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

[fairbyblue]

Para 4 of Practice Direction A to CPR Part 6 is worth a read:

 

Service by fax or other electronic means

 

4.1

 

Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means –

(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving –

(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and

 

(b) the fax number, e-mail address or other electronic identification to which it must be sent; and

 

 

(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) –

(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;

 

(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or

 

© a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.

 

 

 

4.2

 

Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient's agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).

 

4.3

 

Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy

 

 

 

 

What, one wonders, will the further correspondence contain? And, of that, what, served after the deadline, do they expect to be able to rely upon?

 

Thanks VS. I did not agree to this and they certainly did not ask.

 

So what shall I do?

 

1) Prepare Statement and get it to court by the 5/5/09

2) speak to court and point out they have not complied and get struck out without further order.

3) Get diane powell to court and ask where pages 1 to 14 (in line 5 you can see page number 15 but they failed to send me the full document) are as refered to in Bouchiers statement for summary judgement as this may be helpful for my defence. in post 302 http://www.consumeractiongroup.co.uk/forum/legal-issues/170484-fairbyblue-mbna-restons-court-16.html

also ask what day did she do witness statement

 

4) Pray ?

 

5) any other bright ideas?

 

Good point is that order says Executed CCA together with any terms and cons applied to it. but in para 3 of powell statemnt just says copy of latest applied to it and sent to defendent.

Prove it !!!!

Edited April 30, 2009 by fairbyblue

[pompeyfaith]

These default notices are exactly the same as mine tell me does the second one have mbna address details on i ask because mine second one does not.

 

Also this dianne powell is refferd to as litigation manager on her witness statement to me where as on yours its debt recovery.

 

I was given the oppotunity to summon her to court for my next hearing which i have done will be interesting to see if she does show

 

Regards

 

PF

 

PF

[fairbyblue]

These default notices are exactly the same as mine tell me does the second one have mbna address details on i ask because mine second one does not.

 

Also this dianne powell is refferd to as litigation manager on her witness statement to me where as on yours its debt recovery.

 

I was given the oppotunity to summon her to court for my next hearing which i have done will be interesting to see if she does show

 

Regards

 

PF

 

PF

Same here !!

 

This is the first

 

and this is the second

[Viscount Stair]

The safest course is to put in the best amended defence you can by Tuesday and to speak to the court office on whether to write or submit an N244.

 

It is worth asking for a strike out to save arguments as to whether or not the unless order bites.

 

Point out that the order has not been complied with properly because the documentation is not complete or correct, such documentation as was served was not served in accordance with the requirements of the practice direction, that it was "served" at the last possible moment (prejudicing you as a result) and that there is a vague reference to further correspondence (prejudicing you further).

 

You should also take a little longer to prepare another witness statement for the SJ application and be ready to serve it between now and the hearing.

[fairbyblue]

Cheers VS. It just amazes me that they had the date to submit the docs by 14/4/09 then i asked for strike out and they get anotherr chance and then they 'serve' and having read what you pointed out to me i use that term loosley so late. They are just pushing to see if i crack !!!

I wont!!!!

[pompeyfaith]

Fairbyblue,

 

Yes as i thought exactly the same as my two the second one does not comply also as it does not have the mbna details on so how are you expected to know who to comply to.

 

Also you would of thought in this age of computing they could of got the wording in the box spaced properly.

 

two faulty defaults the second in an atempt to get the first right and they fail there too.

 

With no default your case should not even be in the court system.

 

Regards

 

PF

[pompeyfaith]

I'm also sure that it is a reqirement that all legal docs must have a registered address on if the company is registered.

 

PF

[citizenB]

Fairbyblue,

 

Yes as i thought exactly the same as my two the second one does not comply also as it does not have the mbna details on so how are you expected to know who to comply to.

 

Also you would of thought in this age of computing they could of got the wording in the box spaced properly.

 

two faulty defaults the second in an atempt to get the first right and they fail there too.

 

With no default your case should not even be in the court system.

 

Regards

 

PF

 

Desperate times, desperate people, PF ?? The whole situation is bizarre isnt ?.

 

Did they terminate in between the two DNs ?

[fairbyblue]

I'm also sure that it is a reqirement that all legal docs must have a registered address on if the company is registered.

 

PF

 

Yep first one with MBNA address on both top and bottom, second one is blank !!!!! Also there a phone number in last paragraph of first DN to resolve. The second one it has disappeared so how can we get in touch with them to pay?

