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

[fairbyblue]

Cheers. Should they only rely on the 1st DN and if so is there any case law on that. The 2nd one is not a copy of 1st or can they jsut change it.

I am twitching as I dont like courts !!!

[fairbyblue]

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

 

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

[atwozee]

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.

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.

[fairbyblue]

Thanks Robcag and CitizenB

[citizenB]

Cheers. Should they only rely on the 1st DN and if so is there any case law on that. The 2nd one is not a copy of 1st or can they jsut change it.

I am twitching as I dont like courts !!!

 

 

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 ?

[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

[fairbyblue]

Cheers. Theres alot to go through. See post 210 they confirm it is terminated but that is after the 2nd(dodgy) DN and that Sec 78 doesnt apply

[fairbyblue]

Right here we go with thanks to Robcag as this is the 1st draft of stement which can you pull apart and add to with arguments. I am so grateful at the help i have recived upto now.

 

1st Witness Statement of XXXXX

 

 

10th March 2009

 

 

In the Xxxxxxxxx County Court

Claim Number: XXXXXXXX

 

 

 

Between:

 

MBNA Europe Bank Limited (Claimant)

 

 

 

 

-And-

 

 

 

 

XXXXXX (Defendant)

 

 

 

_________________________

 

 

 

1st WITNESS STATEMENT OF

 

 

 

XXXXXX

 

 

_________________________

 

 

 

1. I, XXXXX of XX Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, XXX XXX, being the Defendant, am a litigant in person in this case.

2. I make this Witness Statement in support of my defence against the Claimants claim against me.

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

4. In this statement I will refer to facts relating to the claimant regarding their failure to follow recognised procedures, practices and protocols during their prosecution of this case, their failure to respond to my lawful requests, and their failure to comply in a timely fashion with the Orders issued by the Court.

5. It is accepted that I had use of a credit card supplied by the claimant at the material times, but late in 2007, due to changes in my financial circumstances, I was unable to make the minimum payments requested on the monthly statements received by me from MBNA Europe Bank Limited. This led to MBNA making a series of telephone calls to me enquiring as to why the payments had not been made.

6. During these telephone calls I had explained to MBNA Europe Bank Limited about the change in my financial circumstances and that I was unable to make the payments which they were requesting. I tried to negotiate with them to get them to accept reduced payments and asked them to accept token monthly payment amounts of £30 and later reduced to £12, which was agreed. In case there is any doubt that there was a reduced payment agreement in place there are notes to that effect on credit cards statements dated xxxxx and refered to in MBNAX

7. The amount which I could realistically afford to pay per month was calculated by subtracting my basic living expenditure from my income and dividing the remainder between all my creditors on a pro-rata basis, and I then started to make the payments monthly. I also submitted an Income and Expenditure form.

8. On 20th June 2008 I received a Default Notice dated 18th June 2008 from MBNA Europe Bank Limited served under s87 (1) Consumer Credit Act 1974. This was signed by Mathew McGrath, Head of Customer Service. However, the Claimant failed to set out the Default Notice 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 two deficiencies. Specifically, it failed to be accurate due to;

 

 

8.1. It failed to give the required period to remedy the default, i.e. it was issued on 18th June 2008, therefore the date of service was 20th June 2008, and the date given by which to remedy the breach was clearly given as 1st July 2008. This amounts to eleven days and not the required fourteen days as stipulated by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

8.2. In the default notice dated 18th June 2008 line 1 refers to “Clause 3 of that agreement provides that you must repay immediately the amount of arrears on the account” In the Terms and Conditions relating to this account provided by Restons on 10th February 2009 see (and note that Restons relying on copies) makes no mention of repayment of full amount and this clause deals with late charges and fees applied. The fees were £25

8.3. Any thing else you can add

 

9. What case law can I show here Case law supporting the argument for the requirement of a Default Notice to be accurate otherwise it is deemed to be invalid.

10. Where can I put this little gem In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

11. I continued making regular reduced monthly payments to a MBNA Europe Bank Limited as previously agreed, I received a letter from the Claimants legal representatives, Restons Solicitors. This letter stated that Restons were instructed to review the amount that I had been paying, and included another Income and Expenditure form with a request for me to complete and return it. This I did and is refered to by Reston as MBNA 7

12. In the income and expenditure I wrote that I was paying MBNA on account number (which is different) £12 per month. MBNA has somehow completely changed my account number yet the agreed £12 is still being applied to the original account number which is the default notice dated 18th June 2008 is based on. It shows the remedy of £1601.39 as 1st July 2008.

