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

[fairbyblue]

Did MBNA post your DN by first class post? All of my DNs from MBNA were sent second class.

 

Dunno, the first one was 1st dunno about the second.

[diddydicky]

hope youv'e put the envelopes in your fire safe!!

 

why don't you offer to swap them with MBNA for their CCA's plus a cash top up!

[tiokim]

I don't understand the need to keep the envelopes ! Under the interpretation Act 1978, section 7 , pratice direction etc. If they claim posting first class they will need to prove it if you dispute it otherwise is second class I think

[diddydicky]

well im sure youve learned how tgricky and devious these little tinkers can be

 

why NOT keep the envleopes- it will strrengthen your case in court if they challenge the posting or if their disclosures conveninetly do not show the record of posting

 

i advise keeping ALL envelopes attached to inbound letters that could be significant

 

as you have seen on another posting - a letter dated 7th may and bearing a postmark of 18 may

 

If you were to argue in court that you only received a letter on 23 may that was allegedly posted (and shown on their records as posted) on 7th may - without the envelope to show this you might welll not be beleived!

[fairbyblue]

Just thinking out aloud. If its a rolling credit agreemnt and they have used the term on line 4 " A stop has been placed on your card" would that indicate that they have terminated the agreemnt as I cant use it any more.

Why the balance of £12k on the 1st DN and been removed for 2nd DN.

Is the wording correct ie the bold and underlining, as its not giving prominence to certain words. The remedy is the same for both DN's so that would indicate termination after ther 1st DN

 

Any more ideas please

[citizenB]

well im sure youve learned how tgricky and devious these little tinkers can be

 

why NOT keep the envleopes- it will strrengthen your case in court if they challenge the posting or if their disclosures conveninetly do not show the record of posting

 

i advise keeping ALL envelopes attached to inbound letters that could be significant

 

as you have seen on another posting - a letter dated 7th may and bearing a postmark of 18 may

 

If you were to argue in court that you only received a letter on 23 may that was allegedly posted (and shown on their records as posted) on 7th may - without the envelope to show this you might welll not be beleived!

 

 

The first one dated 18th June with a remedy date of 1st June at most allows you 10 clear days to remedy if posted 1st class . The formatting looks correct in that they have used bold and capitals and then made them more prominent by underlining key words.

 

They say they will terminate on or after the date shown.

 

This would leave any "reasonable" person to assume this had or would be done.

 

2nd DN

 

When did they realise their error and issue this next DN. Had they in fact terminated the account (was there any reference to this in your SAR).

 

RIght on this one you would have needed it to be posted 2nd class post as there are only 16 "free days". You dont count the 27th because the regs say "after posting" you dont count the 1st because they say "BEFORE THE DATE SHOWN"

1st class would give you 14 clear days (unless you could prove it was received later than the 2 days allowed) 2nd class would knock it back to 12

 

Interesting that the figure they want for remedy is the same on both notices. This assumes to me that they had in fact terminated after the first DN. On the first one issued they put a total balance outstanding as well but not on the 2nd.

 

I dont know if there is any significance or mileage in that.

[Viscount Stair]

I think there is.

 

Look at Schedule 2 of the DN Regs - I think it is para 9 (but don't have the opportunity to double check at the mo) that requires the total amount payable to be specified in a DN.

[citizenB]

I think there is.

 

Look at Schedule 2 of the DN Regs - I think it is para 9 (but don't have the opportunity to double check at the mo) that requires the total amount payable to be specified in a DN.

 

 

Excellent, I will see if I can locate that information.

 

How many more nails do you want FB ?

[citizenB]

Would this be it VS ?,

 

Requiring earlier payment of any sum

8

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the

difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

[fairbyblue]

The first one dated 18th June with a remedy date of 1st June at most allows you 10 clear days to remedy if posted 1st class . The formatting looks correct in that they have used bold and capitals and then made them more prominent by underlining key words.

 

They say they will terminate on or after the date shown.

 

This would leave any "reasonable" person to assume this had or would be done.

