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

[supasnooper]

Hi CB,

 

Not much progress on this really.

Just refining the witness statement for the Summary Judgment hearing which I've posted earlier.

 

Trawling through CPR as it's a fave tactic of them to try and blind you with pretty numbers.

 

And doing some research and learning on the need to know stuff....as car has said - I need to know my case inside and out AND far better than they now it.

[angel_1]

HIYA Supasnooper, im subbing too

 

and wishing you good luck

 

im learning all along,

 

maybe i might be taken to court who knows but ive got very similar copies of the cca they say is correct from mbna,,,

 

take care for now

 

laters angel x

[supasnooper]

Hi angel_1,

 

Thanks for the support.

 

I don't believe that my CCA is valid, but can I convince a judge who may not know consumer law ?

 

A judge (not named on the court correspondence); decided that Restons Summary Judgment application was better than my AQ and defence......but then again, Restons are paying the court fees and have to be appeased I suppose.

 

I'll have a look at your threads to see where you're at with your battles.

[Viscount Stair]

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.

 

I think there is a lot in this theory.

 

I saw a commentary on a recent case (a case brought by the law firm Hammonds against some of its ex-partners for the return of profit shares that were allegedly miscalculated and overpaid ) that suggested that an application for summary judgment by a claimant was - perversely - a sign of weakness because it gave them two chances to win and a dry run for the main trial, even if they lost the first time. Apparently, if they genuinely believed they would win, they should have gone for determination of the point as a preliminary issue, at which you only get one chance.

 

Just a thought.

[supasnooper]

Hi V S,

 

Thanks for the info.

 

It had crossed my mind and re-iterates what car 2503 has posted.

[Viscount Stair]

I was subbing with interest anyway. Good luck.

[citizenB]

Hi CB,

 

Not much progress on this really.

Just refining the witness statement for the Summary Judgment hearing which I've posted earlier.

 

Trawling through CPR as it's a fave tactic of them to try and blind you with pretty numbers.

 

And doing some research and learning on the need to know stuff....as car has said - I need to know my case inside and out AND far better than they now it.

 

Excellent advice from Car.. he has been there, done that, got the tshirt. And I for one am very glad he is on our side, pointing out the pit falls so we can avoid them.

[SupermanX]

subscribing, i'm in a similar situation, Good luck

[mitzbag]

whats happened?

[supasnooper]

Hi All,

 

Sorry for not updating this thread for a while but not a lot to report really

 

I submitted my Witness Statement last week with a few tweaks to the one posted up earlier and now awaiting for my date in Court on Tuesday to oppose the Summarry Judgment application.

 

Just doing some last minute revision of facts and case law.

[angel_1]

hiya supasnooper,,,good luck and after re reading your thread, when you say about clause 11 and its different its highlighted something now for me so thanks

 

also you know you have a table of aprs im going to link up a thread as your original credit limit given may affect what was given in that apr table

 

brb

[elliesnan]

in same situation as you, good luck.

[citizenB]

Goodness, that came round quickly. Good luck for tomorrow:D

[mitzbag]

how you get on?

[Viscount Stair]

Wondering how it went ...

[tiokim]

me too

[sunflower99]

I have just had Restons set on me by MBNA so looking at this thread with great interest,Hope all goes well!

[Sunshine54]

just wondering how it went on Tuesday?

[sunflower99]

just wondering how it went on Tuesday?

Hi sunshine54

I am in same boat as well and expecting Restons to issue a summon seventually,It is a bit worrying that supersnooper has not said how they got on whcih makes me fear the worst that things may not have gone well,Just hope they have a sucess to post up on this thread.and keeping my fingers crossed.

[supasnooper]

Good Afternoon All,

 

Thanks for your concern and interest in my case. As you are aware, my hearing in opposition to Summary Judgment took place on Wednesday.

 

Here’s how it went:

 

I arrived at the court half an hour early and was immediately approached by a freelance solicitor representing Restons.

She asked me if I had given any thought to the letter I had received from Restons dated Monday 30th January 2009.

I had not received any letters and the postman had been as well. ( Still not received a copy of this letter ….but I didn’t expect to.).

She went away and got a photocopy of a letter addressed to me headed "Without prejudice save as to costs".

The contents of the letter were some arguments as to their points on the CCA being valid and a substantial reduction offer on payment of the debt but no figures displayed. I told her I would need a few minutes to digest the letter.

The solicitor then returned with the figures on a piece of unheaded paper offering a substantial reduction of the amount showing the relevant calculations. I asked for 5 mins to think about this and then refused the offer.

 

Stupidly, I got into a bit of an argument about what was legal and what wasn't regarding Default Notices and their re-issuing, but finally come to my senses and told the solicitor the case would be best decided in front of a judge.

The solicitor then went off and made a phone call and then 5 minutes later we were called into the courtroom.

 

The solicitor made the introductions to the Judge.

 

The solicitor was invited by the Judge to start and the solicitor straight away pointed out that the Default Notice was ineffective due to the fact that 14 days had not been given to rectify the breach and read passages of Woodchester Lease Management Services Ltd v Swain and Co to the judge. She then stated that all the claimant could ask for was the arrears and that they wanted Summary Judgment for this amount.

