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

[lexis200]

Just read the last few posts and have ended up with a big grin on my face. Pompeyfaith, you are such a troublemaker:D;)

[lexis200]

ahhh i made an appointment with specsavers

 

clearly i SHOULD have made an appointment with braincellsavers!!

 

sorry for the confusion

 

(just testing to see if you were awake!)

 

they don't call me TF for nothing you know!!

 

TF? Care to elaborate for those of us who clearly need to be next in line at braincellsavers?:D

[diddydicky]

TF? Care to elaborate for those of us who clearly need to be next in line at braincellsavers?:D

 

Testing f****er

[fairbyblue]

Right I'm doing my defence, they have already have 2 witness staments so i want just to get the main points over.

 

Can anyone help to pad it out and phrase it correctly to whack them where it hurts.

 

This is the skeleton defence

 

Defence

1. I, xxxxxxxxxxx, being the Defendant, am a litigant in person in this case.

2. This is an abridged version of the 2 previous witness statements submitted for the summary judgement hearing and is in the court file and a copy of those statements is with the Claimant.

3. The relevant case law to support my arguments are quoted in the statements.

4. On 20th June 2008 I received a Default Notice dated 18th June 2008 (Exhibit NRF1) from MBNA Europe Bank Limited served under s87 (1) Consumer Credit Act 1974.

5. This by the claimants own admission is defective in that it failed to give the correct amount of time to remedy the breach of £1601.29, it also referred to the wrong clause to remedy the breach.

6. 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

7. In my judgment, Mr Hodgkinson is right for the reasons which he has given. 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 Gruffyd conveniently referred to as "the next step".

8. 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.

9. The claimant has terminated the contract.

10. This is demonstrated by the wording of the default notice stating that it will terminate on 1st July 2008

11. MBNA have ‘Charged off’ the account on 31st May 2009 indicating that they are claiming tax relief.

12. In the ‘Customer Information System’ referred to by Jeremy Bouchier and marked JBS1 it states that I have received 5 letters demanding full payment, and or percentage sum of the total owed after the issue of the

13. In the entry dated 21st January 2008 it states that the ‘debt’ will be sold in 4/5 months.

14. This is prior to the issue if the 2nd Default Notice dated 27th October 2008 and the one the claimant now relies.

15. Even though payments were made on the account the amount to remedy remained at £1601.39 on both default notices showing that either the amount is wrong or in fact it had been terminated.

16. In NRF5 Mr Coe, Managing Director of the Claimants solicitor confirms the account is terminated.

[diddydicky]

Right I'm doing my defence, they have already have 2 witness staments so i want just to get the main points over.

 

Can anyone help to pad it out and phrase it correctly to whack them where it hurts.

 

This is the skeleton defence

 

Defence

1. I, xxxxxxxxxxx, being the Defendant, am a litigant in person in this case.

2. This is an abridged version of the 2 previous witness statements submitted for the summary judgement hearing and is in the court file and a copy of those statements is with the Claimant.

3. The relevant case law to support my arguments are quoted in the statements.

4. On 20th June 2008 I received a Default Notice dated 18th June 2008 (Exhibit NRF1) from MBNA Europe Bank Limited served under s87 (1) Consumer Credit Act 1974.

5. This by the claimants own admission is defective in that it failed to give the correct amount of time to remedy the breach of £1601.29, it also referred to the wrong clause to remedy the breach.

6. 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

7. In my judgment, Mr Hodgkinson is right for the reasons which he has given. 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 Gruffyd conveniently referred to as "the next step".

8. 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.