13. On 29th October 2008 I received a further Default Notice with the original account number on, dated 27th October 2008.

14. I could not identify the Default Notice as I was paying under the ‘new’ account number and this still had the original account number on.

15. This document is not a true and accurate copy of the first although the amount to remedy is the same £1601.39. The date of remedy was now 13th November 2008. There have been payments to this account and therefore should have reduced. The credit card statements that Restons rely on refered to as MBNA 3 supports this. I want to work it to them here as its a forgery and i want the judge to take note

16. The balance has been removed from the default notice dated 27th October 2008 and which Restons rely on

17. Restons now refer to in line one of the Default notice “Clause 8’ of that agreement provides that you must repay immediately the amount of arrears on the account” This is a totally different clause 3 from the original default notice dated 18th June 2008

18. It is also signed by a Jennifer Mathews, Head of Risk and Recovery.

19. There can only be one set of terms and conditions that I agreed to.

20. Without any prior warning, on 27th November 2008 the Claimant, via its legal representatives Restons Solicitors, issued a County Court claim against me. This was despite the facts that I had not missed any of the agreed monthly payments, and that the account had been unlawfully terminated due to the Default Notice issued on 18th June 2008 not complying with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as stated above.

21. Furthermore, as no Letter Before Action was served or received, the Claimant acted in contravention of the Civil Procedure Rules, Part 1 the Overriding Objective, and Practice Direction the Pre Action Protocols paragraph 4.3

22. I tried to obtain legal advice on how I should proceed with my response to the Claimants claim, but as I had no available funds to pay for a solicitor, the only other option of which I was aware was the Citizens Advice Bureau. However due to my local Citizens Advice Bureau being under great pressure at the time due to the number of people they are trying to help, and the fact that appointments are only available on two days each week, I could not get an early appointment.

23. I acknowledged the Claim online via the MCOL website before the 14 day deadline and stated that I wished to defend the claim. I was then in a quandary as to how to defend the claim.

24. At the point where my defence was required I was not in possession of documents from the Claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The Claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules.

25. Because the Claimants Particulars of Claim were vague and insufficiently particularised and therefore did not provide me with the information which I needed to prepare a fully particularised defence, I was only able to enter a very vague defence, but stating that I had requested documents from the Claimant, and reserving the right amend my defence at a later date if the Claimant produced the aforementioned documents.

26. Also 27th November 2008 I sent to the Claimant by Royal Mail Recorded Delivery, a formal request under section 78 of the Consumer Credit Act 1974 for a copy of the alleged agreement, together with a cheque for £1.00 which is the amount required to cover the statutory fee. This is my legal right under s78 of the Consumer Credit Act 1974, and the creditor is legally obliged to provide this upon request and payment of the £1.00 fee.

27. On 1st December 2008 I also sent to the Claimant by Royal Mail Recorded Delivery a formal request under the Civil procedure Rules for further information and copies of documents which they intended to rely on in Court.

28. The Consumer Credit Act 1974 s78(1) and its associated Regulations state that, inter alia;

78 Duty to give information to debtor under running-account credit agreement

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

29. The Consumer Credit Act 1974 s78(6) then specifies that the consequences of failure to comply with such a request are that the creditor is not entitled to;

78

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

30. On 3rd December 2008 I received a letter from Mr N Coe, Managing Director of Restons thanking me for my letter dated 27th November 2008 and returning my £1 with the following quote “Section 78 states “the creditor under a regulated agreement… Restons is not the creditor but in any account your account has been terminated as you have failed to comply with default notice and therefore our understanding is that Section 78 has no application in this matter.

31. I have proof of delivery from Royal Mail that the letter mentioned in Paragraph 27 above was received and signed for by Restons Solicitors

32. In February 2009 I received from the Court the Allocation Questionnaire which had to be completed and returned to the Court by 9th March 2009.

33. On 5th March 2009 I still had not received any of the requested documentation from either the Claimant or Restons Solicitors, so I completed my Allocation Questionnaire to the best of my ability and delivered it by recorded delivery to the Court office.

