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

[robcag]

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THey are applying for summary judgement and court date is 20/3/09.

 

So I am going and defending the application for summary judgement. (see post 183) ,however i dont know how nor the case law relating to the DN and the faked 2nd DN

 

Do you have ant info that they should only serve one DN and even that first one was not served correctly in prescribed terms ie the dates are wrong

 

Hi fairbyblue

 

It amazes me that Restons (and other similar scumbags) continue to use the same cr@p arguments when they know full well they are in the wrong.

 

They tried exactly the same thing with me before they had to give up (discontinued at the last minute) after I used the invalid DN angle in my defence (noticed by and defence provided by pt2537). They also tried to seek permission from the court for time to re-issue the DN and re-start the proceedings from that point on.

 

Have a read of letters 1 and 2 at this post, in which they actually admitted they could not win as matters stood because of the invalid DN (less than 14 clear days allowed, as in your case).

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended-14.html#post1527558

 

As things stand, if you stick to your guns and submit the right arguments you have the same chance of beating the barstewards that I had!

 

Cheers

Rob

Edited March 9, 2009 by robcag
punctuation

[robcag]

Hi FB

 

If you PM me your email address, I'll email you my WS, which hopefully might give you an idea or two.

 

When I was in court when Restons were applying to re-issue a correct default notice and re-commence proceedings to their suggested schedule, I verbally argued against that, stating that as the account had been terminated then that should be the end of it as they could not default and terminate something which did not exist.

 

I think I described in my account of the court appearance that the Judge seemed to consider this but she did not actually make a ruling on it. There was some discussion about that point in my thread as there has been elsewhere, but as Paul (pt2537) and others have said, if they are allowed to re-issue corrected DNs willnilly then the matter could go on forever.

 

Cheers

Rob

[robcag]

Its en route as we speak. I read your post last night and was impressed!!!!

 

WS emailed.

 

Good luck!

 

 

Also add something along the lines of – for avoidance of doubt ‘the further action set out below may be taken against you’ is a statutory requirement to be included in any default notice issued in accordance with s87 of the Consumer Credit Act 1974 and the use of the word *may* does not negate the specific use of the word *will* within the statement ‘the agreement will be terminated’

 

Just in case they try and hoodwink the judge. Which is exactly one of the cunning stunts which Restons barrister tried to pull in court against me!

 

MBNA had no choice but to include the word may because the wording is decided for them – they had a choice to say we might terminate but they decide to be unambiguous and state we will terminate – you might need to labour this point at the hearing.

 

Don’t forget the original DN is the written evidence that needs to be referred to in your witness statement.

 

 

If they defaulted and then terminated you, then I dont think they can default you a second time. In essence, having terminated you previously the relationship is at an end. How can you default something that doesnt exist ?

 

Totally agree CB!

 

Rob

[robcag]

Hi fb

 

Just had a quick look at your WS.

 

I haven't read your complete thread so I'm not aware of all the facts and what you put in your defence.

 

Did you ever remedy the original DN (even though invalid) by making the requested payment before the date given? - [Just trying to establish whether there was any reason for the account not to have been terminated at that point, therefore IMHO giving MBNA the opportunity to issue the later DN]

 

If not, then (again, just my humble opinion) I think para 29 could be moved further up the list maybe with some context about the wording of the DN regarding the fact that MBNA said they WILL terminate the agreement, and then somewhere further down [where you have mentioned the second DN] inserting something along the lines of "the agreement having already been terminated, MBNA cannot then issue a further DN threatening termination for a second time because there is nothing to terminate."

 

Also IMO (bearing in mind I haven't read all your thread or defence) the stuff at para 12 seems to have just been dropped in out of context. I think you need to add some context here if you wish to use those bits.

 

Cheers

Rob

[robcag]

 

If not, then (again, just my humble opinion) I think para 29 could be moved further up the list maybe with some context about the wording of the DN regarding the fact that MBNA said they WILL terminate the agreement, apologies fb, I see you've already done that in para 30 , in which case (IMO) move para 30 up with para 29.

 

 

Cheers

Rob

[robcag]

Hi fb

 

does para 54 apply to your case?

 

Cheers

Rob

[robcag]

Hi fb

 

I've been trying to read through your thread between doing other stuff (I've just got to page 10).

 

Unless I've missed it, would I be right in saying you haven't actually submitted a fully particularised defence yet?

 

If that is so, then IMO I think it would be a good idea to include in your WS some detailed reference to the relevant sections of the CCA1974 which deal with the importance of the creditor issuing a valid DN.

 

These are s.87-88, see; Consumer Credit Act 1974 (c. 39) - Statute Law Database

 

I know when I had to attend an application hearing caused by Restons there was much discussion of these points, and I think the Judge was swayed by my arguments regarding this.

