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

[banker_rhymes_with]

Hello FB!

 

Heres the email i sent to restons

 

Dear Mr Bouchier

 

Further to the offer i now refuse it and point out that the amount outstanding is £1601.39. Otherwise I will see you in court on Friday

 

I will accept if you change part iii to

(iii) You repay the outstanding balance under the credit agreement of £1601.39 by monthly instalments of £12.00. The first instalment to be received hereby 31st August 2009. The rate of repayment to be annually reviewed with an expectation that it should increase should your financial circumstances improve

 

Please respond

ASAP

 

Great, that's more like it I think.

 

If they agree, then that's it sorted more or less.

 

If they don't agree, then that will tell you they were indeed after that £11.2k admission of Debt, and suggests they were indeed planning on nailing you with it.

 

If that is the case, you have no real option but to go to Court to bring the matter to a head. Call their bluff.

 

Cheers,

BRW

[pompeyfaith]

in my case i agreed to £20 a mth but it cannot go up as it was set by a judge but i am now going 4 a set aside as fraudulent docs where used

[fairbyblue]

Ok Ok nearly made a boo boo there. Emailed them and phoned them just to confirm i will be in court on friday unless they accept the £1601 figure.

[banker_rhymes_with]

Hello FB!

 

Ok Ok nearly made a boo boo there. Emailed them and phoned them just to confirm i will be in court on friday unless they accept the £1601 figure.

 

Phew, you had me worried there!

 

OK, if they agree to the £1.6k figure, fine tune the actual wording to say you agree to pay them £12 a month, and stop it there.

 

Don't give them a right to start bothering you, or else they will just hassle you for the next 11 years to try and get the payments raised.

 

If you shake hands with this lot, do count your fingers afterwards.

 

Cheers,

BRW

[diddydicky]

Is that not without prejudice he cant bring it up in court?

 

 

Good point

 

However i think that "without prejudice" is not as simple and all encompassing as one would believe it to be and certain things cannot always remain without prejuduce even if the document is so headed (worth googling it and reading some references)

[banker_rhymes_with]

I think it's important to realise that the WITHOUT PREJUDICE only covers these offers while they are being negotiated behind the scenes.

 

IOW, they are hiding behind this while a deal is being negotiated.

 

I really doubt they will head any confirmation letter WITHOUT PREJUDICE...that will be dropped on the acceptance letter for FB to sign.

 

That's what they want, an OPEN LETTER/Agreement, with FB's signature, that says he will pay them £11.2k via small payments that can be increased.

 

Roll forwards a few months/years when FB has missed a payment (either by accident or by design on their part), and they will roll straight into Court to enforce the new £11.2k Signed Agreement made in August 2009.

 

Danger Will Robinson!

 

Cheers,

BRW

Edited August 5, 2009 by banker_rhymes_with
Tripe-O

[supasnooper]

Hi fb,

 

Please to see you have acted on BRW noticing the £11.2k repayment.

 

Give Restons a tough time over this............why do you think they wish to settle early ?

 

Stay strong, you're nearly there !

[tiokim]

My concern is that FB case is based on proving that the second DN was issued after the agreement was terminated. Is the agreement itself not enforceable? Are we sure that FB has enough material in his defence to prove the termination before the second DN?? I agree, the fact that they made this offer may signal FB is with a winner case.

[AA99]

I nearly had a blue fit when I saw you had agreed to repay the £11,000 and not the £1600 as you had originally requested:eek: So glad that others managed to get to you quickly to rescind the offer;)

 

Gosh:shock:me too FB:shock: Hang on in there ! I've been to court today under quite different circumstances and it can appear quite daunting but the Prosecution Barrister and the Judge and the (don't know what they're called) persons on either side of him, only appear to 'judge the case' on the law by the book, to the very letter. So I got the impression that if one can defend oneself by the book and to the very letter, then they all seem to nod and agree between themselves:rolleyes:.

 

[fairbyblue]

And this is what they have now sent. Looks like i will see them on friday. Shall i respond to his email?

 

Without Prejudice

I refer to your recent telephone conversation with my colleague.

The Bank will not agree to merely accept £1601.39 in settlement of this account.

The executed credit agreement – containing the prescribed terms – is within the Court papers and it is enforceable. I am not sure why you have been advised it is not. Are you able to explain why the agreement does not comply with the CCA?

It is clearly open to the Bank as a creditor to serve a new default notice and claim the full balance. If the earlier default notice did not comply with the CCA or regulations made under it as you allege then the agreement could not have been terminated and the fact you have received correspondence indicating the contrary is immaterial. In any event termination of the account does not mean that the liability disappears.

The Bank is still prepared to reach a sensible conclusion on this matter.

Yours

[diddydicky]

And this is what they have now sent. Looks like i will see them on friday. Shall i respond to his email?

 

Without Prejudice

I refer to your recent telephone conversation with my colleague.