 

Good spot. More ammo

[citizenB]

Send a copy of the DN with no Company information to:

 

Companies House

Companies Administration Department

Crown Way

Maindy

Cardiff

CF14 3UZ

 

Dear Sirs

 

Please find enclosed a copy of a letter received from ??

 

It is my understanding that PLC's are to show on their Letter Headings, at the very least their Registered Office Address. As you can see from the copy enclosed, there is no address NO at all.

 

I look forward to your comments.

 

Yours faithfully,

 

 

Do I qualify for a Wooden Spoon

[fairbyblue]

Send a copy of the DN with no Company information to:

 

Companies House

Companies Administration Department

Crown Way

Maindy

Cardiff

CF14 3UZ

 

Dear Sirs

 

Please find enclosed a copy of a letter received from ??

 

It is my understanding that PLC's are to show on their Letter Headings, at the very least their Registered Office Address. As you can see from the copy enclosed, there is no address NO at all.

 

I look forward to your comments.

 

Yours faithfully,

 

 

Do I qualify for a Wooden Spoon

 

Thats in the post tomorrow.

[pompeyfaith]

Because of the fact both defaults are defective im wondering (need the knowledgable to confirm this) if we can make an application to have this struck out on the basis no legal default has been issued and the fact they have had two atempts to get this right and failed on both occations.

 

Any mods arround ?

 

PF

[pompeyfaith]

Ditto ill do that too two arriving at the same time will be better than one

 

PF

[pompeyfaith]

Fairbyblue did your second default arrive to you in the post or was it in my case just turned up in the court bundle ?

 

PF

[fairbyblue]

Fairbyblue did your second default arrive to you in the post or was it in my case just turned up in the court bundle ?

 

PF

 

In the post. Reston confirmed its terminated

 

[fairbyblue]

What a divvie. BOTH DN's are defective. There is no name and address of creditor on 2nd DN, that is the one that they want to rely on so hopefully they are stuffed !!!!

Their last paragraph is a bueaty in the 2nd DN. "This notice should contain copy of OFT information on default. It contains important information about your rights. Contact us if its not included.

 

HOW?

 

and i couldnt identify it cos its a completley different account number from the 1st DN.

[pompeyfaith]

Nice letter could work out to be better than the cca you requested im still not sure if mine has been terminated i have had nothing to say it has i know the account is charged off and the balance put on another account number as i have a statement detailing this but is charging off the same as terminating ? im not sure.

 

PF

[pompeyfaith]

not sure if it means anything but your DN are both dated differant 27th oct and 18th june where as mine are both dated 14th april 08 first gives a date to rectify by 28th April and the second 1st may 2008 my second one is also on 2 pages where as yours is on one

 

PF

[fairbyblue]

Doing my statement at the moment as it has to be in sharpish

Can someone point me in the direction of information that needs to be on a default notice that i can quote.

esp. the bit about name and address of creditor 'cos the one they rely on in court is does not contain this info.

 

can someone from site team help?

[Viscount Stair]

In one of the libraries is an up to date copy of the Enforcement, Default and Termination Notices Regs. The format of a DN is set out in Schedule 2.

[supasnooper]

Duplicate info as posted by VS.

 

Edited May 1, 2009 by supasnooper
duplicate info

[atwozee]

Another small but important observation – if there was ever any doubt that the first DN terminated the agreement (not in my mind BTW) then you only have to look at the amount stated in arrears on both DN’s – it’s the same – if the account wasn’t terminated after the issue of the first DN then you would expect the arrears to increase each month until the issue of the second DN.

I don’t think they have any more feet to shoot themselves in.

[fairbyblue]

Another small but important observation – if there was ever any doubt that the first DN terminated the agreement (not in my mind BTW) then you only have to look at the amount stated in arrears on both DN’s – it’s the same – if the account wasn’t terminated after the issue of the first DN then you would expect the arrears to increase each month until the issue of the second DN.

 

I don’t think they have any more feet to shoot themselves in.

 

Good point. Thats going in !!!!

[summerbreeze]

In one of the libraries is an up to date copy of the Enforcement, Default and Termination Notices Regs. The format of a DN is set out in Schedule 2.

 

Sorry to but in ..I have been looking for this item and cant find it . Could I get link please ?

[citizenB]

This is a link to a postpost by 42man that might help

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1910254.html

 

 

Originally Posted by 42man

quote the following from Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Quote:

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

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

• 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 May 1, 2009 by citizenB