MBNA/Restons court claim form

[pompeyfaith]

In my case they the claimants filed for an SJ in Nov 08 before suppling me with the docs i request on a cpr 18 which i requested in July 08 but never got until jan 09.

 

Watch they dont try this with you.

 

Pol i will post up all my Witness Statements and then you can cut and paste anything you want.

 

Regards

 

PF

[pompeyfaith]

On behalf of: Defendant

Witness:

Number: 2

Exhibits:

Date:

IN THE PORTSMOUTH COUNTY COURT Claim No:

 

 

BETWEEN

MBNA EUROPE BANK PLC

Claimant

And

Defendant

 

 

WITNESS STATEMENT OF

I, .................................................................................... will state as follows:

 

1. I am an Unpaid Carer and defendant in these proceedings .I make this witness statement in opposition to the claimant's application for summary judgment.

 

2. The matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where any matters contained in this witness statement are not within my own knowledge, I have stated the source of my information.

 

3. There is now produced and shown to me a bundle of documents marked "LC1". The exhibit LC1 contains copies of the credit agreement and Default notice served by the claimant

 

4. There is now produced and shown to me a bundle of documents marked "LC2". The exhibit LC2 contains copies of the Judgment in Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

 

5. There is now produced and shown to me a bundle of documents marked "LC3". The exhibit LC3 contains copies of the section 87 88 and 89 Consumer Credit Act, Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561) and Regulation 2 of Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557)

 

6. The respondent does not accept that the applicant has established that there is no compelling reason why there should not be a trial. The applicant has failed to supply any evidence which supports that the claim should be disposed of without trial. The respondent would seek to draw to the courts attention the following matters

 

7. The applicant / claimant failed to supply the respondent/ defendant any documents which the applicant mentioned in their particulars of claim and which were central to the applicant’s case. The respondent asked for the documents, which were pleaded in the claim on 16TH July 2008, but the applicant failed until 30th December 2008 to supply these documents. The applicant is fully aware that I am a litigant in person and therefore I have been placed at a disadvantage by their failings as I have been unable to compile a fully particularised defence

 

8. The applicant has now disclosed a copy of the agreement and the default notice, which its claim is based upon, from the brief time that I have had to digest this information I wish to raise an issue, which I would expect to expand upon at trial. The default notice is materially defective, the notice states that I have breached clause 8 of my agreement, however if we look at the agreement there is no clause 8.

Furthermore the default notice the claimant has produced to court in the court bundle is not the original default notice but an altered document to make the court believe that the claimant has complied with the Interpretation Act 1978, Section 7

This states:-

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1. Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2. To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) In the case of first class mail, on the second working day after posting.

(b) In the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3. Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4. This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

So clearly as the original default notice has a date of 14th April 2008 and a date to remedy the breach of 28th April 2008 no time was given for service of the default notice also as the original default notice states that I have broken clause 3 but the altered default notice states clause 8 the defendant is unsure which clause he has broken.

 

9. The consumer credit act 1974 s87 & 88 are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies. Regulation 2 of Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) states

(2) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section 88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

10. At schedule 2 Para 3 of the regulations it states the following

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3 a specification of: --

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

11. Clearly the fact that the default notice does not comply with the requirements as underlined in Para 8 above. The provision of the agreement alleged to have been breached is clause 8 relating to repayments and clearly the agreement produced does not have a clause 8 therefore there is no way clause 8 could have been breached

 

12. This is not a de minimus issue and the courts attention is drawn to the judgment of Kennedy LJ in the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 (Exhibit PF2) in the Court of Appeal, in this judgment Kennedy LJ states inter alia

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 Gruffydd conveniently referred to as 'the next step'.

 

13. Therefore, it would be the respondent’s position that the applicant / claimant would be barred from succeeding in this claim due to the fact that the default notice which has been submitted was defective

 

14. In addition, the document, which has been supplied, fails in its entirety to comply with the requirements of Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557). Regulation 2 of these regulations states that

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

15. I would point out that the Claimant is seeking an order to enforce the agreement therefore the claimant is required to abide by these requirements and produce a copy of the agreement which is in an easily legible form as required by regulation 2 as set out above

 

16. In addition to the points raised I would ask for the court to allow me to amend my original defence as at the time I submitted the defence I did not have in my possession any of the documents which the claimant has now disclosed, despite my requests for further information and given that I am a litigant in person there are a number of other issues which have now come to light in view of the claimants disclosure and therefore respectfully request that I be given the opportunity to defend this action. I make this request with the overriding objective in mind as set out with CPR 1

 

17. I therefore request that the court do dismiss the applicant's application for summary judgment.

 

 

I believe that the facts stated in this witness statement are true.

 

Signed ________________________

Dated ________________________

[pol76]

Cheers for the WS i will have a look and see what i can butcher

 

all the best

pol76

[Mydogsawestie]

Any news pol76 just wondering where you were up to???