MBNA/Restons Claimform - old MBNA Card DEbt *** WON ***

[surfaceagentx20]

snoops,

You have no procedural right to sight of an opponent's AQ prior to lodging your own. The CPR expects parties to discuss and agree proposed case management directions wherever possible. This rarely happens in practice and the AQs are fired off with little thought to directions.

 

The fledgling lawyer delivers a copy of his AQ to his opponent when he files it. As a lawyer of the seasoned, low class rat variety, I'm on record as advocating, from a tactical point of view, the delivery of the AQ a little later than the date expressed on the AQ for its return. The rationale is that delay may give rise to an opportunity to see the opponent's AQ and in turn, an opportunity to add anything of consequence to your own AQ.

 

x20

[car2403]

Your AQ should be at the Court on the date stated on it, or the Judge may not take any notice of it.

 

You won't get to see the parties AQ unless they serve a copy on you, which they probably won't.

 

I can't see any value that you'd have to add to your AQ by seeing theirs.

[shakespeare62]

Also, for the benefit of "Restons" who boast of snooping here, try a Google search (Uk pages only) for the following term :- "solicitors struck off"

 

Lets hope it doesn't give them nightmares...

Edited December 22, 2008 by shakespeare62

[supasnooper]

Good Morning All,

 

I hope you've all had a great Christmas and have a Happy New Year.

 

I filed my AQ two weeks ago and have now received a letter from the Court.

I've brought together the neccessary details together for ease of reference.

 

 

Notice of Hearing of Application

 

The hearing of the claimant's application for Summary Judgement (see copy attached) will take place at xx.xx on the XX March 2009 at XXXXXXX County Court.

 

Attachments :

 

 

 

 

 

Document MBNA 1 (shown below) referred to is the purported credit card agreement which when read closely; refers to Condition 11 in three places:-

The middle column first sentence, the middle column second sentence and the bottom right hand box,first sentence; where it states -

"we may process, use, record and disclose Personal Information as described in Condition 11".

 

Moving to Condition 11 in the Financial & Related Conditions, this states -

"For the period of five months starting on the date of the opening of the Account, we will not Increase the interest rate on any Cash Transaction, Cheque Transaction, Balance Transfer or on any handling fee"

 

I fail to see the correlation of processing personal information and not increasing the interest rate. They have obviously supplied the incorrect T&C's.

 

 

 

 

My defence is listed at post #43

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1760770.html

 

 

The default notice which is ineffective as they didn't give me 14 days from the date of service and contains unlawful charges (Restons sent me a copy but have not used it in their SJ application) - listed at post #30

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1734964.html

 

Restons are also relying on a set of statements in the application which they failed to send me under my CPR18 request.

 

Restons replied to my CPR31.14 request for a true and verified copy of the original agreement stating that there is no legal requirement on the Bank to provide the original agreement.

 

Further, MBNA are now in default of my SAR request submitted 30th October 2008 and I'm now completing the necessary documents to take them to court for compliance.

 

 

I presume it would be wise to submit an amended defence.

 

Will a headed letter to the court suffice or will it need to be submitted on form N244 ?

 

I really don't want to make a mess of this as I know I have them by the short and curly's so to speak.

[car2403]

This guys is going through almost exactly the same process but is a little behind you in the Summary Judgment hearing hasn't been listed yet; (the agreement here is enforeable, though)

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/154712-hfc-loan-court-claim.html

 

What is the date of the hearing? You have to file your witness statement in reply to this at least 7 days beforehand. I wouldn't file an amended defence just yet, as that will probably be ordered in directions set during the SJ hearing, if you even get that far. It may be worth pointing these errors out to Restons sooner, so you can agree settlement, but be aware (as I know you are) that they attend SJ hearings without discussing settlement and may then consider it before the final hearing. They seem to use these SJ hearings to assess the Courts approach in each case before deciding whether to go on - I think their theory is that if you can successfully defend a SJ application that you can probably do the same in the final hearing and then give up.

[supasnooper]

Hi car2403,

 

Thanks for the advice and the link.

 

I've read your thread on your battle with Restons and gained some good advice from it.

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

 

 

Also read robcag's thread that dealt with Restons as well.

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html

 

 

The hearing is set for March so I have some time in hand.

[car2403]

The hearing is set for March so I have some time in hand.

 

Yes, but don't rest on your laurels as March will soon come around and you need to be fully prepared with all your legal armoury supporting your views and ready to convince a Judge that probably prefers HFC's arguments to you as it "sounds right". Using the time you have to fully research and prepare yourself would give you a distinct advantage - I can guarantee that Restons won't spend as long on your claim as you will.