34. In February 2009 I received a letter from Restons Solicitors which was accompanied by certain copy documents. These copy documents consisted of some of the items which I had requested in my request for further information under the Civil Procedure Rules, but by no means fulfilled my request.

35. However Restons Solicitors stated in their covering letter that the enclosed documents were those upon which they intended to rely in court, so I will therefore object if any other documents are produced which they have not already disclosed to me, and which they attempt to rely on in court.

36. The copy documents enclosed with the letter mentioned in Paragraph 35 above consisted of;

36.1. A document referred to by Restons Solicitors as “Credit Agreement dated 30th November 2005”

36.2. A document referred to as “Default notice dated 27th October 2008””

36.3. Statements of account,

36.4. Terms and conditions. These terms are not the ones originally sent to me as in Para 8.2, as APR is different ,clauses are different, no identifying marks to say that these terms are for my account, lates fees are different now £12 as opposed to £25

37. Upon inspecting the envelope sent to me by Restons Solicitors containing the documents referred to above in Paragraphs 34 to 36 inclusive it became clear that the envelope contained several copy documents which were from other cases which Restons were presumably dealing with, the data was certainly not relevant to me or this case, this is a clear contravention of the Data Protection Act 1998.

38. The reasons for this have been set out in my defence, and case law to support the argument against the possibility of the “Application Form” in this case constituting a legally enforceable agreement have been quoted in the defence.

39. I deny that a properly executed agreement, or indeed any agreement as claimed, ever existed.

40. I courteously replied to Restons pointing out their continued failure to comply with deadlines set by the Court, and provided them with copy documents they had requested.

41. I have yet to view the original credit agreement or any other original documents that the claimant seeks to rely upon, I am aware that the civil procedure rules makes provision for the original documentation to be made available under practice direction 32. It is clear to me that since it is disputed that the documents which the Claimant seeks to rely upon as the alleged “Credit Agreement” the only way to establish truly if they are indeed part of the same document is to produce the original document before the court. In addition, I am aware that there are many regulations and statutory acts which place a duty upon the Claimant to retain original documentation inter alia- the Money Laundering Regulations, the Companies Act 1985 sections 221 and 222 etc. so it stands to reason that they should be able to bring before the court a copy of the original document

 

42. Statement of Truth:

I, xxxxxx the Defendant, believe the facts stated within this Witness Statement to be true.

 

Signed:

 

 

 

 

 

Dated:

Edited March 10, 2009 by fairbyblue

[fairbyblue]

Oh and dont know how to do a disclosure list so any offers also the last couple of pargraphs need to ammended so I can have it struck out.

i also need to crowbar this

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’

 

Edited March 10, 2009 by fairbyblue

[bazaar]

Point 17, cites clause 8 first, then clause 3. Is this correct?

[tiokim]

9. What case law can I show here Case law supporting the argument for the requirement of a Default Notice to be accurate otherwise it is deemed to be invalid.

The case supporting the argument could be:

 

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 also is an unlawful rescission of contract.

 

[fairbyblue]

Point 17, cites clause 8 first, then clause 3. Is this correct?

i think so but will have to check the wording -

17. Restons now refer to in line one of the Default notice “Clause 8’ of that agreement provides that you must repay immediately the amount of arrears on the account” This is a totally different clause 3 from the original default notice dated 18th June 2008

Is this better?

17 Restons now refer to Clause 8 in the Default notice dated 27th October 2008 whereas it was Clause 3 on the original Default notice from 18th June 2008. This is both misleading and shows that they are using different terms and conditions.

[steven4064]

See paragraph 3.1 PRACTICE DIRECTION – DISCLOSURE AND INSPECTION

[citizenB]

Point 17, cites clause 8 first, then clause 3. Is this correct?

 

i think so but will have to check the wording -

17. Restons now refer to in line one of the Default notice “Clause 8’ of that agreement provides that you must repay immediately the amount of arrears on the account” This is a totally different clause 3 from the original default notice dated 18th June 2008

 

Is this better?

 

17 Restons now refer to Clause 8 in the Default notice dated 27th October 2008 whereas it was Clause 3 on the original Default notice from 18th June 2008. This is both misleading and shows that they are using different terms and conditions.

 

In addition, they can only rely on the first one prior to termination because after the termination there wasnt an account to default

[fairbyblue]

Do i send the statment to the court as well as Restons?