 

The judge then asked me if I wished to speak and looked at the clock. My instincts told me to keep it short and sweet.

I replied that the CCA was unenforceable as shown in the points raised in my Witness Statement and moved onto the Default Notice.

I stated the Default Notice was indeed ineffective and that the arrears amount was incorrectly stated as well. I concurred with the solicitor that the Default Notice was invalid, and as such, the claimant could not claim anything as the arrears contained unlawful penalty charges which made the stated arrears figure incorrect.

 

The solicitor again stated that the claimant would seek summary judgment for the arrears, re-issue a correct Default Notice and pursue me for the remaining amount (i.e. the principal debt).

 

A debate between myself and the solicitor took place about reissuing Default Notices but I then quoted Kpohraror v Woolwich Building Society [1996] as the case law for this (I had no print-offs for this case law with me) and both the Judge and the solicitor said they had not heard of this case. Both made a note anyway (With hindsight it should have been Woodchester Lease Management Services Ltd v Swain and Co - I know, I know.)

 

The judge then got involved and asked exactly what the solicitor was after, was it -

 

1/ A Summary Judgment for the whole amount ?

or

2/ Summary Judgment for the arrears only ?

or

3/ Discontinuance ?

 

She replied that she was after Summary judgment for the arrears on the Default Notice and s69 interest. The judge then asked what steps would be taken to do this.

The solicitor replied she would get a Witness Statement from the Original Creditor as to the arrears being correct, and take further instructions from Restons on how to proceed.

I objected to this again stating Kpohraror v Woolwich Building Society [1996] , the Default Notice being defective and that s69 interest is not allowed in cases bought under CCA 1974. Finally I requested that Summary Judgment application should be dismissed as the solicitor had confirmed the Default Notice was defective.

 

The judge decided to give the solicitor 14 days to get a Witness Statement from MBNA, to get instructions from Restons with the next hearing scheduled for 45 minutes. I did object to this as I had attended the hearing to oppose the Summary Judgment and felt I had done so successfully, as the Claimants solicitor had admitted the Default Notice was defective.

 

At the time I felt pretty pleased that I'd done pretty well, but with hindsight, I'd forgotten that I should have mentioned Woodchester Lease Management Services Ltd v Swain and Co again and got the SJ dismissed.

 

On reflection, my Witness Statement stood up to the test but my presentation of it was sadly lacking.

 

Or, from another perspective, did I get a Judge that was being fair to both sides to go away and come back fully prepared ?

 

Lessons learned from this experience – lots, here’s just some tips;

 

1/. Try to be fully prepared for any eventuality.

 

2/. Have your defence notes VERY clearly marked up and do practice fetching them to your fingertips quickly.

 

3/. Get there early, just in case you need to deal with last minute matters.

 

4/. Research your case and then learn your case.

 

5/ Try to learn from my mistakes as there are far too many to make yourself.

 

However, what I need to know is how I move forward to finally hammer home to Restons that they should discontinue as they have admitted in court the Default Notice is defective.

Edited April 5, 2009 by supasnooper
clarity

[car2403]

Well done supasnooper - you maybe didn't win the fight, but the war rumbles on unabaited after that skirmish.

 

It sounds like you had a Judge that doesn't know their eggs - the precedent quoted should have put an end to the Application for SJ, so it's disappointing you have to go back. This gives you more time to reflect on the initial hearing though, so use this time to prepare rather than spending time kicking yourself.

 

BTW, did this Judge reserve the file for themselves, or will you have a new Judge? Being honest, if you got this Judge again, it would probably work for you, as it sounds like a little more convincing can go on to win them over. If you get a new Judge, you may have to start from scratch.

 

Did the Judge mention a "unless order"? Meaning that unless the Solicitor comes back with what they've been told they need, the Applicaiton would be struck out. Hopefully, if they don't, the Court will strike out anyway because of your arguments, but it would have helped to have had an unless order now - something to bear in mind for the next hearing, though.

[Viscount Stair]

Good points well made, Car.

 

The test on a summary judgment is not whether or not the claimant will win but whether the claimant cannot but win - that test does not seem to have been applied.

[car2403]

Also bear in mind that Restons standard practise appears to be apply for SJ to see how the Court sees their chance in the final hearing - the fact you're giving them a run for their money at the SJ hearing should bode well for the future conduct of your claim. (Hopefully giving Restons so much to think about they'll convince themselves they should give up!)

[Gazza112]

subbing

[supasnooper]

Hi Car,

 

Thanks for your points of wisdom and duly noted.

 

The judge has reserved the hearing but did not make an "Unless Order" to the solicitor.

 

I'm very happy to go back again and have another tussle with them as I feel have the beating of them.

They know and have admitted that the Default Notice is ineffective and unlawful penalty charges have been applied to the account by MBNA.

I also have the little matter of the CCA not being enforceable to set them back even further.

 

Oh, and not forgetting a counterclaim for a recission of contract if they really want to push it..

 

Lets see what happens.