 

Also, there's some follow up work to be done before March, such as getting all the statements you need, compliance with CPR requests for more info and DPA SAR, etc, etc.

 

Put simply, don't waste the 3 months...

[supasnooper]

car, fully understand .

 

Thank you

[Josie8]

I would serve a Notice to Prove (Form N268 I think) the agreement asap

[supasnooper]

I would serve a Notice to Prove (Form N268 I think) the agreement asap

 

Spot on Josie with form N268 - Google threw this link up on a search for N268 - http://www.consumeractiongroup.co.uk/forum/legal-issues/164097-form-number-n268-form.html

 

 

also a couple of useful links in there as well.

 

A good reminder about the Civil Evidence Act 1995 mentioned there as well by BRW.

 

Much appreciated - Thanks.

Edited January 3, 2009 by supasnooper
typo

[supasnooper]

Ok, in view of what car2403 has suggested (preparation, preparation and more preparation) I've compiled a witness statement to oppose the Summary Judgement.

It may seem lengthy but I'm looking at the view the Judge allocated to the case may not be fully knowledgeable on Consumer Law.

Any views opinions criticisms etc. are most welcome.

 

On behalf of: Defendant

Witness: Supasnooper

Exhibits: SNOOPS 01, SNOOPS 02, SNOOPS 03, SNOOPS 04 SNOOPS05, SNOOPS 06, SNOOPS 07

Date: December 2008

 

IN THE xxxxx COUNTY COURT Claim No: xxxxxxx

 

 

BETWEEN

MBNA Europe Bank Ltd

Claimant

And

 

Supasnooper

Defendant

 

 

WITNESS STATEMENT OF Supasnooper

 

I, Supasnooper of XXXXX, XXXXXXXX will state as follows:

 

1. I am the defendant in these proceedings .I make this witness statement in opposition to the claimant's application for summary judgment.

 

 

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

 

3. There is now produced and shown to me a bundle of documents marked "SNOOPS 01".

The exhibit SNOOPS 01 contains copies of the credit agreement served by the claimant.

 

4. There is now produced and shown to me a bundle of documents marked "SNOOPS 02".

The exhibit SNOOPS 02 contains copies of the Civil Evidence Act 1995 (C38).

 

5. There is now produced and shown to me a bundle of documents marked "SNOOPS 03".

The exhibit SNOOPS 03 contains copies of the section 87, 88, 89 and 127 Consumer Credit Act 1974, Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Regulation 2 of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

 

6. There is now produced and shown to me a bundle of documents marked "SNOOPS 04".

The exhibit SNOOPS 04 contains a copy of the statement made by F A R Bennion, the Draftsman of the Consumer Credit Act 1974 relating to s127(3)

 

7. There is now produced and shown to me a bundle of documents marked "SNOOPS 05".

The exhibit SNOOPS 05 contains a copy of the Default notice supplied by the claimant.

 

8. There is now produced and shown to me a bundle of documents marked "SNOOPS 06".

The exhibit SNOOPS 06 contains a copy of the Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post.

 

9. There is now produced and shown to me a bundle of documents marked "SNOOPS 07".

The exhibit SNOOPS 07 contains copies of the Judgment in Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339.

 

10. The respondent does not accept that the applicant has established that there is no compelling reason why there should not be a trial. The applicant has failed to supply any evidence which supports that the claim should be disposed of without trial. The respondent would seek to draw to the courts attention the following matters.

 

11. The applicant/claimant failed to supply the respondent/defendant any documents which the applicant mentioned in their particulars of claim and which were central to the applicants’ case. The respondent asked for the documents, which were pleaded in the claim on 17th September 2008 and other documents it may use in court to support the claim.

The applicant failed until 24th December 2008 to fully supply these documents that are being relied upon, despite my CPR18 and CPR31.14 requests dated 19th September 2008 and 8th December 2008 respectively.

The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence.

 

 

12. The applicant has served a copy of the agreement (exhibit SNOOPS 01), which its claim is based upon.

I wish to raise issues, which I would expect to expand upon at trial.

The claimant clearly states that the agreement relied upon is a photocopy of the signed application form (for simplicity, now further referred to in this document as "the credit agreement" or "the agreement").

 

The Civil Evidence Act 1995[C38 (s13)] (exhibit SNOOPS 02) states:

13 Interpretation

In this Act

"civil proceedings" has the meaning given by section 11 and "court" and "rules of court" shall be construed in accordance with that section;

"document" means anything in which information of any description is recorded, and "copy", in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly;

"hearsay" shall be construed in accordance with section 1(2);

"oral evidence" includes evidence which, by reason of a defect of speech or hearing, a person called as a witness gives in writing or by signs;

"the original statement", in relation to hearsay evidence, means the underlying statement (if any) by -

(a) in the case of evidence of fact, a person having personal knowledge of that fact, or

(b) in the case of evidence of opinion, the person whose opinion it is; and "statement" means any representation of fact or opinion, however made.