 

2nd DN

 

When did they realise their error and issue this next DN. Had they in fact terminated the account (was there any reference to this in your SAR).

 

RIght on this one you would have needed it to be posted 2nd class post as there are only 16 "free days". You dont count the 27th because the regs say "after posting" you dont count the 1st because they say "BEFORE THE DATE SHOWN"

 

1st class would give you 14 clear days (unless you could prove it was received later than the 2 days allowed) 2nd class would knock it back to 12

 

Interesting that the figure they want for remedy is the same on both notices. This assumes to me that they had in fact terminated after the first DN. On the first one issued they put a total balance outstanding as well but not on the 2nd.

 

I dont know if there is any significance or mileage in that.

 

Still waiting for SAR to prove termination but have letter dated after 2nd DN to say it has. Judge has ordered Comms log to be served on me by the 5/6/09 so hopefully that will show termination and charge off before 2nd DN. I have statemnt to show charge off just after remedy date of 1st DN

Funny i'm off to B and Q to but some nails.

[citizenB]

Well now that seems pretty final doesnt it?

 

Nice one FB The larger the nail, the more painful:lol:

[supasnooper]

The second DN does not contain the name and a postal address of the creditor or owner as required under Consumer Credit Enforcement Default and Termination Notices & Regulations 1983. Scedule 1 s2.

[diddydicky]

hey thats a pretty neat trick to get confirmation of termination - well worth a quid - i'll keep that one on hand

[citizenB]

The second DN does not contain the name and a postal address of the creditor or owner as required under Consumer Credit Enforcement Default and Termination Notices & Regulations 1983. Scedule 1 s2.

 

 

Well spotted, SS

[citizenB]

Aha, I also see the reason they reissued the DN. In the 1st one you breached clause 3 and in the 2nd you breached clause 8

[pompeyfaith]

The second Default Notice is nonce by way of the Companies Act 2006 below:

 

Chapter 6 Trading disclosures

 

82 Requirement to disclose company name etc

 

(1) The Secretary of State may by regulations make provision requiring companies—

(a) to display specified information in specified locations,

(b) to state specified information in specified descriptions of document or communication, and

© to provide specified information on request to those they deal with in the course of their business.

(2) The regulations—

(a) must in every case require disclosure of the name of the company, and

(b) may make provision as to the manner in which any specified information is to be displayed, stated or provided.

(3) The regulations may provide that, for the purposes of any requirement to disclose a company’s name, any variation between a word or words required to be part of the name and a permitted abbreviation of that word or those words (or vice versa) shall be disregarded.

(4) In this section “specified” means specified in the regulations.

(5) Regulations under this section are subject to affirmative resolution procedure.

83 Civil consequences of failure to make required disclosure

 

(1) This section applies to any legal proceedings brought by a company to which section 82 applies (requirement to disclose company name etc) to enforce a right arising out of a contract made in the course of a business in respect of which the company was, at the time the contract was made, in breach of regulations under that section.

(2) The proceedings shall be dismissed if the defendant (in Scotland, the defender) to the proceedings shows—

(a) that he has a claim against the claimant (pursuer) arising out of the contract that he has been unable to pursue by reason of the latter’s breach of the regulations, or

(b) that he has suffered some financial loss in connection with the contract by reason of the claimant’s (pursuer's) breach of the regulations,

unless the court before which the proceedings are brought is satisfied that it is just and equitable to permit the proceedings to continue.

(3) This section does not affect the right of any person to enforce such rights as he may have against another person in any proceedings brought by that person.

84 Criminal consequences of failure to make required disclosures

 

(1) Regulations under section 82 may provide—

(a) that where a company fails, without reasonable excuse, to comply with any specified requirement of regulations under that section an offence is committed by—

(i) the company, and

(ii) every officer of the company who is in default;

(b) that a person guilty of such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.

(2) The regulations may provide that, for the purposes of any provision made under subsection (1), a shadow director of the company is to be treated as an officer of the company.

