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

[diddydicky]

i am not legally trained but i think you will find that no creditor can insert a clause or change an existing agreement in such a way as to defeat the basic requirements of the consumer credit act

 

therefore if he inserts a clause that allows him to demand earlier payment without abiding by the requirements to first issue an effective DN he would get short shrift from the courts

 

otherwise the creditor could simply insert this clause into the agreemen

 

clause umptynone(1)

 

the debtor herewith agrees that none of the foregoing terms and conditions are of any effect and the requirements of the consumer credit act do not apply to this agreement which is a regulated agreement but now it isnt!

 

#

[underdog13]

Don't give 'em ideas, DD;)

 

I think the crux of it though, is that unless they terminate, they can just issue another DN and keep doing so until they get it right:rolleyes:

[someone_else]

It will also depend on the claimants actions and the wording of the Default Notice. It also depends on the Judge you get and what the Claimant are like.

 

The easiest arguement is where the claimant have put in writing that the account is terminated/ended.

 

The Default Notice we got from MBNA said the account would be closed and terminated, court action may be taken, further statements will not be issued, and if it is terminated the full balance will be due.

 

They then issued a letter asking for full payment.

 

You can argue the second they take the further action as per the DN they lose the ability to reissue a DN, as the issuing of the DN allows them to take the further action.

 

If they don't take the further action, then they can re-issue a DN. (Which is what Ford did in our Link case - a DN was issued in Feb and was remedied, a new one was issued in July and the car was taken in August, terminating the agreement leaving them unable to reissue a DN).

 

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The best thing is to ensure is that you have an answer to any points the Claimant or DJ may raise.

[diddydicky]

It will also depend on the claimants actions and the wording of the Default Notice. It also depends on the Judge you get and what the Claimant are like.

 

The easiest arguement is where the claimant have put in writing that the account is terminated/ended.

 

The Default Notice we got from MBNA said the account would be closed and terminated, court action may be taken, further statements will not be issued, and if it is terminated the full balance will be due.

 

They then issued a letter asking for full payment.

 

You can argue the second they take the further action as per the DN they lose the ability to reissue a DN, as the issuing of the DN allows them to take the further action.

 

If they don't take the further action, then they can re-issue a DN. (Which is what Ford did in our Link case - a DN was issued in Feb and was remedied, a new one was issued in July and the car was taken in August, terminating the agreement leaving them unable to reissue a DN).

 

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The best thing is to ensure is that you have an answer to any points the Claimant or DJ may raise.

 

one thing to watch for on subsequent DN;s is to see if the default arrears remains the same- on a live account they cant be the same!!

[blueboy987]

In case anyone finds it useful, I've attached a copy of the MBNA comms log abbreviations key which they supplied with a recent SAR request. Though to be honest its pretty much useless as the only items listed are pretty obvious anyway and it simply ignores most abbreviations they use.

MBNA Comms Log Key.pdf

[fairbyblue]

Ok defence nearly ready all i need is the killer case law about the temrination after the 1st DN that they cant then issue a 2DN. Is it Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

I want it in simple terms cos I am confusing myself here let alone the judge.

Thanks

[citizenB]

Is it this one you want, FB

 

http://www.consumerforums.com/resources/templates-library/56-cases/162-woodchester-lease-v-swain-a-co-1998-default-notices-

 

Para 123; Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

[citizenB]

i am not legally trained but i think you will find that no creditor can insert a clause or change an existing agreement in such a way as to defeat the basic requirements of the consumer credit act

 

therefore if he inserts a clause that allows him to demand earlier payment without abiding by the requirements to first issue an effective DN he would get short shrift from the courts

 

otherwise the creditor could simply insert this clause into the agreemen

 

clause umptynone(1)

 

the debtor herewith agrees that none of the foregoing terms and conditions are of any effect and the requirements of the consumer credit act do not apply to this agreement which is a regulated agreement but now it isnt!