 

I tohught of throwing this in as well about them asking me to withdraw my defence and make offer, despite me paying an agreed amount with MBNA and making another offer

Edited March 10, 2009 by fairbyblue

[fairbyblue]

[pompeyfaith]

hiya blue yes send all statements to court and copy to restons as well i made this mistake with 1 of my WS

[fairbyblue]

Any comments as its foing in tomorrow, There are a few little exhibit numbers to sort out.

1st Witness Statement of XXXXX

10th March 2009

In the Xxxxxxxxx County Court

Claim Number: XXXXXXXX

Between:

MBNA Europe Bank Limited (Claimant)

-And-

XXXXXX (Defendant)

_________________________

1st WITNESS STATEMENT OF

XXXXXX

_________________________

1. I, XXXXX of XX Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, XXX XXX, being the Defendant, am a litigant in person in this case.

2. I make this Witness Statement in support of my defence against the Claimants claim against me.

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

4. In this statement I will refer to facts relating to the claimant regarding their failure to follow recognised procedures, practices and protocols during their prosecution of this case and their failure to respond to my lawful requests.

5. It is accepted that I had use of a credit card supplied by the claimant at the material times, but late in 2007, due to changes in my financial circumstances, I was unable to make the minimum payments requested on the monthly statements received by me from MBNA Europe Bank Limited. This led to MBNA making a series of telephone calls to me enquiring as to why the payments had not been made.

6. During these telephone calls I had explained to MBNA Europe Bank Limited about the change in my financial circumstances and that I was unable to make the payments which they were requesting. I tried to negotiate with them to get them to accept reduced payments and asked them to accept token monthly payment amounts of £30 and later reduced to £12, which was agreed. In case there is any doubt that there was a reduced payment agreement in place there are notes to that effect on credit cards statements refered to in MBNA4

7. The amount which I could realistically afford to pay per month was calculated by subtracting my basic living expenditure from my income and dividing the remainder between all my creditors on a pro-rata basis, and I then started to make the payments monthly. I also submitted an Income and Expenditure form.

8. On 20th June 2008 I received a Default Notice dated 18th June 2008 (Exhibit NRF1 and copy attached) from MBNA Europe Bank Limited served under s87 (1) Consumer Credit Act 1974.

9. This was signed by Mathew McGrath, Head of Customer Service.

10. However, the Claimant failed to set out the Default Notice 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 two deficiencies. Specifically, it failed to be accurate due to;

10.1. It failed to give the required period to remedy the default, i.e. it was issued on 18th June 2008, therefore the date of service was 20th June 2008, and the date given by which to remedy the breach was clearly given as 1st July 2008. This amounts to eleven days and not the required fourteen days as stipulated by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

10.2. In the default notice dated 18th June 2008 (NRF1) line 1 refers to “Clause 3 of that agreement provides that you must repay immediately the amount of arrears on the account” In the Terms and Conditions relating to this account provided by Restons on 10th February 2009 see (and note that Restons relying on copies) makes no mention of repayment of full amount and this clause deals with late charges and fees applied. The fees were £25

11. 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 also is an unlawful rescission of contract.

12. In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

13. I continued making regular reduced monthly payments to a MBNA Europe Bank Limited as previously agreed. I received a letter from the Claimants legal representatives, Restons Solicitors. This letter stated that Restons were instructed to review the amount that I had been paying, and included another Income and Expenditure form with a request for me to complete and return it. This I did and is refered to by Restons as MBNA 7

14. In the income and expenditure I wrote that I was paying MBNA on account number (which is different and altered by MBNA) £12 per month. MBNA has somehow completely changed my account number yet the agreed £12 is still being applied to the original account number which is the default notice dated 18th June 2008 is based on. It shows the remedy of £1601.39 as 1st July 2008.

15. On 29th October 2008 I received a further Default Notice with the original account number on, dated 27th October 2008.

16. I could not identify the Default Notice as I was paying under the ‘new’ account number and this still had the original account number on.

17. This document is not a true and accurate copy of the first

18. The amount to remedy is the same £1601.39.

19. The date of remedy was now 13th November 2008.

20. There have been payments to this account and therefore should have reduced. The credit card statements that Restons rely on refered to as MBNA 3 supports this.

