StayingCalm vs Abbey with no CCA**WON**

[surfaceagentx20]

SC,

Don't bother with an application for summary judgment at this stage. If you issued one tomorrow say, it wouldn't be heard by Thursday. There has to be 21 days intervene betwen the issue of the application and the hearing.

 

Also, hold off sending the letter in post no218. It was more for the amusement of CAGers. It's clear to me they do not intend to back down so winding them up and making them more determined is not in your best interests. Let them think they've got the upper hand and you don't have any answers.

 

The CMC is to check what else might be required in terms of case preparation before the case goes to trial. In this case there has been disclosure of documents and exchange of witness statements. The bank has not disclosed a true copy of the agreement and seeks to rely on a re-construction. The bank relies on just one witness who deals with the mater of the agreement at pragraph 8 of the witness statement and relies on what is termed a 'pro forma' agreement 'which would have been in the form signed by the defendant', but without going on to disclose on what basis this witness knows that the agreement was signed and signed in this form.

 

The bank's witness does not deal with its failure to supply a copy of the agreement prior despite the section 77/78 request. The bank began these proceedings whilst it was in a state of non-compliance with that request and after service of a DN which failed to give 14 days after service for the debtor to comply. Paragraph 4 of the bank's witness's statement identifies the ineffective DN Further, the bank appear to be coming around to the idea the default notice is defective and are speaking in terms of an ability to serve a second default notice because the agreement has not terminated. Yet in its claim the bank seeks nearly £12K and in its DN sought less than £1500.00 arrears. clearly therefore the bank did terminate and claim early repayment, such things being prohibited without service of an effective DN. The bank want their cake and eat it.

 

From your point of view there are no further directions required it seems to me. What else could you want? The bank's witness evidence is weak on the agreement. It does not even mention the failure to provide a copy of the agreement prior to beginning proceedings and the witness very considerately exhibits the defectvie DN. I don't think the bank could have made it any worse for themselves. The witness will be your to maul in cross examination.

 

As for directions at the CMC, the Judge will be looking to list it for trial. How long will it last? About half a day in my opinion. You will need to tell the court what dates to avoid for a trial and the Judge will make a direction requiring the bank to produce an agreed trial bundle, possibly a chronology and for the parties to file skeleton arguments so many days prior to the start of the trial.

 

x20

[StayingCalm]

Hi all

 

Thanks so much for all the help x20 and the detailed analysis for the CMC. Also for the much appreciated support CB, CCM & Tinks.

 

However, new development, just noticed an e-mail from Restons late this pm.

 

 

WITHOUT PREJUDICE SAVE AS TO COSTS

Dear Sir

Re: MBNA Europe Bank Ltd v. Yourself

We refer to our exchange of correspondence.

For the reasons explained previously we firmly believe our client will

not be prevented from commencing a second set of proceedings in respect

of the full outstanding balance and your other arguments relating to

alleged non- compliance with the Consumer Credit Act 1974 will not

succeed.

The Bank is prepared to negotiate an amicable settlement in respect of

the full outstanding balance - which it will pursue if the matter cannot

be resolved.

Do you have any sensible settlement proposals to make to the Bank - our

client would obviously not be interested in a nominal settlement.

Yours faithfully,

 

Could this be their last attempt for a settlement before discontinuing ??? Probably wishfull thinking. Arr never mind !!!

[The GodMother]

NEVER say never.

 

It could be but.....

[surfaceagentx20]

I am not impressed with the letter. It merely invites your proposals. Much like their non-descript DNs, it does not specify a date by when they would like you to comply and of course the bank does not make a Part 36 offer of its own though it might have done if it was genuine in its desire to settle but at the same time confident about its case.

 

It's garbage save to the extent it demonstrates they sense they're on the slippery slope to ruin.

 

Anything else I can do for you before the CMC?

 

x20

[StayingCalm]

Thanks x20.

 

I assume there is no point replying to this e-mail.

 

Do I need to take any documents with me to this CMC.

 

In the e-mail they seem to think they could commence a second set of proceedings, thus knowing they can't succeed this time. Would they have to ask the Judge to be able to do this?

 

Like wise if they want to issue a new DN, and the Judge agrees, do I need to object, or go along with it and argue it at the trial.

 

What actually terminates the agreement after a defective DN has been issued. Would any demand for for the full balance automatically terminate it, or is it only if a court claim is commenced?

 

sc

[surfaceagentx20]

SC,

I wouldn't bother responding to the latest email.

 

I would take all your papers to the court hearing.

 

If the case was decided in your favour that would be the end of it and the claimant could not bring a second set of proceedings on the 'res judicata' rule. If the other side discontinued the proceedings and then sought to begin second proceedings they would need the court's permission under CPR 38.7.