 

#

 

 

I think this was covered in discussion in the following post yesterday DD . It seems as though MBNA have tried to infiltrate a clause that will allow them to change the course of things.. they hoped:D

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2229315.html

 

HTH

[diddydicky]

I think this was covered in discussion in the following post yesterday DD . It seems as though MBNA have tried to infiltrate a clause that will allow them to change the course of things.. they hoped:D

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2229315.html

 

HTH

 

excellent, thanks

[diddydicky]

excellent, thanks

 

although having read the thread i am still of the (unqualified but i believe fairly safe opinion that no creditor can introduce variations into a regulated agreement , whether with or without the express consent of the creditor, that defeats the regulations of the act itself

 

a condition giving the creditor the right to terminate and/or demand the full balance would be a clear and unacceptable attempt (IMO) to do just that and i beleive would be thrown out in court

[WelshMam2009]

yes but it doesnt say WHEN he must take it(only the MINIMUM time in which he can take it)

 

he could choose to take the action after 14 days 14 weeks 14 months or decide to take some other action

so long as he issues a new DN saying what the new action intended is

 

not defending them- just pointing out that it is not all one way in our favour

 

No problem with you comments DD...we may eventually find the answer by thrashing this out!!

 

Some of the DN's are less ambigious than MBNA's though and actually state that "on the date shown the following action will be taken." Just been looking at an HFC DN which states that; "HFC Bank will terminate the agreement on the date shown."

 

Such a shame MBNA weren't as specific.

[diddydicky]

No problem with you comments DD...we may eventually find the answer by thrashing this out!!

 

Some of the DN's are less ambigious than MBNA's though and actually state that "on the date shown the following action will be taken." Just been looking at an HFC DN which states that; "HFC Bank will terminate the agreement on the date shown."

 

Such a shame MBNA weren't as specific.

 

indeed- just a matter of waiting for that ONE letter!!

[fairbyblue]

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’

Any ideas for my amended defence as its going in tomorrow

Heres the brief version

1. 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.

[fairbyblue]

Well the defence is done, Restons have until 25/6/09 to respond. Told them in covering letter no emails and that I will be calling a 'comprehensive list of witnesses from MBNA who have provided statemnts and the appropriate operators who input the comments on Comms Log.

 

No doubt they will email with 10 minutes before deadline with theisr response.

[AA99]

subbing, Good Luck

[pompeyfaith]

Yes ill second that AA99 Good Luck Fairbyblue may your outcome be better than mine.

 

Regards

 

PF

[fairbyblue]

too be honest Im quite looking forward to it. Whats the worst that could happen?

[heliosfa]

you could always be cruel and set up an auto responder to send an "undeliverable" report back to any restons E-Mail

 

i bet that that would get them agitated!

 

H

[lexis200]

you could always be cruel and set up an auto responder to send an "undeliverable" report back to any restons E-Mail

 

i bet that that would get them agitated!

 

H

 

I like the idea of that, it appeals to the naughty streak in me:D

[diddydicky]

too be honest Im quite looking forward to it. Whats the worst that could happen?

 

you could get invited into the cabinet and given a knighthood- no sorry lets not look on the black side!!

[bazaar]

Good idea on the e-mail, set up a spoof account on yahoo, and try to sell them penis enlargement or something:D

[heliosfa]

Good idea on the e-mail, set up a spoof account on yahoo, and try to sell them penis enlargement or something:D

 

Skip the setting up the E-Mail account, just sell their E-Mail address

 

H

[blueboy987]

Screwing around with their email addresses is very unlikely to cause them any harm and it just lowers you to their level. So why even discuss it?

[heliosfa]

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

 

Charge Off Code A - block code, used when the account is closed.

 

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

[heliosfa]

Screwing around with their email addresses is very unlikely to cause them any harm and it just lowers you to their level. So why even discuss it?

 

it's called stress releif, help lighten the mood a little to keep us all sane

 

H