The Bank will not agree to merely accept £1601.39 in settlement of this account.

The executed credit agreement – containing the prescribed terms – is within the Court papers and it is enforceable. I am not sure why you have been advised it is not. Are you able to explain why the agreement does not comply with the CCA?

It is clearly open to the Bank as a creditor to serve a new default notice and claim the full balance. If the earlier default notice did not comply with the CCA or regulations made under it as you allege then the agreement could not have been terminated and the fact you have received correspondence indicating the contrary is immaterial. In any event termination of the account does not mean that the liability disappears.

The Bank is still prepared to reach a sensible conclusion on this matter.

Yours

 

best ignored IMO

[fairbyblue]

And this is what they have now sent. Looks like i will see them on friday. Shall i respond to his email?

 

Without Prejudice

I refer to your recent telephone conversation with my colleague.

The Bank will not agree to merely accept £1601.39 in settlement of this account.

The executed credit agreement – containing the prescribed terms – is within the Court papers and it is enforceable. I am not sure why you have been advised it is not. Are you able to explain why the agreement does not comply with the CCA?

It is clearly open to the Bank as a creditor to serve a new default notice and claim the full balance. If the earlier default notice did not comply with the CCA or regulations made under it as you allege then the agreement could not have been terminated and the fact you have received correspondence indicating the contrary is immaterial. In any event termination of the account does not mean that the liability disappears.

The Bank is still prepared to reach a sensible conclusion on this matter.

Yours

 

 

If he bothers to read my statement its all in there!!!

 

As for the DN's they are snookered, how many do they need?

 

The termination seems pretty final to me.

 

The bank is prepared to reach a snesible conclusion, no they are not. well see you on friday and make sure Dianne from MBNA is there.

 

They caught me at weak moment.

[empowered]

Good for you FB - even if Friday's decision comes down on their side, you have called all the shots and you have absolutely nothing to lose now..... you were even prepared to pay their £11000.00! They are playing a mind game by contacting you at this last minute;)

[bazaar]

FB, It seems they are getting all this BS in now to try and make you fold. Go over your arguments again, try to keep a clear head. get back to the basics of your case now that you know what buffer was up to in getting you to admit the debt. Get the details right in your mind, IE for additional charges, DN incorrect and wrongful termination.

[fairbyblue]

What was i thinking, i nearly wavered if it wasnt for you guys (and gals) The DNs are both invalid (one admitted by them and 2nd wrong amounts and no n/address of creditor) and the CCa is not enforceable not complete. In boucher statement he submitted it said that they are allowed to vary the t and c but in CCA they are using nowhere does it say they can. it is refered to in another document and they have never produced it. He has assumed it is complete. Loads of 'deletes on comms log' from mbna which needs explaining by them. Plus got a letter of termination from managing director of Restons saying its temrnated, so how can they issue further DN's?

 

Roll on friday !!!!!!!!!!!

[cashins]

If the earlier default notice did not comply with the CCA or regulations made under it as you allege then the agreement could not have been terminated and the fact you have received correspondence indicating the contrary is immaterial.

 

Rubbish and they know it.

 

Failing to issue a correct default notice does not prevent termination, it just makes it unlawfull.

 

David

[diddydicky]

What was i thinking, i nearly wavered if it wasnt for you guys (and gals) The DNs are both invalid (one admitted by them and 2nd wrong amounts and no n/address of creditor) and the CCa is not enforceable not complete. In boucher statement he submitted it said that they are allowed to vary the t and c but in CCA they are using nowhere does it say they can. it is refered to in another document and they have never produced it. He has assumed it is complete. Loads of 'deletes on comms log' from mbna which needs explaining by them. Plus got a letter of termination from managing director of Restons saying its temrnated, so how can they issue further DN's?

 

Roll on friday !!!!!!!!!!!

 

havnt read the whole thread FB but IMO is IS important that you make the point to the court that has just been made:-

 

the faulty DN does NOT mean that the termination cannot be made- but that it is an unlawful termination and that you have accepted their unlawful termination therefore a legally binding contract no longer exists upon which a default notice can be issued

 

(sorry if has already been pointed out)

[diddydicky]

is this any use:-

 

In*Golden Strait Corporation v Nippon Yusen Kubishka Kaisha*[2007], Lord Bingham said:

 

'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract. The injured party is thereupon entitled to recover damages against the repudiator to compensate him for such financial loss as the repudiator's breach has caused him to suffer. This is elementary law.

[fairbyblue]

Restons have sent another email !!!! see text in blue

 

The executed credit agreemnt that they have produced does not have a para 10 and no where in there does it say they can vary the terms there loads of little references in the agreemnt to see later paras but they have never produced the whole agreement.

 

They have sent a set of generic terms and conditions that they say apply but no where in original agreemnt does it give them the power to do that. because they have not produced the whole original agreemnt

 

and anyway para 10 also says they should write to me to terminate if it for something else other than a breach and they havent.