 

The Judge's agreement is not a pre-requisite for the other side to deliver a second DN. It is entirely a matter for them and the court will not give or refuse to give permission to serve a second DN. What I would say is that if the other side served a second DN and then sought to rely on it in the proceedings they would need to amend their claim so as to make reference to it. However, and this is what is causing the other side to prevaricate in serving a second DN, because, if a second DN was relied upon, the date of service of it would post-date the date on which they terminated the agreement and the date upon which they began the proceedings. In short the essential ingredients of a cause of action (ie service of a valid default notice followed by a failure to comply with it on a day prior to the beginning of proceedings) would be lacking. You have to get your horse before your cart.

 

Whether a DN is defective is a question of fact. The termination of an agreement by the creditor occurs where the creditor does something which would be consistent with his termination of it. Serving a notice of termination is one example (An 'express' example). Demanding any of those things which might only be demanded if an effective DN had been served followed by non-compliance (whether or not the DN was truly effective in law) would be an 'implied' example as would commencing proceedings for any of those things.

 

x20

[StayingCalm]

SC,

 

 

I would take all your papers to the court hearing.

 

If the case was decided in your favour that would be the end of it and the claimant could not bring a second set of proceedings on the 'res judicata' rule.

 

x20

 

 

Hi x20

Is this a possibility at the CMC ? or are you refering to the full trial.

 

sc

[tiokim]

bump

[surfaceagentx20]

The court is unlikely to decide the merits of the case at the allocation hearing / CMC tomorrow. However, if the otherside don't show up, you could invite the court to strike out the claim though a strike out for non-attendance would not be a decision on the merits and the other side could apply for the claim to be restored. On the other hand, if the other side don't show up you could address the cour as to the absence of merit and invite the court to strike out that way. You'll have to play it by ear as we are crystal ball gazing about whether they will attend.

 

I was thinkng not just about a trial but any hearing at which there was a decision on the merits of the case.

 

x20

[Josie8]

SC,

I wouldn't bother responding to the latest email.

 

I would take all your papers to the court hearing.

 

If the case was decided in your favour that would be the end of it and the claimant could not bring a second set of proceedings on the 'res judicata' rule. If the other side discontinued the proceedings and then sought to begin second proceedings they would need the court's permission under CPR 38.7.

 

The Judge's agreement is not a pre-requisite for the other side to deliver a second DN. It is entirely a matter for them and the court will not give or refuse to give permission to serve a second DN. What I would say is that if the other side served a second DN and then sought to rely on it in the proceedings they would need to amend their claim so as to make reference to it. However, and this is what is causing the other side to prevaricate in serving a second DN, because, if a second DN was relied upon, the date of service of it would post-date the date on which they terminated the agreement and the date upon which they began the proceedings. In short the essential ingredients of a cause of action (ie service of a valid default notice followed by a failure to comply with it on a day prior to the beginning of proceedings) would be lacking. You have to get your horse before your cart.

 

Whether a DN is defective is a question of fact. The termination of an agreement by the creditor occurs where the creditor does something which would be consistent with his termination of it. Serving a notice of termination is one example (An 'express' example). Demanding any of those things which might only be demanded if an effective DN had been served followed by non-compliance (whether or not the DN was truly effective in law) would be an 'implied' example as would commencing proceedings for any of those things.

 

x20

 

 

so does this mean that if the original DN is defective the claimant can lawfully discontinue proceedings , reissue a new DN & then issue a fresh claim?

[StayingCalm]

Thanks x20

 

SC,

 

Whether a DN is defective is a question of fact. The termination of an agreement by the creditor occurs where the creditor does something which would be consistent with his termination of it. Serving a notice of termination is one example (An 'express' example). Demanding any of those things which might only be demanded if an effective DN had been served followed by non-compliance (whether or not the DN was truly effective in law) would be an 'implied' example as would commencing proceedings for any of those things.

 

x20

 

 

Would a 'Formal Demand' for the outstanding balance on an account also be an 'express' example of termination? (not applicable to this thead)

 

 

By 'implied' I assume this is because it is not actually mentioned in the CCA 1974. If this is the case, and the Judge can not see it in black and white, will he/she maybe not agree that the agreement has been terminated?

 

 

If by chance the other side does not turn up, am I able to refer to the recent correspondence between Restons and myself. Most, but not all, Restons letters are written 'Without Prejudice', am I allowed to mention these, or am I not allowed to refer to them at all.

 

 

Sorry for so many questions

 

sc

Edited November 5, 2008 by StayingCalm
added a question.

[StayingCalm]

so does this mean that if the original DN is defective the claimant can lawfully discontinue proceedings , reissue a new DN & then issue a fresh claim?

