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

[supasnooper]

Hi fairbyblue, welcome to CAG.

 

Follow the advice of andyorch and get the CCA request off ASAP.

 

Do you have a default notice issued by MBNA to hand ?

 

If so, what is the date of the notice and the date they give to make payment by ?

[supasnooper]

Hi fairby,

 

don't suppose you've kept the envelope that the default notice came in ?

 

If you have, can you either post a scan up or describe the postmark.

[supasnooper]

it looks like your default notice is ok(14 days after service).

 

 

Just for your info, a letter is deemed served 2 days after postage using Royal Mail 1st Class service and 4 days using Royal Mail 2nd Class service.

Edited November 30, 2008 by supasnooper
removed incorrect information

[supasnooper]

whats a CPR 31.14.

 

I would suggest that you read this thread started by surfaceagentx20

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

In the first post you will read the suggested CPR 31.14 letter that tiokim has proposed you send ..........and I would endorse that suggestion.

 

Get the CPR 31.14 letter typed up, amended to suit and posted.

 

Remember, print your name, do NOT sign the letter and post by Recorded Delivery.

[supasnooper]

Calender days for filing your defence.

[supasnooper]

Sit back, laugh and file the letter for later.

 

Restons like to send letters like this and I don't know why they do it as the content in is breach of the SRA guidelines.

Especially this letter from the Managing Director no less; normally it's one of their litigation titled employees who manage produce such entertainment.

 

Also beware, Restons employees do like to patrol these forums.

 

But sure as eggs are eggs, once Restons go for a CCJ they'll send you a copy of whatever CCA that MBNA have.

 

However, as they are now acting on behalf of MBNA, Restons are obliged to send you a copy of the CCA.

 

Restons however have done you a favour, as they confirm the account has been terminated which is a fantastic boost when dealing with ineffective default notices.

 

Your default notice would be deemed ineffective if you could prove that the default notice was sent by Second Class post .......or to twist it round - Can MBNA prove the date of service when they post mail by UKMail service ?

That's why I asked if you had kept the envelope as MBNA use UKMail which is deemed a Second Class mail service.

 

Hope this helps.

[supasnooper]

and is it a UKMail envelope with an S in the postage label in the top right hand corner ?

[supasnooper]

Hi fairby,

 

I've just seen your scan.............Damn; unfortunately it says 1st Class Royal Mail and would not deem your default notice as ineffective.

 

For what it's worth, payment is due 14 calendar days after being deemed delivered; which is two days from the date of letter for 1st Class and four days from the date of letter for 2nd Class. There are some exceptions to this but they wouldn't help for your situation.

[supasnooper]

Wait and see what comes of your CPR request - it'll arrive in dribs and drabs from Restons.

 

Meanwhile, if you can afford the £10 cost for an Subject Access Request to MBNA, this may flush out the CCA that you need sight of and also to see if any charges have been added to your account that may also make the default notice ineffective.

[supasnooper]

Just sit tight and see what happens.

 

If I have calculated correctly, your defence needs to be submitted by 30th December ( Please DO check the date of your POC and add 33 days ).

 

Still some time to go yet, however - Restons are pretty ignorant to timescales and written responses.

 

If they don't respond close to the time your defence needs to be submitted then you may wish to plead an "embarrassed defence" ........... but let's if Restons are going to play ball.

 

MBNA have 10 + 2 working days to supply a CCA and they have 40 calendar days to supply the documents requested by your SAR.

 

Hope this helps.

[supasnooper]

Sit back and enjoy Christmas.....there's not much you can do until you either get the docs requested or when your defence needs to be filed.

 

MBNA should have answered your CCA request by now but mail is being delayed this time of year (date dependant on when you posted the request - remember it's 12 + 2 days for this ).

 

MBNA are obviously very busy at the moment and no doubt will supply you with just statements in response to your SAR if they follow their usual form.

 

 

An embarrassed defence is used when you have no documents that should have been supplied by the claimant that you can inspect. (i.e the CCA should have been attached to CCJ summons )

 

I'm sure andyorch will have such a defence he may wish to post up.

[supasnooper]

Have a look at this thread; post no #89 where there is a short embarrased defence set out by andyorch....you may need to amend it to suit your case.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/167044-ccj-court-claim-form-5.html

 

Hope this helps.

[supasnooper]

Hi Fairby,

 

I would have a read of the various threads featuring Restons to get an idea of what you will be dealing with.

 

Have a look at my thread and then check out the links in it to car2503's thread and robcags thread as well.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/160395-restons-court-action.html

 

There are plenty of other threads as well - try to read them if you can as you will then understand their modus operandi.

Do NOT let them unsettle you as they will make a few threats along the way.

[supasnooper]

Hi fairby,

 

The agreement that they've sent would indicate that this account was applied for online on 30/11/05.

 

Do you remember doing this ?

[supasnooper]

How was the application made for this card ?

[supasnooper]

hiya,

 

so if this is what they have sent as an online application form , the tick box is the signature, but im not upto date yet at the legalities of the online application with the tick,,

 

click on the trinagle and see if one of the experienced cag members will come to your aid to explian it better than me to understand what has been sent exactly and what does this mean for you

 

i too have got a bit of the same with an online application will check in later for the advice you have been given

 

laters angel x

 

 

If the application was made online then a tick will suffice as a signature.

