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

[fairbyblue]

Fairby, I have some interesting information that you could use against restons re. when the account is terminated. I've just had a phone call from a lady in the Compliance Department clarifying what some terms on the Comms Log meant.

 

The one that is really interesting is Charge-Off Code A

 

 

 

I have this conversation recorded, so if you want to use it, let me know and I can send you the recording/witness statement if you need it

 

 

H

 

Oh how I love you !!!!!!!!!!!!!! We need to speak

 

cos have a look at the entry for 31/5/08 which is before the 1st default notice let alone the second.

[heliosfa]

Oh how I love you !!!!!!!!!!!!!! We need to speak

 

Reading your thread is what made me request the Comms log for my OH's account, and it shows the same - charge off prior to Default, hence why I queried it with the Compliance Department

 

 

I've sent a copy of the recording to Supasnooper, and he and the site team are going to figure out the best way for it to be admitted as evidence.

 

 

When do you need to submit witness statements for? and i am just wondering how you add an extra witness...

 

H

[fairbyblue]

Reading your thread is what made me request the Comms log for my OH's account, and it shows the same - charge off prior to Default, hence why I queried it with the Compliance Department

 

 

I've sent a copy of the recording to Supasnooper, and he and the site team are going to figure out the best way for it to be admitted as evidence.

 

 

When do you need to submit witness statements for? and i am just wondering how you add an extra witness...

 

H

Fantastic. My defence has gone in but it does say about charge off on 31/5/08. So the onus is on them to prove that charge off is not terminating. The witness exchange is by 24/7/09. Dunno how I call witnesses but Dianne powell has submitted statemnt from MBNA so shes number 1 on the witness list to explain comms log. Cheers

[diddydicky]

Fantastic. My defence has gone in but it does say about charge off on 31/5/08. So the onus is on them to prove that charge off is not terminating. The witness exchange is by 24/7/09. Dunno how I call witnesses but Dianne powell has submitted statemnt from MBNA so shes number 1 on the witness list to explain comms log. Cheers

 

don't want to dampen your ardour but on its own it may not be enough to prove termination especially as they show a DN being issued afterwards

 

it MAY be an internal accounting whereby the balance is moved to some other account as it is about to be defaulted- or perhaps being signed offf the books prior to selling the debt on - just thought you might want to be aware of the possibilities

[heliosfa]

don't want to dampen your ardour but on its own it may not be enough to prove termination especially as they show a DN being issued afterwards

 

it MAY be an internal accounting whereby the balance is moved to some other account as it is about to be defaulted- or perhaps being signed offf the books prior to selling the debt on - just thought you might want to be aware of the possibilities

 

Sorry diddy, MBNA have actually said that Charge-Off Code A is the account closure.

 

H

[diddydicky]

Sorry diddy, MBNA have actually said that Charge-Off Code A is the account closure.

 

H

 

yes i know- but you have to look at what explanation THEY might give to a court in defence of it and my point was (and i hope i am wrong) that they may argue that this is an internal accounting procedure whereby the debt is taken of a LIVE account and put into some other account for the purposes of enforcement or that in fact it had been written off as it was due to be part of a batch sale of bad debt.

 

forearmed is forewarned if it was me i would have a batch of questions prepared if they came up with some such explanation

[pompeyfaith]

Well i was told in court that they can re-open the account and start over the litigation.

 

So time will tell if I start getting statements though the post again.

 

I will let you know if I do

 

PF

[pompeyfaith]

But i will add the above is contrary to case law, as surely if thay have had two attempts at getting the Default Notice right and failed they should not have a third.

 

PF

[diddydicky]

But i will add the above is contrary to case law, as surely if thay have had two attempts at getting the Default Notice right and failed they should not have a third.

 

PF

 

yes it is VERY simple

 

 

if they have terminated the account (and starting an action by demanding the full amount due is about as clear confirmation of temination as they can get then they cannot issue any default notices against the account because the account no longer exists!!

[WelshMam2009]

yes i know- but you have to look at what explanation THEY might give to a court in defence of it and my point was (and i hope i am wrong) that they may argue that this is an internal accounting procedure whereby the debt is taken of a LIVE account and put into some other account for the purposes of enforcement or that in fact it had been written off as it was due to be part of a batch sale of bad debt.

 

Prior to my Charge Off Code A entry, is a line confirming that another account number has been opened...

 

However, it begs the question as to why the DN, issued after charge off, states that the account will be closed and the agreement terminated.

 

I think it is important not to confuse accounts with agreements as they are not necessarily one and the same.

 

Well i was told in court that they can re-open the account and start over the litigation.

 

The agreement is a legally binding contract between 2 parties. If one party terminates the agreement they can't then create a new contract without the consent of the second party. There must be loads of case law to support this.

 

Your issue PF seems to be more that the Judge didn't believe that the account had been terminated.