(3) In subsection (1)(a) “specified” means specified in the regulations.

85 Minor variations in form of name to be left out of account

 

(1) For the purposes of this Chapter, in considering a company’s name no account is to be taken of—

(a) whether upper or lower case characters (or a combination of the two) are used,

(b) whether diacritical marks or punctuation are present or absent,

© whether the name is in the same format or style as is specified under section 57(1)(b) for the purposes of registration,

provided there is no real likelihood of names differing only in those respects being taken to be different names.

(2) This does not affect the operation of regulations under section 57(1)(a) permitting only specified characters, diacritical marks or punctuation.

 

As the second DN has not company details on and this includes a registered address and/or telephone number its nonce

 

Companies Act 2006 (c. 46)

ch6-l1g82

 

Regards

 

PF

[pompeyfaith]

Part 6 A company’s registered office

 

General

 

86 A company’s registered office

 

A company must at all times have a registered office to which all communications and notices may be addressed.

87 Change of address of registered office

 

(1) A company may change the address of its registered office by giving notice to the registrar.

(2) The change takes effect upon the notice being registered by the registrar, but until the end of the period of 14 days beginning with the date on which it is registered a person may validly serve any document on the company at the address previously registered.

(3) For the purposes of any duty of a company—

(a) to keep available for inspection at its registered office any register, index or other document, or

(b) to mention the address of its registered office in any document,

a company that has given notice to the registrar of a change in the address of its registered office may act on the change as from such date, not more than 14 days after the notice is given, as it may determine.

(4) Where a company unavoidably ceases to perform at its registered office any such duty as is mentioned in subsection (3)(a) in circumstances in which it was not practicable to give prior notice to the registrar of a change in the address of its registered office, but—

(a) resumes performance of that duty at other premises as soon as practicable, and

(b) gives notice accordingly to the registrar of a change in the situation of its registered office within 14 days of doing so,

it is not to be treated as having failed to comply with that duty.

[fairbyblue]

Can they add S69 interst to mine?

Heres what on POC

 

particulars acc no (my account number)

 

18/11/08 default balance 11214.35

21/11/2008 post refrl cr -12.00

21/11/2008 12.00

27/11/2008 interest 22.11

Total 11224.46

 

Together with

Interest pursuant to s69 County Courts Act 19 at the rate of 245.53 pence per day to the date of judgement or sooner payment.

[supasnooper]

No they can't add s69 interest. Here's why -

 

S69 interest is interest which is added to the principal sum under the County Courts Act 1984 S69

 

Why arent they entitled to it? because its a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states they are not entitled to it!!

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12))

The general rule

2. —

(3) Interest shall not be payable under this Order where the relevant judgment—

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974 ;

[Viscount Stair]

Surely that only applies after judgment, not before. I think this has been covered before by someone else.

 

The question is whether they are claiming both contractual interest and statutory interest.

 

Having not included the relevant wording in the DN they are trying to rely on, they can't claim post judgment contractual interest even if they do win.

[fairbyblue]

No they can't add s69 interest. Here's why -

 

S69 interest is interest which is added to the principal sum under the County Courts Act 1984 S69

 

Why arent they entitled to it? because its a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states they are not entitled to it!!

 

 

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12))

 

The general rule

2.—

(3) Interest shall not be payable under this Order where the relevant judgment—

 

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974 ;

 

Thanks for that. When shall I throw that bombshell in? Do you get the impression that they know nothing !!!.

 

[Viscount Stair]

Would this be it VS ?,

 

Requiring earlier payment of any sum

8

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the

difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

Right paragraph but not right sub-paragraph:

 

8(a) - there is no rebate on a credit card.

 

But they do need to specify the total amount payable as well as just the arrears.

[supasnooper]

Thanks for that. When shall I throw that bombshell in? Do you get the impression that they know nothing !!!.

 

 

 

When everything else has failed

 

 

You should have enough with the defective DN's to get you through.

[citizenB]

Right, thanks VS

[steven4064]

A defective DN means they have no case. End of.