 

IMHO, from what I have read on these forums, technically/theoretically MBNA are not entitled to bring this action as they have failed to comply with s.87-88

 

As I pointed out further up the thread, in my case HFC/Restons finally admitted (just before they were forced to discontinue) that they could not win their claim as matters stood, i.e. because of the defective DN.

 

I'm just pointing this out because not all Judges will 'read between the lines', so to speak, and it might be better if you bring this up before the hearing. At least if it's included in your WS then Restons or the Judge can't say it's inadmissable because you haven't brought it up prior to the trial - that's if things get that far.

 

FWIW, I'm not averse to you copying the letter (and my DN) which I posted on my thread, and using it against Restons to show them the error of their ways (not sure if that's permissable though). I would even let you have my claim number by PM if it would help.

 

Maybe someone with more knowledge of the legal system would care to comment on that last suggestion.

 

Cheers

Rob

[robcag]

Hi Robcag,

 

I am a similar position as FB( defective DN) but I have filed a complete and extended defence and Restons have not applied for a SJ against me. I am now in the process of giving the courts directions and I would like to use the letter from Restons to the courts in your claim against them. They have now written to me and stated that they can issue another DN(I don’t think they can). I would like to write back attaching that letter where they have admitted the claim against you could not proceed as matters stood. The interesting thing is that the letter to me and the letter sent to the court in your case are written by the same Mr Bouchier, it must be totally vexatious his behaviour (I can’t post anymore right now, critical phase).

Would you let me use it please?

 

FB, Sorry to use your thread for my benefit

 

Hi tiokim

 

What have I done making those suggestions?!

 

It might be better to wait for some informed opinion before going down that route, but having said that I have no objection to you using either or both of those 2 letters.

 

You can either copy & paste from the forum or I can email them if the quality is not good enough.

 

You will notice that in there somewhere Restons also put forward the argument that they could re-issue a correct DN which I think most of us on here would say is illogical. Obviously for you to succeed in arguing against that would depend on how well you put your case and the Judge.

 

Good luck!

 

Cheers

Rob

[robcag]

Well all done and dusted. The statement and exhibits gone off to Restons and the court. So if anyone from restons is readin this look out for a big brown envelope and sit down, put the kettle on and have a read !!!!!

Bring it on!!!!! See you in court on the 20th.

 

Hi fb

 

It'll be interesting to see if those letters have any effect on anything.

 

Good luck!

Rob

[robcag]

I am really fuming they should put up or shut up !!!! Its just another tactic. Is this normal practice? They wanted it, and cos they recieved loads of problems they want adjournemnt. Do I look like the bad guy?

 

Hi fb

 

Restons (and probably most of the other opponents you will come across in these situations) are slimeballs to the power of n.

 

In my case (application hearing called by HFC/Restons), the local (from 80+ miles away) barrister representing Restons was squirming when he was trying to explain HFC/Restons position and the reason for delays and not complying with the orders of the court at various stages of the process, was now saying that although HFC had stated that they had intended that my alleged debt might be sold to an unknown third party, that this was not the case now, and they now wished to proceed.

 

Lots of 'mights' and 'maybes' were injected into the scenario, which seemed very strange to me at the time.

 

It now transpires that Marlin/Phoenix are claiming to have been assigned the debt 2 days before said court hearing when Restons barrister was claiming the exact opposite!

 

What I'm trying to say here is, like you've realised, Restons are on their back foot which now seems to be calling for them to attempt to re-structure their case, much as it was with me.

 

Just my opinion, but I think if I was you I'd keep in touch with the court by phone to see if any applications are submitted over the next few days so that you find out their intentions at the earliest opportunity, giving you the chance to object.

 

Good luck

Rob

[robcag]

Good luck on Friday Fairy

 

Hi Craftygirl42

 

I called him fairy in my first reply to this thread, but I don't think that's quite right (if you look closely)!

 

Any comments please and something about me wanting costs. I want this to go ahead on cos i dont want them doing a 'now you see it now you dont' with anything.

 

 

I note your comments however I feel it is time to direct you in some points that you need to be aware of.

 

 

1. If 'insufficient time' is the reason that an adjournment is granted it is for the record that it is the Claimant ie MBNA/Restons who have asked the court for 20 minutes of allocated time without me being in agreement or even informed that is what you intended to do.
   
2. It transpires that your case is not as straightforward as you believe it to be
   
3. My statement is in response to your application for summary judgement as it was made.
   
4. Therefore it is not my fault you have asked for 20 minutes of court time.
   
5. May I refer you to the letter dated 1/12/08 sent my me to your good selves and marked NRF4 and is in your possession.
   
6. This document was and still is a Request under CPR 31.14 for the disclosure of the documents stated in the letter and that it should be acted upon within the given time limits.
   
