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

[supasnooper]

Hi fb,

 

I would read point 3 as that you have the facility to submit an amended defence if they had served the relevant documents and consequently you needed to revise your defence.

 

They haven't done so, which means no amended defence to submit.

 

That's how I read it anyway.

 

I'll bet the next 7 days won't go quick enough ?

[Viscount Stair]

That's how I read it too up to a point but neither the original order nor the new order deals with the situation where the documents are provided but only just before the final deadline.

 

That's why I suggested preparing for the worst as well as hoping for the best because I would not put it past Restons to try putting papers at the very last possible moment.

 

If that happened, the safest course would be to serve anyway by the original deadline but that may not be possible or sensible.

 

A riskier course would be to serve late on the basis that if they got away with it, you should do too.

 

If they do avoid getting struck out, then there will have to be another hearing anyway, so you could try submitting the amended defence in draft up to three weeks after you get the papers (if you do - and that is a big if) and asking for the necessary leave to amend at the hearing.

 

Whether that would work, however, I cannot guarantee.

[fairbyblue]

Heres the unless order

[supasnooper]

The annoying thing is how many chances the Courts give them to get it right.

 

An extra two weeks is just a joke, file your defence one day late on Moneyclaim and you're stuffed with a default CCJ.

 

The waiting game continues but at least it's an unless order that's been issued.

[fairbyblue]

So if they do comply (fingers crossed they dont) i only have a few days to get particulirised defence in!!!! You're quite right if we miss a deadline we are snookered. If they miss they get more chances. Not really fair but have to live with it.

[creditcardmug]

I think its in the bag, cant see them complying with the order myself:D

[fairbyblue]

I think its in the bag, cant see them complying with the order myself:D

I not counting chickens yet. But heres hoping:)

[steven4064]

If they do comply, the first thing you must do is to ask the court for an additional 2 weeks to get in your amended defence - it would be completely unfair to expect you to meet the May 5 deadline when they have behaved like this.

[fairbyblue]

If they do comply, the first thing you must do is to ask the court for an additional 2 weeks to get in your amended defence - it would be completely unfair to expect you to meet the May 5 deadline when they have behaved like this.

 

Is that by way of letter or a N244? I should find out on friday if they had bothered but its a bank holiday weekend so really the court re opens on the day it needs to be submitted.

[diddydicky]

with regard to restons re issuing a DN- notwithstanding that i agree that it would be impossibe to resurrect a terminated agreement - as a second line of defence would they in fact be in possession of a consumer credit licence- without which how can they offer finance!

[diddydicky]

also........ ive spent hours reading this thread one things struck me

 

you went to court on 20 march..

 

how come the court order was dated 17 march (3 days before you went to court?)

 

wierd

[Viscount Stair]

Good question, dd!

 

As for the time extension, you should get one but the problem is that you would have no way of knowing before the original deadline whether you had got one.

 

I did suggest the same thing back handedly but as the riskier of two options.

[fairbyblue]

also........ ive spent hours reading this thread one things struck me

 

you went to court on 20 march..

 

how come the court order was dated 17 march (3 days before you went to court?)

 

wierd

 

The order dated 17/3/09 was as a result of the AQ that I submitted. Prior to the deadline of the return of AQ Restons applied for summary judgement. When they got my defence "pled as is" they wanted to adjourn, which I objected to. Any way it was listed for 20 minutes but now adjourned to 30/6/09 with 1.5hours.

 

So whereas i was doing what the court wanted, they ploughed ahead for summary judgement ( I think someone on here said it was cheaper for them to use that tactic and also to test my resolve)

I think that is dishonest of them as in their application for summary judgement they said I had no defence and no chance of winning.

But they now want more time cos obviously i do have a defence. I do want to submit it but on the strength of all the documents disclosed not some of them.

[Viscount Stair]

I think Car said it and I agreed with him.

 

I fully understand why you would not want to submit a defence on the basis of such documents as Restons deigned to provide at a time of their choosing rather than the court's.

 

Because the original order provided a fixed deadline and it has not yet been moved, you are between the rock and the hard place.