[fairbyblue]

Got the order today and I think i missed something when i was at the hearing cos i dont remember the Judge talking of costs to MBNA.

I think it will be a wake up to them on monday when they get their written order.

 

I reading it as though its a put up or shut up type of order. anyone has any thoughts as to their next step.

 

Will they pay the £600?

 

[diddydicky]

Prior to my Charge Off Code A entry, is a line confirming that another account number has been opened...

 

However, it begs the question as to why the DN, issued after charge off, states that the account will be closed and the agreement terminated.

 

I think it is important not to confuse accounts with agreements as they are not necessarily one and the same.

 

 

 

The agreement is a legally binding contract between 2 parties. If one party terminates the agreement they can't then create a new contract without the consent of the second party. There must be loads of case law to support this.

 

Your issue PF seems to be more that the Judge didn't believe that the account had been terminated.

 

 

thats the point i was trying to make - they are going to argue that they were transferring the account from one account to another (some sort of internal delinquent accounting system etc) - and not terminating the agreement- they would than back up their argument by saying look judge you can see we didn't terminate because we then issued a DN

[WelshMam2009]

thats the point i was trying to make - they are going to argue that they were transferring the account from one account to another (some sort of internal delinquent accounting system etc) - and not terminating the agreement- they would than back up their argument by saying look judge you can see we didn't terminate because we then issued a DN

 

Yep...I'm begining to see how they think Diddy!!

[WelshMam2009]

Will they pay the £600?

 

Depends how confident they're feeling FB.

 

£600 won't deter a large organisation. I imagine their costs are presently running into thousands...

[diddydicky]

Depends how confident they're feeling FB.

 

£600 won't deter a large organisation. I imagine their costs are presently running into thousands...

 

if they are dodgy ground they any well not want to blow another 600 quid and sometimes this is a nod an a wink from the judge that he thinks they should think carefully about proceeding

[heliosfa]

thats the point i was trying to make - they are going to argue that they were transferring the account from one account to another (some sort of internal delinquent accounting system etc) - and not terminating the agreement- they would than back up their argument by saying look judge you can see we didn't terminate because we then issued a DN

 

That's why I am going to be trying to get them to confirm the termination date of my OH's agreement on monday

 

 

 

I'm just thinking that it would be good if there was some way for the court to order MBNA to reveal what was contained in the Comms Log prior to those "Special Fraud" entries? They will probably still have a record of what was there / backups, and it could be usefull to find out what WAS there.

 

H

[fairbyblue]

That's why I am going to be trying to get them to confirm the termination date of my OH's agreement on monday

 

 

 

I'm just thinking that it would be good if there was some way for the court to order MBNA to reveal what was contained in the Comms Log prior to those "Special Fraud" entries? They will probably still have a record of what was there / backups, and it could be usefull to find out what WAS there.

 

H

 

Exactly but I think the're knackered cos the sent 5 letters asking for full or partial settlement so it had to be terminated so they could produce a figure such as 50% or 40% of the total:D

[Viscount Stair]

Aren't we all missing the wood for the trees here?

 

Termination is not the only thing that requires a DN under section 87(1): demanding earlier payment and bringing proceedings (both of which they have done) are also on the s87(1) list.

 

Doing any of the three things without serving a valid DN first is repudiation.

 

Whether they have terminated as well could well be a red herring.

[WelshMam2009]

Aren't we all missing the wood for the trees here?

 

Termination is not the only thing that requires a DN under section 87(1): demanding earlier payment and bringing proceedings (both of which they have done) are also on the s87(1) list.

 

Doing any of the three things without serving a valid DN first is repudiation.

 

Whether they have terminated as well could well be a red herring.

 

Totally agree VS!!

 

But I think the issue is more to do with creditors issuing subsequent DN's.

 

There appears to be nothing to stop them halting proceedings, issuing a fresh compliant DN and then starting all over again!!

 

At least, that's what the Judges seem to be allowing...

[banker_rhymes_with]

Hello WM2009!

 

There appears to be nothing to stop them halting proceedings, issuing a fresh compliant DN and then starting all over again!!

 

At least, that's what the Judges seem to be allowing...

The problem here is we are in danger of spinning around in ever tighter what-if circles.

 

The key issues remain that they need a valid s87(1) Default Notice if they wish to do any of the things on their s87 wish list:

 

Need for default notice.

 

87.

 

(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.

If they do any of the things listed in s87, as VS has pointed out, then that confirms they regard the Agreement has ended. They are clearly enjoying the benefits of s87 as if they were entitled to them. The Ticket required for entry to that little show is otherwise called a valid Default Notice.

 

However, those benefits are only lawfully due to them if they already have a valid Default Notice. If it comes to light that they do not already have one, and yet have ploughed ahead doing things as if they did, then it is tough beans on the Claimant. They've used up their one opportunity the Act allows them via s87/s88 to lawfully bang out of a Regulated Agreement that was already in default by the Consumer...and they blew it!

