds in order that I might further consider my position.

 

Should you fail to respond to this letter as I have suggested, I reserve the right to refer to it when the matter of the costs of this case come to be decided.

 

I look forward to hearing from you.

 

Y/F

 

x20

[StayingCalm]

Thanks x20, that sounds great.

 

Should I also send a copy to MBNA?

 

However, what happens if Restons don't respond by midday on Friday the 12th, regarding exchange of Witness Statements by 4 pm on the same day?

 

In any case could you please explain the procedure for 'simultaneous exchange' of statements.

 

One other point, regarding the contents of the PM I sent to you on 5th September, should this be mentioned now or best kept in reserve?

 

Many many thanks for you help

 

sc

[wealthy]

subbing

[FunkyFox]

Hi Staying Calm, I'm subscribing to your thread as it seems we find ourselves in similar circumstances and the advice in your thread from x20 is very useful. I am no longer so overwhelmed by the fast track directions etc. Sometimes all we need is a helping hand!

 

Good luck and I'll be watching with interest.

 

FF

[StayingCalm]

Thanks Foxy,

 

Together we are all so much stronger.

 

Sent the letter suggested by x20 yesterday by SD to Restons, so they should be receiving anytime now.

 

However, what I am concerned about is if Restons don't respond by midday tomorrow, as witness statements are due to be exchanged by 4pm also tomorrow.

 

x20, I would be very grateful for some guidance on how to proceed in these circumstances.

 

Many thanks

 

sc

[surfaceagentx20]

SC,

 

I checked back over the directions order and it requires mutual exchange of statements by 4:00pm tomorrow. You probably knew this.

 

I do not know whether you have begun or finished working on your witness statement. Either way, I suggest you make a start and get it finished today. I think you have seen the thread in which I produced a draft witness statement for someone. Adopt that stateemnt if it will assist you, amending dates, sums and so forth to suit the particulars of your case. If you stumble on this, let me know.

 

Meantime on the exchange of statements front, mutual means 'simultaneous.' What I suggest you do, if you've got the stomach for it, is ring up Restons. Here's the gist of that conversation.

 

SC: 'Hi, its StayingCalm here. You got my letter? Can I expect the Notice of Discontinuance by tomorrow?

 

Re: 'Nope'

 

SC' 'OK then, we're due to make simultaneous exchange of witness statements by 4:00pm tomorrow. I suggest we do that by email. By that I mean I will send you a scan/pdf of my evidence to your email address by say, 3:30 tomorrow on the basis you will do the same to my email address. We can put hard copies on the post to one another. That OK? If that's not OK, please tell me why and tell it me slowly coz I'm writing it down. Please give me your email address in any event.

 

Re: That's not OK.

 

SC: Please confirm to me now that you will be complying with the order by posting by (first class post) your witness evidence to my address. If you are unable to confirm this to me now I will treat your unwillingness as tantamount to saying you will not be able to make exchange of witness statements in accordance with the order. Accordingly, I will not release my witness evidnce to you until you state to me that you are in a position to make mutual exchange of witness statements. I will confirm this conversation in writing to you as soon as practical and may refer to it in any later application I may make to the court. You already have a substantial statement of case from me in the form of my Defence which may stand as my evidence in any event.

 

Have a nice day.'

 

You got my drift there SC?

 

x20

[StayingCalm]

Thanks x20

 

I have sent an e.mail to Restons and awaiting a reply.

 

I am starting on my statement and will post later.

 

sc

[StayingCalm]

Restons have replied agreeing to exchange statements by e.mail tomorrow and posting numerous exhibts by 1st class post also tomorrrow.

 

They will reply to my letter dated 10th Sept. shortly.

 

I am working on my statement and would appreciate some assistance

 

sc

[surfaceagentx20]

OK, that's fine.

 

Post up or PM me what you've done so far.

 

x20

[StayingCalm]

Right here it is. I hope it is not too bad.