21. The balance has been removed from the default notice dated 27th October 2008 and which Restons rely on

22. It is also signed by a Jennifer Mathews, Head of Risk and Recovery.

23. Restons now refer to Clause 8 in the Default notice dated 27th October 2008 whereas it was Clause 3 on the original Default notice from 18th June 2008. This is both misleading and shows that they are using different terms and conditions.

24. This shows that this document has been altered from the original Default Notice (NRF1)

25. There can only be one set of terms and conditions that I agreed to.

26. Restons have provided 2 separate Terms and Conditions which vary greatly

27. Restons throughout this process make no mention of the Default notice dated 18th June 2008 (NRF1)

28. Without any prior warning, on 27th November 2008 the Claimant, via its legal representatives Restons Solicitors, issued a County Court claim against me. This was despite the facts that I had not missed any of the agreed monthly payments, and that the account had been unlawfully terminated due to the Default Notice issued on 18th June 2008 not complying with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as stated above.

29. The account had been terminated.

30. 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’

31. Furthermore, as no Letter Before Action was served or received, the Claimant acted in contravention of the Civil Procedure Rules, Part 1 the Overriding Objective, and Practice Direction the Pre Action Protocols paragraph 4.3

32. I tried to obtain legal advice on how I should proceed with my response to the Claimants claim, but as I had no available funds to pay for a solicitor, the only other option of which I was aware was the Citizens Advice Bureau. However due to my local Citizens Advice Bureau being under great pressure at the time due to the number of people they are trying to help, and the fact that appointments are only available on two days each week, I could not get an early appointment.

33. I acknowledged the Claim online via the MCOL website before the 14 day deadline and stated that I wished to defend the claim. I was then in a quandary as to how to defend the claim.

34. At the point where my defence was required I was not in possession of documents from the Claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The Claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules.

35. Because the Claimants Particulars of Claim were vague and insufficiently particularised and therefore did not provide me with the information which I needed to prepare a fully particularised defence, I was only able to enter a very vague defence, but stating that I had requested documents from the Claimant, and reserving the right amend my defence at a later date if the Claimant produced the aforementioned documents.

36. Also 27th November 2008 I sent to the Claimant by Royal Mail Recorded Delivery, a formal request under section 78 of the Consumer Credit Act 1974 for a copy of the alleged agreement, together with a cheque for £1.00 which is the amount required to cover the statutory fee. This is my legal right under s78 of the Consumer Credit Act 1974, and the creditor is legally obliged to provide this upon request and payment of the £1.00 fee.

37. On 1st December 2008 I also sent to the Claimant by Royal Mail Recorded Delivery a formal request under the Civil Procedure Rules for further information and copies of documents which they intended to rely on in Court.

38. The Consumer Credit Act 1974 s78(1) and its associated Regulations state that, inter alia;

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

39. The Consumer Credit Act 1974 s78(6) then specifies that the consequences of failure to comply with such a request are that the creditor is not entitled to;

78

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

40. On 3rd December 2008 I received a letter from Mr N Coe, Managing Director of Restons thanking me for my letter dated 27th November 2008 and returning my £1 with the following quote “Section 78 states “the creditor under a regulated agreement… Restons is not the creditor but in any account your account has been terminated as you have failed to comply with default notice and therefore our understanding is that Section 78 has no application in this matter”

41. On 3rd December 2008 I sent a Subject Access Request under the Data Protection Act 1998 to both Restons and MBNA Europe Bank Limited Exhibit NRFX and is attached

42. On 5th January 2009 I received letter from MBNA in relation to the subject access request. (Exhibit NRFXand is attached)

43. MBNA provided a statement of account under Section 7 of DPA 1998

44. This is not was asked for and is incomplete

45. MBNA have failed to respond to my statutory right

46. MBNA returned my £10 fee.

47. I am still awaiting the correct information from Restons

48. On 10th February 2009 I received a letter from Restons Solicitors which was accompanied by certain copy documents. These copy documents consisted of some of the items which I had requested in my request for further information under the Civil Procedure Rules, but by no means fulfilled my request.

49. In February 2009 I received from the Court the Allocation Questionnaire which had to be completed and returned to the Court by 9th March 2009.

50. However Restons Solicitors stated in their covering letter that the enclosed documents were those upon which they intended to rely in court, so I will therefore object if any other documents are produced which they have not already disclosed to me, and which they attempt to rely on in court.