 

By virtue of the Civil Evidence Act 1995, the credit agreement supplied by the claimant, here onward should be treated as hearsay evidence.

 

13. The credit agreement is materially defective, the credit agreement upon inspection; refers to Condition 11 in three places:-

The middle column first sentence, the middle column second sentence and the bottom right hand box, first sentence; where it states –

 

"we may process, use, record and disclose Personal Information as described in Condition 11".

Moving to Condition 11 in the Financial & Related Conditions, this states -

"For the period of five months starting on the date of the opening of the Account, we will not Increase the interest rate on any Cash Transaction, Cheque Transaction, Balance Transfer or on any handling fee"

This is a very ambiguouscondition in reference to the context of the statement made in the agreement under the heading of Data Protection to the processing, using, recording and disclosing Personal Information.

If the agreement and Financial Terms and Conditions are photocopies of the original credit card agreement as the claimant states, they should be displayed as a duplex printed document or on a one face side document.

The supplied Financial & Related Conditions, the Prescribed Terms under the Consumer Credit Act 1974 s127(3) (SNOOPS 03), are clearly not related to the credit agreement supplied and do not meet the criteria of being within the four corners of the document.

 

13. The agreement is not headed correctly as required by Regulation 2(1) and Schedule I Consumer Credit (Agreements) Regulations 1983 (SNOOPS03) states:

(1) Subject to paragraph (2) below, a heading in one of the following forms of words-

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may

require.

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words -"Credit Agreement regulated by the Consumer Credit Act 1974".

(3) Where the document and a pawn-receipt are combined, the words " and Pawn Receipt,"

shall be inserted in the heading after the word "Agreement".

(4) Where the document embodies an agreement of which at least one part is a credit

agreement not regulated by the Act, the word "partly" shall be inserted before "regulated"

unless the regulated and unregulated parts of the agreement are clearly separate.

(5) Where the credit is being secured on land the words "secured on" followed by the address

of the land shall be inserted at the end of the heading.

 

15. The statement made by F A R Bennion, the Draftsman of the Consumer Credit Act 1974 relating to s127 (3) (Exhibit SNOOPS 04) states:

Consumer Credit Act 1974 s 127(3)

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.

167 Justice of the Peace (2003) 773.

 

16. I would also like to draw the Court’s attention to the requirements of CPR Practice Direction 16 7.3 which states:

Where a claim is based upon a written Agreement:

(1) a copy of the contract or documents constituting the Agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

 

Should the Claimant be unable to produce the original Agreement signed by both Debtor and Creditor and containing the Prescribed Terms, I request that the Court uses its powers under Section 142 Consumer Credit Act 1974 and declare the Agreement as unenforceable.

 

17. The applicant has supplied a copy of the default notice (exhibit SNOOPS 05), which is related to the claim. I wish to raise an issue, which I would expect to expand upon at trial. The default notice is materially defective, the notice that I have is dated Friday 8th August 2008 was served by post and received on Tuesday 12th August 2008.

 

18. The Consumer Credit Act 1974 s87 & 88 together with Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (Exhibits SNOOPS 04) are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies.

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain-

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7 [8A] and 9 to 11 of that Schedule

10.

At schedule 2 Para 3 of the regulations it states the following:

Details of breach of agreement and action required to remedy, or pay compensation for, the breach…

 

3 a specification of: -

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

17. The Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post (Exhibit SNOOPS 06) which states:

2. Practice Direction

 

Service of Documents - First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

 

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days" are Monday to Friday, excluding any bank holiday.

 

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

 

18. Clearly defined is the fact that the default notice does not comply with the requirements as specified in Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) 3© above; as the notice only gave 11 days for compliance not 14 days as required.

 

19. Failure of a Default Notice or a Termination Notice to be accurate not only invalidates such Notice, and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 (Exhibit SNOOPS 07) in the Court of Appeal, in this judgment Kennedy LJ states inter alia :

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

 

20. Therefore, it would be the respondents’ position that the applicant/claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective.

 

21. In addition to the points raised I would ask for the court to allow me to amend my original defence as at the time I submitted the defence I did not have in my possession a full compliment of the documents which the claimant has now disclosed.

This despite my requests for further information and given that I am a litigant in person there are a number of other issues which have now come to light in view of the claimants disclosure and therefore respectfully request that I be given the opportunity to defend this action. I make this request with the overriding objective in mind as set out with CPR 1.