 

 

Hi Josie

 

My understanding is that they can not re-issue a DN after the agreement has been terminated because there would be no current agreement to issue a DN on. The claimant could not on its own re instate the agreement without the debtor's permission.

 

sc

[citizenB]

Best of luck for today, SC

[StayingCalm]

Thanks CB, its at 11.40.

 

Will post what happened when I get back.

 

sc

[surfaceagentx20]

SC

A Formal Demand may be an implied example. Whether a termination may be implied or an express termination has nothing to do with CCA 1974. The test is whether the fact of termination is clear on the face of the document with 'Notice of Termination' or 'We hereby Terminate' or some such such similar series of words clearly demonstrating termination. An implied termination would occur where there was no previous express termination but there is evidence of an act or document (or both or multiple acts and documents) from which the fact of termination may be inferred.

 

The question whether an agreement has been terminated is a question of fact to be decided by the Judge. Either it has been terminated or it hasn't. Demanding full payment on a credit card where the debtor may repay just a minimal sum monthly would be consistent with termination. Demanding the return of goods let under a HP agreement would be consistent with termination. Suing for either of these would be consistent with termination.

 

If the Judge decided a creditor had not terminated then the agreement would be a current agreement. Taking proceedings to enforce an agreement is inconsistent with the agreement being 'current'. I find it hard to conceive of a situation where a creditor might sue his debtor whilst within a contractual relationship with him. So it seems to me that a finding the agreement had not been terminated would result in the claim being rejected.

 

If the other side failed to turn up I'd show the DJ the dodgy DN and invite the DJ to conclude the Claimant's absence at court plus poor prospects demonstrated by the dodgy DN consitututed sufficient cause to strike the claim out. You will not be allowed to refer to 'without prejudice' correspondence.

 

Good luck today. Let us know how you got on.

 

x20

[StayingCalm]

Thanks x20

[pt2537]

Taking proceedings to enforce an agreement is inconsistent with the agreement being 'current'. I find it hard to conceive of a situation where a creditor might sue his debtor whilst within a contractual relationship with him.

A creditor may sue while an agreement is still live, the provision for this is where the agreement is improperly executed as the lender needs an order of the court to allow them to enforce the agreement. there are other situations where action can be taken under a live agreement tooo

 

Welcome to the bizarre and loony world of the Consumer Credit Act 1974

[breeze1996]

Thinking of you and wishing you luck.

[StayingCalm]

Thanks everyone, I am going now.

 

sc

[StayingCalm]

Short version.

Spoke to the barrister for Restons before going into see the Judge.

5 minutes later he comes out to the waiting room and hands me a

NOTICE OF DISCONTINUANCE

BUT He says it is the Banks intention to start a new claim!!!!! :mad:

Quick session with the Judge who awarded me costs.

So a huge thanks to everyone for their help and support and especially Paul and x20. Thank you, thank you, thank you, thank you.

Will post full details this evening

Regards

sc

[AndyOrch]

Well done SC

 

cant wait to read the indepth version. Congrats:D

 

 

Regards

 

Andy

[mcuth]

Well done SC

 

cant wait to read the indepth version. Congrats:D

 

Very much a big "ditto" from me - congrats

 

Cheers

Michael

[surfaceagentx20]

They sent a barrister to act as their post boy? A Barrister! Actually I'm not sure a barrister can serve legal papers but that's by the by. Frankly I'm astonished they discontinued. I'd have expected them to have gone for the arrears put at £1478.80 on the DN. So this is a huge result what with costs 'n' all and a hearty well done. I'm only sorry to have now lost the pleasure of playing ping-pong with them.

 

In any case, that 'but we're gonna sue you a second time' was intended to wipe the smile from your face. I hope you gave them a big grin back. They won't sue a second time, alternatively they'd be mad too.

 

Any second action will have to be reliant upon a set of facts different to the first case, otherwise you may raise res judicata as a defence. That said, the only difference in any second claim will be the service of a second DN and as yet, one hasn't been delivered. Apart from enabling you to plea res judicata and a reference to the first DN of 25 March 2008 and all that is said in it, including the part which reads 'On or after the date shown, the agreement will be terminated and we will take court proceedings to recover the whole amount owed ...', you will also be able to plea that the second DN was served after termination of the agreement by the creditor, you had not consented to the reinstatement of the agreement and in consequence there was no agreement capable of subsisting if you complied with the requirements of the second DN.

 

Hmm, may be I haven't lost the pleasure of playing ping-pong with them after all!

 

Oh and er, if you need any help with the costs order, just yell.

 

Regards

 

x20

[supasnooper]

Hi SC.

 

Congratulations and Well done for seeing Restons off.

 

I'll be looking in later for the full report.

[pt2537]

FANTASTIC RESULT:D

 

Great work as well by x20, outstanding;)