51. The copy documents enclosed with the letter mentioned in Paragraph 47 above consisted of;

51.1. A document referred to by Restons Solicitors as “Credit Agreement dated 30th November 2005”

51.2. A document referred to as “Default notice dated 27th October 2008””

51.3. Statements of account,

51.4. Terms and conditions. These terms are not the ones originally sent to me as in Para 8.2, as APR is different ,clauses are different, no identifying marks to say that these terms are for my account, late fees are different now £12 as opposed to £25

51.5. Restons on behalf of the Claimant also asked in the letter if I would withdraw my defence !!

52. On 5th March 2009 I still had not received any of the requested documentation from either the Claimant or Restons Solicitors, so I completed my Allocation Questionnaire to the best of my ability and delivered it by recorded delivery to the Court office.

53. I courteously replied to Restons pointing out their continued failure to comply with deadlines set by the Court, and my statutory rights under CPR asnd DPA and provided them with copy documents they had requested.

54. I have yet to view the original credit agreement or any other original documents that the claimant seeks to rely upon, I am aware that the civil procedure rules makes provision for the original documentation to be made available under practice direction 32. It is clear to me that since it is disputed that the documents which the Claimant seeks to rely upon as the alleged “Credit Agreement” the only way to establish truly if they are indeed part of the same document is to produce the original document before the court. In addition, I am aware that there are many regulations and statutory acts which place a duty upon the Claimant to retain original documentation inter alia- the Money Laundering Regulations, the Companies Act 1985 sections 221 and 222 etc. so it stands to reason that they should be able to bring before the court a copy of the original document

55. I believe that the Default Notice dated 18th June 2008 is the one that the Claimant should rely on

56. This has not been served correctly nor is it in the prescribed form

57. The Default Notice that the claimant relies on and has submitted to the court is NOT a copy of the original and is an attempt to mislead and confuse both myself and the court

58. I wish that the claimants claim be struck out as per the reasons above.

59. Statement of Truth:

I, xxxxxx the Defendant, believe the facts stated within this Witness Statement to be true.

 

Signed:

 

 

Dated:

[atwozee]

I think the caselaw for invalid DN’s is Woodchester v Swayne & Co [1998] EWCA Civ 1209

 

Link here

 

And this is perhaps the important point and relevant to your case -

 

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".

[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

[fairbyblue]

Thanks for this, Done as you said and it does read much better

1st Witness Statement of XXXXX

10th March 2009

In the Xxxxxxxxx County Court

Claim Number: XXXXXXXX

Between:

MBNA Europe Bank Limited (Claimant)

-And-

XXXXXX (Defendant)

_________________________

1st WITNESS STATEMENT OF

XXXXXX

_________________________

1. I, XXXXX of XX Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, XXX XXX, being the Defendant, am a litigant in person in this case.

2. I make this Witness Statement in support of my defence against the Claimants claim against me.

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

4. In this statement I will refer to facts relating to the claimant regarding their failure to follow recognised procedures, practices and protocols during their prosecution of this case and their failure to respond to my lawful requests.

5. It is accepted that I had use of a credit card supplied by the claimant at the material times, but late in 2007, due to changes in my financial circumstances, I was unable to make the minimum payments requested on the monthly statements received by me from MBNA Europe Bank Limited. This led to MBNA making a series of telephone calls to me enquiring as to why the payments had not been made.

6. During these telephone calls I had explained to MBNA Europe Bank Limited about the change in my financial circumstances and that I was unable to make the payments which they were requesting. I tried to negotiate with them to get them to accept reduced payments and asked them to accept token monthly payment amounts of £30 and later reduced to £12, which was agreed. In case there is any doubt that there was a reduced payment agreement in place there are notes to that effect on credit cards statements referred to in MBNA4

7. The amount which I could realistically afford to pay per month was calculated by subtracting my basic living expenditure from my income and dividing the remainder between all my creditors on a pro-rata basis, and I then started to make the payments monthly. I also submitted an Income and Expenditure form.

8. On 20th June 2008 I received a Default Notice dated 18th June 2008 (Exhibit NRF1 and copy attached) from MBNA Europe Bank Limited served under s87 (1) Consumer Credit Act 1974.