 

the legislation for this - The Consumer Credit Act 1974 (Electronic Communications) Order 2004

[supasnooper]

I'm not really that au fait with online CCA's and hope that someone with more knowledge on them can post up what is supposed to be sent.

 

Fairby,

 

Are there any other papers with your name & address that can be linked to the credit agreement page ?

 

Going back to your DN, would there be any penalty charges included in the figure they have stated to make it invalid ?

 

Another tack you may wish to take is to pursue MBNA for Non-compliance of your SAR request (take them to court and claim for damages) and also report them to ICO (which will cost them £500.00).

[supasnooper]

You can do both at the same time.

 

Reporting them to ICO can be done online.

 

Complaints - Privacy & electronic communication - ICO and follow the Data Protection link.

 

I believe the courts award damages of around £250 for non-compliance (and not sending a CCA as part of a SAR is a big boo-boo). The link may state that you need to send a LBA, I wouldn't bother with it.

MBNA know the law and should be made to account for their ignorance.

 

Data Protection Act: Non-Compliance - Consumer Wiki

[supasnooper]

I can't add anything further until the docs are scanned and posted up.

 

What I'm trying to get at about the docs is -

 

1/ Are they linked in any way i.e. page numbers ?

 

2/ Are they the originals ?

 

Do you think that Restons or MBNA trying to pull a "cut & paste" stunt to try to get you to back down ?

 

Remember what CPR16.7(3) says - Bring the original agreement to court.

 

A copy will not do as it can be taken apart by questions, questions and more questions.

 

Have a read of this -

http://www.consumeractiongroup.co.uk/forum/show-post/post-1909703.html.

 

there is also an x20 post that you should read but I'll dig that out later.

[supasnooper]

As referred to earlier - x20's post

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1776334.html

 

 

and finally why not question MBNA's electronic document management system -

 

Document Management, Document Imaging, Document Scanning | Archival

[supasnooper]

Thats the date the Act was passed, but the date it was enacted was later, i dont know the date, but someone on here does, i saw it the other night, will try to find it....its important because after that date an online tick will suffice...before that date they had to send the agreement for you to sign.

 

 

I think it came into force on 31st Dec 2004 but will check.

[supasnooper]

The problem is that MBNA want their money fast and have ordered Restons to get it.

 

Restons go after a CCJ, they get that, then pursue for a charging order to secure the debt immediately................that's the way they work !

 

You can try and negotiate with them but i doubt you'll get anywhere.

 

you must fight this, cos if you don't, they'll do what I've stated in paragraph 2 of this post.

 

bazaar has posted some excellent advice and read some of the threads I've posted.

 

It's showtime for the game of who blinks first, is it you or is it Restons ?

 

I would back you......what they have sent is photo-copied drivel that could be destroyed in two minutes.

 

When they apply for Summary Judgment they will clearly state that it will be a copy that they rely on.

 

You could crucify them with CPR 16.7(3) then decimate them with Civil Evidence Act 1995.

 

Start to believe you have the power to take them on, they have done what they have intended which is to frighten you into submission....Now dust yourself down, deep breath and fight back !

Edited February 11, 2009 by supasnooper
bl

[supasnooper]

No it doesn't get thrown out.

 

Restons go this route as it's cheaper at £50 cost than paying £100 for a Pre-trial checklist (listing questionnaire) fee and they get to see if you can defend against Summary Judgment before going to a full trial.

 

If you can defend against an SJ they may well discontinue as you've shown them you have the capability

[supasnooper]

I can imagine you are worried and we are trying to give you the ammunition to fight back.

 

Unfortunately, we can't be in court for you as you'll have to do the hardest part of the lot- explain to a judge what you've learnt from CAG but you are doing great so far !

 

Now evaluate what Restons have sent you - they are clearly microfiche scans which look like they would not match up if printed off (I'll check that tomorrow), a default notice that may contain penalty charges but you'll have to confirm that, finally an invite to withdraw your defence (why? to make it easy for them).

 

You have four choices here -

 

1/ You can withdraw your defence and let Restons gain a CCJ by default.

 

2/ You could apply for Sumamry Judgment against Restons but would cost you £50 and would probably end up with both SJ's getting thrown out....but do some research on this option and bear it in mind.

 

3/ You can sit tight and wait for Restons to go for Summary Judgment (which they will do being creatures of habit) and then defend it.

 

4/ You could try and negotiate with them but I doubt they'd listen to you - they would take it as a sign of weakness and pursue the CCJ route.

 

I'll leave this with you for the moment and let you try to take in what's gone on today as I think that it's come as a big shock to you. Hopefully, try to get a good nights sleep and revisit this tomorrow.

 

Don't forget, We are all behind you here and want you to get the result you want.

[supasnooper]

This must be the 5th short or holding defence that has resulted in the OC or DCA applying to court for summary judgement that I have seen in this forum.

 

 

This is the method that Restons use.

 

Even submitting the eloquent and effective long defence as I did (Restons even wrote to tell me as much ) - same result, off they went for summary judgment.

 

If they get a CCJ they then move for a Charging Order.