I, (StayingCalm) OF (ADDRESS)

 

STATE AS FOLLOWS

1 I am the Defendant.

 

2 In the course of this witness statement I shall refer to the existence of documents, true copies of which are exhibited hereto at exhibit (witness initials 1)

 

3 On 25th April 2008 the Claimant commenced this case in which the Claimant seeks to enforce certain provisions of an agreement bypayment of the overdue balance due from the Defendant under a contract dated on or about 27/03/1998 in the sum of 11921.30 inclusive of interest to the date of this summons at 8% per annum from 14/04/08 to 24/04/08

PARTICULARS a/c no xxxxxxxxxxxxxxxx

DATE ITEM VALUE

14/04/2008 Default Balance 11895.23

Post Refrl Cr NIL

24/04/2008 Interest 26.07

TOTAL:- 11921.30

Together with;- Interest pursuant to s69 County Courts Act 19 at the rate of 260.72 pence per day to the date of Judgment or sooner payment.

Court fee 190.00

Solicitor’s costs 100.00

The agreement is an agreement regulated by The Consumer Credit Act 1974 (The Act).

 

4 On 26th February 2008 I delivered to the Claimant a request made pursuant to the provisions of section 78(1) of The Act. A copy of my request is now shown and produced at page (page number) of my exhibit (witness initials 1).

 

5 On 26th February 2008 I also delivered to the Claimant a request for all the data relating to my account made pursuant to Section 7 of the Data Protection Act 1998. A copy of my request is now shown and produced at page (page number) of my exhibit (witness initials 1).

6 On 17th March 2008 I wrote to the Claimant setting out that they had failed to comply with my statutory request made pursuant to The Act 1974 (Exhibit xxx)

7 On 19th March 2008 the Claimant replied to my subject access request made under the Data Protection Act 1998 stating that they did not retain the signed credit agreement for my account, they did supply some information but not sufficient amounts to be considered compliance with the S7 Data Subject Access Request. (Exhibit xxx)

8 On the 26th March 2008 I received a document purporting to be a default notice, it is averred that the document is not compliant with The Act or Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and as a result has no effect in law. (Exhibit xxxx)

 

9 On or about 28 Mar 2008 I received a letter dated 26/03/2008 in reply to my complaint letter (referred to in point 6) and full response was promised by 15 April, but no mention of CCA request. (Exhibit xxxx)

 

10 On the 15 April 2008 I received a Letter Before Action from Reston’s Solicitors which I found rather bizarre since the account was subject to a dispute and awaiting a response as promised in point 9. (Exhibit xxxx)

11 I did not reply to the letter in point 10 because after the Claimant had stated there was no agreement, I thought it was just another idle threat, of which I had received so many.

 

12 On the 19 April 2008 I received further letter re my complaint, full response was promised by 14 May 2008. (Exhibit xxxx)

 

13 On the 25th April 2008 I received this claim, which was deeply upsetting as the claimant or its agents had totally ignored my correspondence and forged ahead with litigation which it is averred was unnecessary, and furthermore not permitted as the claimant has failed to follow statutory procedure laid out in The Act and the regulations made under it and furthermore

 

14 It must be noted that to date, the claimant has not supplied a copy of the credit agreement as requested in point 8. The Act clearly sets out the consequences of non compliance in particular section 78(6) states

(6) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement

 

15 Furthermore the claimant ignored my dispute and pursued an active campaign of harassment against me, they contacted or tried to contact me by telephone on a great number of occasions over a period of several months, usually several times a day and also continued to contact me in writing. I attach a sample of three of these letters (Exhibits: xxx,xxx,xxx) This is in direct contravention of the Office of Fair Trading's Guidelines on debt collection

16 At trial I will assert by reference to the documents and by submissions to the court as to fact and law, that the documents relied upon by the Claimant are inadequate for the purpose of demonstrating that at the date of the commencement of this case the Claimant was not entitled to any of the relief sought.

 

I BELIEVE THAT THE CONTENTS OF THIS STATEMENT ARE TRUE.

 

(Signed)

 

(Dated)

 

 

 

I have not mentioned any of what they disclosed in their disclosure or

the contents of the PM I sent to you on 5th September