 

If Restons do not serve in time, it is not an issue but, if they do, you have to decide whether to play safe and comply with the original order or take a chance on getting an extension to do the job not in a rush.

 

I don't have enough current experience to say how much of a chance you would be taking.

[fairbyblue]

Obviously I dont want to mess it up so I think I will submit my defence on the docs provided that was for summary judgement hearing but I will beef it up and make loads of references to the fact they have failed to comply with the orders as of the time of submission and that i am at a disadvantage. Hopefully they wont submit anything and the court will confirm that to me on friday.

If i had of missed one deadline I would of been sitting here with a CCJ to my name. Now thats unfair.

[Viscount Stair]

That is the safer course (even if it is unfair you have to take it) and you can always ask for permission to re-amend if need be.

 

If they do serve anything in time to avoid getting struck out, there will need to be a hearing anyway and, assuming they weren't to get SJ (which they shouldn't), further directions would be needed at that stage anyway too, so there would be an opportunity to get leave to re-amend then.

 

Hopefully, it will all be irrelevant.

[fairbyblue]

Cheers. Personally I think they are up the creek but they will carry on hoping i will cave in.

[steven4064]

To answer an earlier question - I don't think you need a N244. You were given permsission to amend your defence by a certain date on the assumption that the claimant would comply with the order by the due date. If they comply late, you should ask that you be given the same time as you would have had had they complied at thet correct time.

 

AS has been said, though, hopefully it is all irrelevant.

[fairbyblue]

Bear with me on this !!!!

They got till 4pm to serve docs on me

Got email from Restons at 15oohrs today with the below documents.

Notwithstanding according to their letter they dont accept emails for service.

example of t and c they sent which is illegible

 

 

For information is the first order with what was required and 2nd is the unless order (They did not post these this is for ease to look at)

 

Firstly the date of statement is wrong as she signed on 30/4/09 and all exhibits are dated 29/4/09.

 

Para 2 is the agreement with no clause 8

 

para 3 refers to tand c as now applies but its illegible and theres 4 pages of that !!!! (example above)

 

She refers to in para 4 default notice dated 27/10/08 (This is the second one) and does not refer to proof of service as in the original order just that it is recreated from their computer records. In the order defo says with proof of service and they have not provided it !!!

 

She referes to in para 5 the first DN and she is not relying on that !!!!

 

In para 6 she just basically says i've had them for summary judgement. I read it as though they had to serve it on me as in the order. So no full account history with charges.

 

So my big question is, Do you think they have complied with order?

[creditcardmug]

The first DN is the only one that counts, and they confirm that it matches their records, and that they wont rely on it!!...so they are stuffed on that one:D...and no proof of service.

 

Point me to the agreement they will be relying on

[Viscount Stair]

The order required service of a copy of the executed agreement, not just a true copy of a generic set of ts and cs. I don't think they have complied but I assume that you would have to make an application to get the action struck out because you would need a ruling that their purported compliance was not actual compliance, if you get my meaning.

 

I have to say I thought they would try to pull some sort of stroke like this, which is why I suggested preparing for the worst as well as hoping for the best.

[diddydicky]

and presumably you would argue that the 2nd DN was of no consuequence or relevance since by the time that was issued you did not have an agreement with them as it had been terminated by the first DN which they are not seeking to rey on!

[Viscount Stair]

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?

[creditcardmug]

and presumably you would argue that the 2nd DN was of no consuequence or relevance since by the time that was issued you did not have an agreement with them as it had been terminated by the first DN which they are not seeking to rey on!

 

Quite

 

VC

This should serve as a warning to others not to communicate by fax/email with them

[fairbyblue]

The first DN is the only one that counts, and they confirm that it matches their records, and that they wont rely on it!!...so they are stuffed on that one:D...and no proof of service.

 

Point me to the agreement they will be relying on

 

Post 103

http://www.consumeractiongroup.co.uk/forum/legal-issues/170484-fairbyblue-mbna-restons-court-6.html

They sent that and also the illegible one

 

The first DN refers to breaching clause 3 and the second one refers to clasue 8.