 

Once they cross the line and enter s87 benefits territory, they do not get a second chance to create the very thing needed to cross that line.

 

They have proceeded to enjoy something to which they were not entitled. They failed to secure the necessary Default Notice before doing so. They can't remedy that mistake by jumping back over the s87 line and pretending they never crossed it.

 

Once the Agreement is ended, it has ended. Stopping proceedings and starting them again after issuing a fresh stab at another Default Notice issued on an Agreement that has plainly ended, is a bit of an old wives tale. I agree it is one that they can and may try, just as they can and may say the M1 has a 250mph speed limit because nobody has been convicted going that fast.

 

However, they would be just as unlikely to prove that point by buying a Motorcycle that can do 260mph and testing the 250mph M1 speed limit concept, as they would be in stopping proceedings, issuing a fresh Default Notice on a dead Agreement, and trying pot luck second time around in Court!

 

The fact that such things can be attempted, and may have very short term limited success (with a bit of luck and a tailwind), doesn't make them right or repeatable if given the appropriate level of scrutiny by the Police and/or an Appeal Judge (as applicable).

 

The Claimant would need to win the National Roll-Over Judge Lottery to win on that argument. In any event, any celebration would be short lived, because it would be shot down in flames when Appealed.

 

Rather than us going over and over the same points, perhaps a fresh injection of Surfaceagentx20's well crafted words would be useful:

 

An ineffective default notice will prohibit the Claimant recovering all those things on which the service of an effective default notice is dependant. In short, the claim will be reduced to just the arrears, See Woodchester v Swayne.

 

By when proceedings have commenced the Claimant will have terminated the agreement. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally. The debtor would be unlikely to agree to reinstatement if to do so would cure the Claimant's difficulties.

 

x20

And this...

 

Wherever a DJ is leaning towards declaring a DN effective where it plainly is not, let him know (as politely and deferentially as humanly possible) that if he carries on leaning that way, you will require him to set out his reasoning as part of his judgment and that you want him to spell out his reasoning so that it forms part of the record for appeal purposes. That should sharpen him up a bit.

 

x20

Cheers,

BRW

[gill5blue]

Hi

I have read this thread over the past two days and it is interesting to see farbyblue start at not having a clue to taking on solicitors-fantastic.

I have been reading this thread because it has a similar feel to my own problem.

I now wish to ask for help on my own thread 'claim from MBNA' sorry I do not know how to do a link. I have asked for help but to no avail, PLEASE can you help me

gill5blue

[creditcardmug]

Hi

I have read this thread over the past two days and it is interesting to see farbyblue start at not having a clue to taking on solicitors-fantastic.

I have been reading this thread because it has a similar feel to my own problem.

I now wish to ask for help on my own thread 'claim from MBNA' sorry I do not know how to do a link. I have asked for help but to no avail, PLEASE can you help me

gill5blue

 

Here is the link, i will subscribe to it as well

 

http://www.consumeractiongroup.co.uk/forum/mbna/97211-claim-mbna.html

[WelshMam2009]

Thanks B_R_W will take a good read later!!

 

Perhaps you should apply to become a DJ...and I don't mean the night time variety!!

 

Won't add anymore for fear of clogging up and confusing FB's thread...

[fairbyblue]

Well got their reply to my defence, What do you all think?

Below is my amended defence as well as the 2 previous statements.

Now looks as though the are only talking of arrears, yet on POC they want full amount

 

 

. I, XXXXX, 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 agreement.

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

11. In the ‘Customer Information System’ marked NRF9 (Copy is attached) it states that I have received 5 letters demanding full payment, and or percentage sum of the total owed after the issue of the Default notice dated 18th June 2008 (NRF1) therefore terminating the on going agreement.

12. The dates on the letters are 9th July 2008, 10th July 2008, 4th August 2008, 2nd September 2008, 7th October 2008.

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

14. Even though payments were made on the account the amount to remedy remained at £1601.39 on both default notices showing in fact it had been terminated.

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

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

17. The language of a default notice is framed on the basis there is a current agreement. That language is prescribed. If the Claimant terminated the agreement, to deliver an effective default notice will involve the fiction the agreement is current and never terminated. It would also involve the Claimant reinstating unilaterally.

18. I have not reinstated the agreement

19. However, the Claimant has also failed to set out the Default Notice dated 27th October 2008 in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561), which consequently failed to comply with the requirements because of at least three deficiencies. Specifically, it failed to be accurate due to;

20. It failed to have name of creditor

21. It failed to have address of creditor

22. In paragraph 8 it states “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).”

23. These are the arguments as well as the contents of my 2 previous statements on which I will be relying.

[citizenB]

Is that it