 

22. I therefore request that the court do dismiss the applicant's application for summary judgment.

I believe that the facts stated in this witness statement are true.

 

Signed Supasnooper

 

Dated December 2008

[car2403]

Shouldn't the POC be amended in light of the disclosed documents, then the defence can be amended and responded to?

[supasnooper]

Shouldn't the POC be amended in light of the disclosed documents, then the defence can be amended and responded to?

 

Would I be correct that under CIVIL PROCEDURE RULE 17.2 I would correspond to the courts seeking disallowance of amending the POC without my permission?

Edited January 7, 2009 by supasnooper
missed off words

[car2403]

Would I be correct that under CIVIL PROCEDURE RULE 17.2 I would correspond to the courts seeking disallowance of amending the POC without my permission?

 

You could, but they would be unlikely to allow the POC to be amended, IMHO.

[supasnooper]

Car - Thanks for looking in but I can't find anything on how I may be able to get them to amend the Particulars Of Claim except CPR17.

 

I'll keep looking though.

[car2403]

Car - Thanks for looking in but I can't find anything on how I may be able to get them to amend the Particulars Of Claim except CPR17.

 

I'll keep looking though.

 

I meant that it's probably more appropriate for them to amend their POC before you amend your Defence.

[supasnooper]

I meant that it's probably more appropriate for them to amend their POC before you amend your Defence.

 

I've just been looking at it from the wrong perspective.

 

Thanks.

[supasnooper]

Shouldn't the POC be amended in light of the disclosed documents, then the defence can be amended and responded to?

 

 

I've looked at the point car2403 has raised regarding Restons having now relied upon statements and the most recent terms and conditions in their Application for Summary Judgement which were NOT stated in the original Particulars of Claim (POC).

 

What would be the best approach for me to submit to the court a request under CPR 3 to request Restons POC be amended (and my defence amended) and/or ask the court to dismiss the Application for Summary Judgement due to the adducement of documents not listed in the original POC ?

[Josie8]

I've looked at the point car2403 has raised regarding Restons having now relied upon statements and the most recent terms and conditions in their Application for Summary Judgement which were NOT stated in the original Particulars of Claim (POC).

 

What would be the best approach for me to submit to the court a request under CPR 3 to request Restons POC be amended (and my defence amended) and/or ask the court to dismiss the Application for Summary Judgement due to the adducement of documents not listed in the original POC ?

 

 

The latter - the summary judgment is based on the pOC & your defence.

[supasnooper]

Thanks Josie8 for your advice.

 

Can't give you any rep points at the moment but will do so once it's available.

[supasnooper]

This is the proposed letter I intend to send to the court seeking dismissal or an amended POC be ordered.

 

 

 

 

IN THE xxxxxx COUNTY COURT Claim No: xxxxxx

 

 

BETWEEN

 

 

 

 

 

MBNA Europe Bank Ltd Claimant

 

 

And

 

 

 

supasnooper Defendant

 

Dear Sir \ Madam,

 

 

I have received the Claimants Notice of Hearing of Application for Summary Judgment to be held at xxxxxx County Court on xxth March 2009.

 

 

Having inspected the documentation, I would respectfully invite the Court using their powers under CPR 3.1(4) to dismiss the Application for Summary Judgement in light of the claimant adducing documents not listed in the original Particulars of Claim in their application.

 

 

The documents concerned are:

 

a/. The most recent set of Terms and Conditions.

 

b/. A set of statements from xxxxxxxx 2003 to xxxx 2008.

 

 

I wish to notify the Court the claimant failed to produce these documents as requested by my CPR 31.14 letter of xx/xx/08 to disclose all documents to be used in court.

 

If the Court would not consider the dismissal, I would respectfully invite the Court to request the Claimant submits an amended Particulars of Claim under CPR 3.1

 

 

I would also respectfully ask that the Court would grant me to submit an amended defence if an amended Particulars of Claim was ordered, and submitted by the Claimant.

 

Yours Faithfully,

 

 

 

 

supasnooper

 

 

 

 

 

Any thoughts, inclusions, editing or to be totally rewritten are invited.

Edited January 12, 2009 by supasnooper
removal of personal data

[fedup74]

Sorry supa can't give you any legal advice but boy have you been busy!! I wonder if Restons still think you have no chance of defending the claim:D You go get 'em:)

[supasnooper]

Thanks fedup74,

 

As car2403 has said earlier, know your case inside out and better than restons ........and trying to take in Civil Procedure Rules, wow there's lots of them.

[tiokim]

subscribing

[citizenB]

How are things progressing, supasnooper ?