9. The claimant has terminated the contract.

10. This is demonstrated by the wording of the default notice stating that it will terminate on 1st July 2008

11. MBNA have ‘Charged off’ the account on 31st May 2009 indicating that they are claiming tax relief.

12. In the ‘Customer Information System’ referred to by Jeremy Bouchier and marked JBS1 it states that I have received 5 letters demanding full payment, and or percentage sum of the total owed after the issue of the

13. In the entry dated 21st January 2008 it states that the ‘debt’ will be sold in 4/5 months.

14. This is prior to the issue if the 2nd Default Notice dated 27th October 2008 and the one the claimant now relies.

15. Even though payments were made on the account the amount to remedy remained at £1601.39 on both default notices showing that either the amount is wrong or in fact it had been terminated.

16. In NRF5 Mr Coe, Managing Director of the Claimants solicitor confirms the account is terminated.

 

dont want to throw a spanner in your works (but equally dont want you to) im unqualified but arfe you SURE that a defective DN constitutes an unfair recission of contract as you have stated - i thought that termination of a contract based on a defective DN constittes an unfair recission

 

perhaps someone more legally trained can clarify

 

apologies if i am wrong - just want to make sure you get it right

[fairbyblue]

Any info greatly recieved as i want to get it right.

[steven4064]

DD strictly you are right (rescission means "The cancellation or annulment of a transaction or contract by mutual consent or by law" - that would imply termination)

[diddydicky]

DD strictly you are right (rescission means "The cancellation or annulment of a transaction or contract by mutual consent or by law" - that would imply termination)

 

thanks yes i wasn't trying to be clever- its just that if she puts it to the court that the defective DN was a recission rather than the termination which followed- it might weaken the rest of her arguments

 

just needs a slight tweak to the statement

[WelshMam2009]

thanks yes i wasn't trying to be clever- its just that if she puts it to the court that the defective DN was a recission rather than the termination which followed- it might weaken the rest of her arguments

 

just needs a slight tweak to the statement

 

I believe I read somewhere that PT had said a DN was effectively termination with notice....so, it may be as well to emphasies any termination wording on the original DN.

 

The purpose of issuing a DN is to enable the creditor to undertake one or more specific activities which has to be stated "in a clear and unambiguous manner" and also, this being "the action which he intends to take by reason of the breach." (Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

Also, unless the original breach was remedied, it begs the question why further DN's were required to be issued and also, why the creditor should presume that subsequent DN's over-ride the first which (I presume) was not remedied.

[underdog13]

Some of my DNs state that the account will be terminated on the stated date or at some later date. How's that for vague? Could the 12th of blinkin' never!

[diddydicky]

I believe I read somewhere that PT had said a DN was effectively termination with notice....so, it may be as well to emphasies any termination wording on the original DN.

 

The purpose of issuing a DN is to enable the creditor to undertake one or more specific activities which has to be stated "in a clear and unambiguous manner" and also, this being "the action which he intends to take by reason of the breach." (Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

Also, unless the original breach was remedied, it begs the question why further DN's were required to be issued and also, why the creditor should presume that subsequent DN's over-ride the first which (I presume) was not remedied.

 

 

usually because the majority of DN's say what MAY be done rather than what WILL be done

 

the creditor basically can have as many goes as he likes to remedy the defective DN by issuing a new one until such time as he terminates the agreement , demanding sums that are not able to be demanded until termination would amount in itself to termination since the creditor is then withdrawing the facility to repay monthly

 

although i suspect if one went to court armed with half a dozen DN's the court would not be terrribly impressed

[WelshMam2009]

You could also add that failing to terminate may breach OFT's guidelines on debt collection which state;

 

2.1 It is unfair to communicate, in whatever form, with consumers in an unclear, inaccurate or misleading manner.

 

Therefore, they should not be threatening to do something if they had no intention of doing so in the first place!

[WelshMam2009]

usually because the majority of DN's say what MAY be done rather than what WILL be done

 

the creditor basically can have as many goes as he likes to remedy the defective DN by issuing a new one until such time as he terminates the agreement , demanding sums that are not able to be demanded until termination would amount in itself to termination since the creditor is then withdrawing the facility to repay monthly

 

although i suspect if one went to court armed with half a dozen DN's the court would not be terrribly impressed

 

I agree...but have a look at the bit I added on...the regs clearly state:

 

"the action which he intends to take by reason of the breach." (Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

[diddydicky]

You could also add that failing to terminate may breach OFT's guidelines on debt collection which state;

 

 

 

Therefore, they should not be threatening to do something if they had no intention of doing so in the first place!