9. This was signed by Mathew McGrath, Head of Customer Service.

10. However, the Claimant failed to set out the Default Notice 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 two deficiencies. Specifically, it failed to be accurate due to;

10.1. It failed to give the required period to remedy the default, i.e. it was issued on 18th June 2008, therefore the date of service was 20th June 2008, and the date given by which to remedy the breach was clearly given as 1st July 2008. This amounts to eleven days and not the required fourteen days as stipulated by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

10.2. In the default notice dated 18th June 2008 (NRF1) line 1 refers to “Clause 3 of that agreement provides that you must repay immediately the amount of arrears on the account” In the Terms and Conditions relating to this account provided by Restons on 10th February 2009 see (and note that Restons relying on copies) makes no mention of repayment of full amount and this clause deals with late charges and fees applied. The fees were £25

11. As I did not remedy by 1st July 2008 the account was terminated.

12. MBNA in this Default Notice said they WILL terminate the agreement.

13. 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’

14. In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 in conclusion it states “ 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".

15. I continued making regular reduced monthly payments to a MBNA Europe Bank Limited as previously agreed. I received a letter from the Claimants legal representatives, Restons Solicitors. This letter stated that Restons were instructed to review the amount that I had been paying, and included another Income and Expenditure form with a request for me to complete and return it. This I did and is refered to by Restons as MBNA 7

16. In the income and expenditure I wrote that I was paying MBNA on account number (which is different and altered by MBNA) £12 per month. MBNA has somehow completely changed my account number yet the agreed £12 is still being applied to the original account number which is the default notice dated 18th June 2008 is based on. It shows the remedy of £1601.39 as 1st July 2008.

17. On 29th October 2008 I received a further Default Notice with the original account number on, dated 27th October 2008.

18. 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.

19. I could not identify the Default Notice as I was paying under the ‘new’ account number and this still had the original account number on.

20. This document is not a true and accurate copy of the first

21. The amount to remedy is the same £1601.39.

22. The date of remedy was now 13th November 2008.

23. There have been payments to this account and therefore should have reduced. The credit card statements that Restons rely on referred to as MBNA 3 supports this.

24. The balance has been removed from the default notice dated 27th October 2008 and which Restons rely on

25. It is also signed by a Jennifer Mathews, Head of Risk and Recovery.

26. Restons now refer to Clause 8 in the Default notice dated 27th October 2008 whereas it was Clause 3 on the original Default notice from 18th June 2008. This is both misleading and shows that they are using different terms and conditions.

27. This shows that this document has been altered from the original Default Notice (NRF1)

28. There can only be one set of terms and conditions that I agreed to.

29. Restons have provided 2 separate Terms and Conditions which vary greatly

30. Restons throughout this process make no mention of the Default notice dated 18th June 2008 (NRF1)

31. Without any prior warning, on 27th November 2008 the Claimant, via its legal representatives Restons Solicitors, issued a County Court claim against me. This was despite the facts that I had not missed any of the agreed monthly payments, and that the account had been unlawfully terminated due to the Default Notice issued on 18th June 2008 not complying with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as stated above.

32. Furthermore, as no Letter Before Action was served or received, the Claimant acted in contravention of the Civil Procedure Rules, Part 1 the Overriding Objective, and Practice Direction the Pre Action Protocols paragraph 4.3

33. I tried to obtain legal advice on how I should proceed with my response to the Claimants claim, but as I had no available funds to pay for a solicitor, the only other option of which I was aware was the Citizens Advice Bureau. However due to my local Citizens Advice Bureau being under great pressure at the time due to the number of people they are trying to help, and the fact that appointments are only available on two days each week, I could not get an early appointment.

34. I acknowledged the Claim online via the MCOL website before the 14 day deadline and stated that I wished to defend the claim. I was then in a quandary as to how to defend the claim.

35. At the point where my defence was required I was not in possession of documents from the Claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The Claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules.

36. Because the Claimants Particulars of Claim were vague and insufficiently particularised and therefore did not provide me with the information which I needed to prepare a fully particularised defence, I was only able to enter a very vague defence, but stating that I had requested documents from the Claimant, and reserving the right amend my defence at a later date if the Claimant produced the aforementioned documents.

37. Also 27th November 2008 I sent to the Claimant by Royal Mail Recorded Delivery, a formal request under section 78 of the Consumer Credit Act 1974 for a copy of the alleged agreement, together with a cheque for £1.00 which is the amount required to cover the statutory fee. This is my legal right under s78 of the Consumer Credit Act 1974, and the creditor is legally obliged to provide this upon request and payment of the £1.00 fee.