7. You have not fully complied with this request
   
8. The statements served to date makes it abundantly clear that this was never an appropriate case for summary judgement.
   
9. The fact that you require more time indicates that there are points to be argued and you have not prepared thoroughly and are wasting court time
   
10. I wish this to be dealt with at the earliest opportunity and is listed for 20th March 2009
     
    

 

Hi fb

 

It looks like you've got Restons quietly cr@pping themselves!

 

IMHO I think it probably goes without saying that you need to print out 3 copies of all the email correspondence you have been reporting here to take with you to the court, just in case it's needed.

 

Again, IMHO, I think it would be nice if you could include a sentence in your above list which included the words ".... in an attempt to mislead the court (and/or me)....."

 

That always impresses me when I see it, hopefully it would have an effect on the Judge!

 

Cheers

Rob

[robcag]

Hi fb

 

I'm no expert so I can't give you any definitive answers on this, just opinions.

 

It seems Restons are attempting to wriggle their way out of this DN issue by claiming exactly the same as they argued in my case, ie it is permissable to re-issue a DN.

 

If you read my account of my court appearance for an application hearing called by Restons you will see Restons barrister tried a similar tack, and the Judge even gave him an hour to take further instruction from (presumably) Restons after he claimed he had heard 'on authority' that it was permissable 'to adjust' a DN.

 

My account;

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended-15.html#post1535858

 

As I think we discussed further up your thread, I think you will have to argue strongly (as I did) the logic that the account has been terminated as per the original DN and cannot therefore be defaulted again. Point out the caselaw bit which states "the CCA1974 was put in place for the protection of the consumer....and not to assist the creditor ... etc."

 

State the creditor, being a large banking organisation, was given the opportunity to issue a correct DN and it was their own fault that they got it wrong. Make the point that if an account can be defaulted after being terminated, then the claimant could go on forever defaulting and terminating until he managed to get it right!

 

And who is this Dianne Powell? Why is she being quoted? Surely that is all hearsay? Shouldn't she have to sign some sort of Witness Statement for her evidence to be admitted? Sorry I don't know the answers to that one, but maybe somebody else will be along.

 

I still think you have restons in a corner, bear in mind they may be watching this thread!

 

Cheers

Rob

Edited March 19, 2009 by robcag
spelling

[robcag]

PS fb

 

Forgot to say that at least they've admitted the first DN was invalid!

 

Therefore if you can persuade the Judge that they are not permitted to have another go at getting it right by re-issuing the DN, it should be game over!

 

Cheers

Rob

[robcag]

Hi fairby,

 

Have your read this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

Well pointed out DocH !

 

Cheers

Rob

[robcag]

It might also be worth pointing out that you could understand the Claimant being permitted to issue a second DN had the first one been remedied by you (ie had you paid the sums required) which would in effect have cancelled the first DN. In those circumstances, yes, the Claimant could re-issue if you then defaulted again, but then emphasise that this was not the case, you did not remedy the default, and therefore you had no reason not to take MBNA at their word, ie that they terminated the account on the date they said they would.

 

Cheers

Rob

[robcag]

Hi fb

 

Sorry, I've got a brain like seive for remembering which case deals with what, so 'the case law bit' I referred to a few posts above, which ISTR you have already include in your documents so you and everyone else are aware of, is of course this;

22. 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.

Using this, you can argue "Where is the protection for the consumer if an inept creditor is to be allowed to continue re-issuing DNs until they manage to get it right?"

 

Basically, if the creditor is too stupid to get things right first time, then tough sh1t !!

 

Cheers

Rob

 

PS - Context copied directly from my defence provided by pt2537

Edited March 19, 2009 by robcag
added PS

[robcag]

Hi fb

 

You'll have to get more expert opinion on this than mine, but apart from what I said a few posts further up about the possibility of Restons using alleged evidence from Dianne Powell which could well be hearsay, what about the admissibility of the whole of Restons WS at post #287? After all it's being submitted very close to the hearing, and you could argue that you have not had sufficient time to consider all the implications, or even to take advice.

 

Just a thought.

 

Good luck for tomorrow

Rob

Edited March 19, 2009 by robcag
spelling

[robcag]

Hi fb

 

I wholeheartedly agree with everyone above who has said the main point of your argument revolves around the first DN and its resulting termination.

 

I know you can see the logic of that, but try and make sure you've got your head around all the arguments/explanations/points put forward by surfaceagentx20 and several others.

 

The more you can fire back to the Judge against Restons pathetic pleading that it is OK to issue a second CORRECTED DN in a reasoned way, the better!

 

You probably already know you have to call the Judge Sir/Madam. Try not to rise to the bait and thump the barrister , just keep your cool and be as polite as you can, and you also probably know not to discuss the case with him/her before you go in to the room. If approached just tell them you are willing to listen to them, but you will not discuss matters.