 

think there might be a conflict there as the DN is a required part of the CCA and there is nothing in the act which says they MUST take a particular action in the event that the default is not rectified- only that they must state what that action may be

 

they are not tied to when they may take that action either save that it must not be LESS than 14 days after service

 

 

 

(i haven't double checked that but i'm sure its right)

[diddydicky]

I agree...but have a look at the bit I added on...the regs clearly state:

 

"the action which he intends to take by reason of the breach." (Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.

 

yes but it doesnt say WHEN he must take it(only the MINIMUM time in which he can take it)

 

he could choose to take the action after 14 days 14 weeks 14 months or decide to take some other action

so long as he issues a new DN saying what the new action intended is

 

not defending them- just pointing out that it is not all one way in our favour

[cashins]

Think you are right to keep thrashing this out DD.

 

In cases I have seen on here, the courts seem to accept that going after the full balance in court amounts to termination, however I have seen nothing that says that they have to take that line.

 

Be nice to have a definitive answer.

 

David

[r&b]

Think you are right to keep thrashing this out DD.

 

In cases I have seen on here, the courts seem to accept that going after the full balance in court amounts to termination, however I have seen nothing that says that they have to take that line.

 

Be nice to have a definitive answer.

 

David

i think BRW has explained that in the past as the fact that as soon as they go for the full amount they are no longer granting you a running credit agreement ie charging u interest and asking for a small amount of repayment for the benefit of borrowing the money, therefore that contract is at an end, terminated.

[diddydicky]

Think you are right to keep thrashing this out DD.

 

In cases I have seen on here, the courts seem to accept that going after the full balance in court amounts to termination, however I have seen nothing that says that they have to take that line.

 

Be nice to have a definitive answer.

 

David

 

just to confirm I am talking about DN's

 

ANY form of demand for payment in full of the total account balance IS termination.

[underdog13]

just to confirm I am talking about DN's

 

ANY form of demand for payment in full of the total account balance IS termination.

 

that was my thinking too, but the judge on this thread disagrees:(

http://www.consumeractiongroup.co.uk/forum/legal-issues/151709-help-57.html#post2229327

[diddydicky]

threads too long for me to catch up on but of course there will always be judges who go against the flow

 

as far as the act is concerned, if the creditor demands payment if full (in writing) then clearly he is withdrawing the opportunity for you to pay by instalments which is what the agreement is for

 

as i said dont have time to read 56 pages so dont know in what form the demand took but issuing proceedings itself is termination is it not!

[cashins]

that was my thinking too, but the judge on this thread disagrees:cry:

Help

 

Yep, just seen that.

 

We need to sort out this DN/ claiming full balance/ is it terminated or not issue.

 

David

[underdog13]

Yep it's an epic thread - last couple of pages covers the issues and result though.

 

I agree with you on what constitutes termination - is there any quote from the act we can use?

[underdog13]

Yep, just seen that.

 

We need to sort out this DN/ claiming full balance/ is it terminated or not issue.

 

David

 

Wholeheartedly agree.

[diddydicky]

Yep it's an epic thread - last couple of pages covers the issues and result though.

 

I agree with you on what constitutes termination - is there any quote from the act we can use?

 

87. Need for default notice. — (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a)

to terminate the agreement, or

(b)

to demand earlier payment of any sum, or

©

to recover possession of any goods or land, or

(d)

to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)

to enforce any security.

(2) Subsection (1) does not prevent the creditor from treating the right to draw upon any credit as restricted or deferred, and taking such steps as may be necessary to make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

[underdog13]

I guess they would quote 8(b), issue a DN to demand earlier payment...