MBNA/Restons claimform - old A+L Card **WON+COSTS**

[pompeyfaith]

fairbyblue i think u best send a message to siteteam this is a new one on me looks like i will get the same responce too PF

[bazaar]

Well in the little tur*s point 2, maybe Ms Powell needs to be called as a hostile witness. Did they inform you of changes in account numbers?

 

He states also that HE sees no reason blah blah blah, but he is not the Judge ( very disrespectful).

He is certainly clouding the issues here. So it needs picking apart really well to put this >>>$$$ in his place.

[pompeyfaith]

i have it in a court order that i can call mbna as witnesses in my case the judge was quiet put out that they were not there also i think if they could issue 2 DN the second one would be legit as u can see on my thread it is not PF

[pompeyfaith]

i will be calling Ms Powell to court if it gets that far

[robcag]

Hi fb

 

I'm no expert so I can't give you any definitive answers on this, just opinions.

 

It seems Restons are attempting to wriggle their way out of this DN issue by claiming exactly the same as they argued in my case, ie it is permissable to re-issue a DN.

 

If you read my account of my court appearance for an application hearing called by Restons you will see Restons barrister tried a similar tack, and the Judge even gave him an hour to take further instruction from (presumably) Restons after he claimed he had heard 'on authority' that it was permissable 'to adjust' a DN.

 

My account;

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended-15.html#post1535858

 

As I think we discussed further up your thread, I think you will have to argue strongly (as I did) the logic that the account has been terminated as per the original DN and cannot therefore be defaulted again. Point out the caselaw bit which states "the CCA1974 was put in place for the protection of the consumer....and not to assist the creditor ... etc."

 

State the creditor, being a large banking organisation, was given the opportunity to issue a correct DN and it was their own fault that they got it wrong. Make the point that if an account can be defaulted after being terminated, then the claimant could go on forever defaulting and terminating until he managed to get it right!

 

And who is this Dianne Powell? Why is she being quoted? Surely that is all hearsay? Shouldn't she have to sign some sort of Witness Statement for her evidence to be admitted? Sorry I don't know the answers to that one, but maybe somebody else will be along.

 

I still think you have restons in a corner, bear in mind they may be watching this thread!

 

Cheers

Rob

Edited March 19, 2009 by robcag
spelling

[DocH]

Hi fairby,

 

Have your read this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

[robcag]

PS fb

 

Forgot to say that at least they've admitted the first DN was invalid!

 

Therefore if you can persuade the Judge that they are not permitted to have another go at getting it right by re-issuing the DN, it should be game over!

 

Cheers

Rob

[robcag]

Hi fairby,

 

Have your read this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

Well pointed out DocH !

 

Cheers

Rob

[atwozee]

Once an account is terminated it cannot be un-terminated unless both parties agree. They are going to have to do a little better than that.

Point 4 in the WS doesn’t make sense at all – why was it produced if it is not a true copy.

Before varying any of the terms in your agreement they must first give notice in writing – put them to strict proof that such notice was served. It is also debateable whether they have a contractual right to vary the terms of the agreement in any case.

[tiokim]

The point would be to prove that the account was terminated before the second DN was issued i think.

[pompeyfaith]

if the account is charged of and the monies put on another account number is this the same as terminating the account?

[robcag]

It might also be worth pointing out that you could understand the Claimant being permitted to issue a second DN had the first one been remedied by you (ie had you paid the sums required) which would in effect have cancelled the first DN. In those circumstances, yes, the Claimant could re-issue if you then defaulted again, but then emphasise that this was not the case, you did not remedy the default, and therefore you had no reason not to take MBNA at their word, ie that they terminated the account on the date they said they would.

 

Cheers

Rob

[robcag]

Hi fb

 

Sorry, I've got a brain like seive for remembering which case deals with what, so 'the case law bit' I referred to a few posts above, which ISTR you have already include in your documents so you and everyone else are aware of, is of course this;

22. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid, I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the default.

Using this, you can argue "Where is the protection for the consumer if an inept creditor is to be allowed to continue re-issuing DNs until they manage to get it right?"

 

Basically, if the creditor is too stupid to get things right first time, then tough sh1t !!

 

Cheers

Rob

 

PS - Context copied directly from my defence provided by pt2537

Edited March 19, 2009 by robcag
added PS

[fairbyblue]

Cheers. A lot to go at there, please keep adding as its tomorrow and im really twitchy !!!

[fairbyblue]

Heres is exhibit refered to in his statemnt. He does say that that proves i had recieved t and c on 9/1/08

 

Now im not being thick but i cant see it !!!!! cos ive not been on MBNA abbreviation course. It does say that i have equity and not will release!!!!

And the debt will be sold in 4/5 months in other words when the first DN was issued !!!!

 

A prize for the person who can interpret their case managemnt system.

Also this is only a snapshot of it, no dates before or after so its not complete and only tries to further their argument not mine. ( ihave asked for all this under CPR, CCA and SAR !!)

note date of extract was 23/2/09 not today so they were not disclosing it

 

[robcag]

Hi fb

 

You'll have to get more expert opinion on this than mine, but apart from what I said a few posts further up about the possibility of Restons using alleged evidence from Dianne Powell which could well be hearsay, what about the admissibility of the whole of Restons WS at post #287? After all it's being submitted very close to the hearing, and you could argue that you have not had sufficient time to consider all the implications, or even to take advice.

 

Just a thought.

 

Good luck for tomorrow

Rob

Edited March 19, 2009 by robcag
spelling

[citizenB]

Fairyblue, I will bring this to the attention of the site team (more experienced ones) see if they can offer any advice for you.

[fairbyblue]

Thanks, they are very selective in their disclosure. Boucier statemnt is basically hearsay from Powell from mbna

[citizenB]

I forgot to put the number of the post that MBNA witness statement was on. So I am just leaving a note here for myself and anyone who pops in. It is 287

[MARTIN3030]

Its baffling how they state that this is the same account.

anyway I found some good info here from a very similar scenario.;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/165197-default-notice-re-issue.html

[MARTIN3030]

I will also change your thread title-it needs doing.

[fairbyblue]

Thanks ; Arghhhhh my printer has run out of ink !!!!!!!!!!!!!!!!!

[creditcardmug]

The key here is to prove that the account was terminated...so did you get a notice of termination/demand for payment in full subsequent to the failure to remedy, and before the issuing of the second DN. (failing that i would say the non-issue of monthly statement would be sufficient to show that the account had been terminated)

 

This being the case then there was never a live agreement to issue a second DN on!

[MARTIN3030]

Absolutely CCM.

This is the crux.

[fairbyblue]

Have letter from Restons confirming termination however it was after 2nd DN.

However the 2nd DN refers to Account number ending in 0454 dated ocober 08. In july 08 MBNA changed the account number to one ending in 4475 (Totally different) So now I believe the 2nd DN is defective as the account number is wrong !!!!

 

 

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

 

Regulation 2(2)

 

Details of agreement

 

 

1

A description of the agreement sufficient to identify it.

 

 

Parties to agreement

 

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

 

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.

 

relevant case law is this too...

 

DEFAULT NOTICE

 

 

The Need for a Default notice

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

__________________

 

Edited March 20, 2009 by fairbyblue