 

Cheers

Rob

Edited March 20, 2009 by robcag
punctuation

[robcag]

Well done fb

 

At least you stuck up for yourself and didn't just sit back and listen to the small talk between the Judge and the barrister

 

IMHO, as this was an unwarranted SJ hearing called by Restons, which they then changed their minds about because they realised it wasn't going to be the walkover they foolishly hoped it would, then to my mind you had an unnecessary trip to court and they should have had to pay your costs for today.

 

A shame really, at least my Judge realised that and awarded me costs for the day without even asking.

 

Cheers

Rob

[robcag]

Someone who does all the work you have done for no fee, however, when you win they take a cut.

 

Hi cB

 

I think fairby probably meant "what is a Financial Irregularities Claim?" BICBW

 

 

 

Cheers, keep an eye out on this thread cos i now want to stitch them bad !!! They just dont listen Surely a solicitor or barrister must know about DN's and yet they will sit in front of the judge with a load of tosh !!

 

They will lose a case one day using that argument, and then go back into court the next day and argue the same thing again.

 

All over the country there are probably hundreds, if not thousands, of people having to go through the stress of going to court arguing something which has been proven in their favour many times before, yet because no precedent is set, they have to go through it all again.

 

In many ways the system stinks.

 

Cheers

Rob

[robcag]

Perhaps the advice to caggers should be to issue a claim or get the claim transferred to Chester and let the judges see MBNA's tatics. That way once their argument has been exhausted in one claim they will think twice to use the same again with the same judge

 

The trouble is, I suspect (as I and one or two others have said elsewhere) its a case of the Restons tail wagging the MBNA/HFC/[insert creditor here] dog.

 

You would be forgiven for thinking that the banks would realise that Restons [et al] are going off on these jaunts and losing cases (and therefore costs against the banks), but the shame and reality is that they probably win many more cases than they lose this way because the majority of defendants do not know their rights and haven't found sites such as CAG. Sad but true.

 

The number of people who are aware is gradually increasing, but not fast enough, and while scumbags like Restons are able to railroad a majority of their claims through, I guess that is what they will continue to do.

 

IMHO, there should be some sort of directive or campaign aimed at educating judges to this behaviour and a requirement for legitimate documents to be produced at the claim stage as per CPR.

 

Rant over

 

Cheers

Rob

[robcag]

Re the orders from the court;

 

Absolutely brilliant result fairby

 

Looks like that's Restons/MBNA b0110xed then.

 

What with having to bring to court the original executed agreement, ALL statements since the account was opened, and proof of service of the DN.

 

That last one should stump them if the others don't!

 

Cheers

Rob

[robcag]

I wonder which DN they are going to try and prove service, cos they have admitted the first one was invalid, so therefore contract terminated so therefore cant default something that doesnt exist !!! I guess technically they wouldn't have to prove service of the first as you have the original and are using it as part of your defence. But can they actually prove service of either DN? I guess you received both by normal post, not signed for.

 

Surely someone there must go "Hang on we are stuffed here, lets forget about all this nosense" Doubtful, they're a bit too blinkered for that, and they're probably getting paid by MBNA even though they're wasting costs. Don't forget to claim your own costs after you've won this. They wont cos i am looking forwarded to Round 2. !!!

 

And you've been given the opportunity to submit a fully particularised defence, although I don't really understand the implications of the implied 'if' of Para 2 of the orders. That could yet turn out to be a mighty big IF and could be the crux of the matter!

 

If you do get to the stage of submitting an amended defence, you will be able to have a good think in what to submit and let them have it with all guns blazing! (not that I think you haven't already got them over a barrel).

 

Cheers

Rob

[robcag]

Rob, I dont understand the implied IF,

 

If they do bother to do what court says i will amend my defence, my staement to the court up to now is in reply to Summary Judgement as was made.

 

I will be going in with lods of ammo,

 

Cheers

 

Hi fb

 

Perhaps me just looking too closely at Para 2, but it says "In the event of compliance with Para 1 .... etc. ...and;" followed by Para 3.

 

So if Para 1 is not complied with doesn't this infer that the remainder of Para 2 (allocation to Fast Track) and then Para 3 do not take place?

 

If so, what does happen? There is no other action mentioned if the claimant fails to comply (such as an "Unless" statement). If they do fail to comply with Para 1, perhaps you will end up having to make an application for an "Unless" order and/or a strike out.

 

That's just my opinion and others with more knowledge might see things differently.

 

Cheers

Rob

[robcag]

PS

 

Then again, with a bit of luck, perhaps they'll just finally realise/admit to themselves that if they can't comply with Para 1 their case is hopeless, and just discontinue.

 

Cheers

Rob