 

And they dont have to rely on the DN. You have to laugh

 

The Bank cannot accept only £1601.93.

You will note in your terms and conditions par 10 that the Bank has the right to contractually terminate the agreement at any time - if it does so you are liable to repay the outstanding balance. In other words the Bank does not have to serve a default notice which is only required if the Bank wants to bring the agreement to an end because of a failure to pay arrears or some other breach.

Paragraph 10 allows the Bank to terminate the agreement for any reason i.e. not a reason based on a breach of the agreement.

In other words the Bank does not have to rely on the default notice.

The Bank will prepared to settle amicably by agreeing a total figure which is less than the balance but cannot accept what has been offered thus far.

Edited August 6, 2009 by fairbyblue

[Gazza112]

Hi fairbyblue

 

What a load of cobblers there giving you.

I've got an MBNA Credit card agreement when i took the card out in 2002, and Paragraph 10 don't say anything about the bank can terminate the account at any time.

Paragraph 10 on mine says ( Loss, theft or misuse ).

 

Good Luck with your case tomorrow.

 

 

Gaz

[fairbyblue]

Hi fairbyblue

 

What a load of cobblers there giving you.

I've got an MBNA Credit card agreement when i took the card out in 2002, and Paragraph 10 don't say anything about the bank can terminate the account at any time.

Paragraph 10 on mine says ( Loss, theft or misuse ).

 

Good Luck with your case tomorrow.

 

 

Gaz

 

I have the latest set and par 10 does say

 

We may end this agreement at any time if we write to you first to tell you that we are going to do so. If we have a valid reason we may end the agreement immediately and write to you as soon as we can afterwards, to tell you why we have done so

 

My argument is they cant use latest set as the have not produced the full original agreemnt it is incomplete and only goes upto para 3b and no where on that agreemnt does it allow them to vary the terms and conditions.

 

If they manage to get to this set of t and c they have not written to me as i have comms log, and what reason are they giving and why is it not in court.

[banker_rhymes_with]

Hello FB!

 

They should have a couple of problems with this.

 

Any Clause that says they can Terminate and ask for full payment at any time, is highly likely to be seen as an Unfair Term. You may have grounds to rebut that via UTCRR alone:

 

Statutory Instrument 1999 No. 2083

 

However, the facts appear to be that they regarded you as being in default, and issued a Default Notice...the clue being in the name.

 

In a claimed Consumer default situation, the Act requires that they follow the steps outlined in s87 and s88 if they wish to end the Agreement and move on to enjoy the benefits of s87:

 

The Consumer Credit Act 1974

 

If they wish to claim they can Terminate another way, then what way, exactly, would they be claiming they can do this that is compatible with the Act? It's a Regulated Agreement remember, and that binds their Client to behave in a certain way, or suffer the consequences.

 

I think they are perhaps trying to say they can rely upon s76 or s98. There are no other ways to jump out of a Regulated Agreement that I am aware of, other than s76, s87/s88 and s98. Spot the ones not to be used in a default situation!

 

Two small problems there, namely: s76(6) and s98(6). Those sub-sections confirm that neither Sections are to be used in a default situation. At that point wave the Default Notice in the air, and point out every single mention of the word default in any letters, or threats, or if stated in their POC or any Witness Statements. Smile at the Judge and then wink at the opposition.

 

In other words the Bank does not have to rely on the default notice.

 

If it waddles like a default situation and quacks like a default situation, then it's a default situation and they are obliged to follow s87 and s88 if they wish to end an Agreement and then enjoy the benefits of s87.

 

Was their latest email WITHOUT PREJUDICE too?

 

If not, then first thing you do is mention how the Claimant has tried to intimidate you before Court.

 

Cheers,

BRW

[fairbyblue]

 

Was their latest email WITHOUT PREJUDICE too?

 

If not, then first thing you do is mention how the Claimant has tried to intimidate you before Court.

 

Cheers,

BRW

 

No. Ive not reponded and no intention of. Thats the first thing getting hurled at them;)

[lexis200]

 

Two small problems there, namely: s76(6) and s98(6). Those sub-sections confirm that neither Sections are to be used in a default situation. At that point wave the Default Notice in the air, and point out every single mention of the word default in any letters, or threats, or if stated in their POC or any Witness Statements. Smile at the Judge and then wink at the opposition.

 

 

 

Cheers,

BRW

 

I have such a good mental picture now of FB with an OHP pointing all the times DEFAULT is shown anywhere in a very ott am dram type way, then winking Betty Boop stylie at the bank's sols:D

 

Is that close to how it would be? Please say yes:lol:

[fairbyblue]

I have such a good mental picture now of FB with an OHP pointing all the times DEFAULT is shown anywhere in a very ott am dram type way, then winking Betty Boop stylie at the bank's sols:D

 

Is that close to how it would be? Please say yes:lol:

 

I might even do a powerpoint !!!