38. On 1st December 2008 I also sent to the Claimant by Royal Mail Recorded Delivery a formal request under the Civil Procedure Rules for further information and copies of documents which they intended to rely on in Court.

39. The Consumer Credit Act 1974 s78(1) and its associated Regulations state that, inter alia;

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

40. The Consumer Credit Act 1974 s78(6) then specifies that the consequences of failure to comply with such a request are that the creditor is not entitled to;

78

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

41. On 3rd December 2008 I received a letter from Mr N Coe, Managing Director of Restons thanking me for my letter dated 27th November 2008 and returning my £1 with the following quote “Section 78 states “the creditor under a regulated agreement… Restons is not the creditor but in any account your account has been terminated as you have failed to comply with default notice and therefore our understanding is that Section 78 has no application in this matter”

42. On 3rd December 2008 I sent a Subject Access Request under the Data Protection Act 1998 to both Restons and MBNA Europe Bank Limited Exhibit NRFX and is attached

43. On 5th January 2009 I received letter from MBNA in relation to the subject access request. (Exhibit NRFXand is attached)

44. MBNA provided a statement of account under Section 7 of DPA 1998

45. This is not was asked for and is incomplete

46. MBNA have failed to respond to my statutory right

47. MBNA returned my £10 fee.

48. I am still awaiting the correct information from Restons

49. On 10th February 2009 I received a letter from Restons Solicitors which was accompanied by certain copy documents. These copy documents consisted of some of the items which I had requested in my request for further information under the Civil Procedure Rules, but by no means fulfilled my request.

50. However Restons Solicitors stated in their covering letter that the enclosed documents were those upon which they intended to rely in court, so I will therefore object if any other documents are produced which they have not already disclosed to me, and which they attempt to rely on in court.

51. The copy documents enclosed with the letter mentioned in Paragraph 48 above consisted of;

51.1. A document referred to by Restons Solicitors as “Credit Agreement dated 30th November 2005”

51.2. A document referred to as “Default notice dated 27th October 2008””

51.3. Statements of account,

51.4. Terms and conditions. These terms are not the ones originally sent to me as in Para 8.2, as APR is different ,clauses are different, no identifying marks to say that these terms are for my account, late fees are different now £12 as opposed to £25

51.5. Restons on behalf of the Claimant also asked in the letter if I would withdraw my defence !!

52. In February 2009 I received from the Court the Allocation Questionnaire which had to be completed and returned to the Court by 9th March 2009.

53. On 5th March 2009 I still had not received any of the requested documentation from either the Claimant or Restons Solicitors, so I completed my Allocation Questionnaire to the best of my ability and delivered it by recorded delivery to the Court office.

54. I courteously replied to Restons pointing out their continued failure to comply with deadlines set by the Court, and my statutory rights under CPR asnd DPA and provided them with copy documents they had requested.

55. I have yet to view the original credit agreement or any other original documents that the claimant seeks to rely upon, I am aware that the civil procedure rules makes provision for the original documentation to be made available under practice direction 32. It is clear to me that since it is disputed that the documents which the Claimant seeks to rely upon as the alleged “Credit Agreement” the only way to establish truly if they are indeed part of the same document is to produce the original document before the court. In addition, I am aware that there are many regulations and statutory acts which place a duty upon the Claimant to retain original documentation inter alia- the Money Laundering Regulations, the Companies Act 1985 sections 221 and 222 etc. so it stands to reason that they should be able to bring before the court a copy of the original document

56. I believe that the Default Notice dated 18th June 2008 is the one that the Claimant should rely on

57. This has not been served correctly nor is it in the prescribed form

58. The Default Notice that the claimant relies on and has submitted to the court is NOT a copy of the original and is an attempt to mislead and confuse both myself and the court

59. I wish that the claimants claim be struck out as per the reasons above.

60. Statement of Truth:

I, xxxxxx the Defendant, believe the facts stated within this Witness Statement to be true.

 

Signed:

 

 

Dated:

[robcag]

Hi fb

 

does para 54 apply to your case?

 

Cheers

Rob

[fairbyblue]

Hi fb

 

does para 54 apply to your case?

 

Cheers

Rob

 

Erm no!! good point. Who'd want to be a lawyer. My head is done in with all this.

[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