mbna / restons defence for ccj help needed

[phatram]

http://www.consumeractiongroup.co.uk/forum/legal-issues/122431-me-mbna-abbey-mbna.html

 

[zara35]

just to update all on this case. I have been into court for a final hearing today with MBNA/restons and the judge ruled in favour of them.

 

I appointed a Barrister to argue for me as I did not feel confident and he argued 3 points.....

 

1.Default notice invalid........the judge made refernce to new CPR directions from 2008 which includes a sat for postal days and made the decsion that if it had been posted on the 9th jan (fri) it would have been served on the 12th (monday). He then said the fact that 14 clear days were not given but only 13 as it was dated 26th for remedy did not prejudice me in any way and therefore ruled it to be valid for this case.

My barrister aslo made ref to the default notice referring to breach of section 8 in it but on the agreement there is no section 8 and the barrister for restons said that MBNA explained this as an error which could easily be made and the judge was quite happy to accept this and required no further info on it.

 

2.S78 not fully complied with........A copy of the agreement was sent with current t&c, no originals have ever been received. No enforcement action should have been taken until it was fully complied with. The judge dismissed this totally and again said that I had not been prejudiced because of it.

 

3. My barrister argued that there was no evidence provided to suggest that a copy of the executed agreement along with cancellation notices had been sent within 7 days and this makes it unenfocable under s127(4) and that the burden of proof was with the claimant. The judge agreed and the barrister for restons confirmed there was no evidence. However, the judge decided that he would give them the benfit of doubt that it would have been sent and therefore ruled it was enforceable.

 

No argument was made reagrding not having the original in court to prove the prescibed terms were on the reverse etc as I was advised that best evidence rule applies in a small claims court and that the judge would not make them produce the original nor allow cross examination of witnesses regarding where the document came from, who copied it etc etc....

 

All in all extremely dissapointing ....a judgement was not entered but i have been ordered to pay the full amount plus £340 costs.

 

I anyone had any opinions or would like further info or can advise on next course of action I would love to hear from you.

 

Basically my case hinged on whether what had been argued had prejudiced me in any way and the judge thought NOT.

 

Thanks for all your help and good luck to the rest of you.

[Hussy786]

I am so sorry to hear That Zara and also scared as well as i was hoping that my misery will be over.

I am more upset now

[zara35]

Dont be scared the worst thing that can happen is you get a CCJ....I will help you all I can based on what has happened to me and on what they argued in court and it should help a lot of others...

[Hussy786]

Hi zara

 

Thank you . I really need some help as I am in debits and want some personal experience from a person who has seen and dealt it (like yourself)

[zara35]

ok well I need to go offline now to make tea etc.....but will be happy to help. You can mail me to ask any questions and i will do my best to help you. I have gained a lot of knowledge during this process and would probably feel confident to do it myself next time and would have made a better job of it I think.

[Hussy786]

Thank you so much

[underdog13]

I'm so sorry you had such a disappointing result, Zara. The judge sounds totally biased, IMO.

 

Frankly, I think you have grounds for an appeal.

 

Were you happy with your own Barrister's performance (notwithstanding the outcome), or did you find him lacking?

Edited July 9, 2009 by underdog13

[underdog13]

Did you at least prevent them from getting s69 interest?

[angry cat]

zara, you need to appeal this!

 

AC

[zara35]

i found him lacking to be honest...they got interest awarded of £85 ....8% statutory....dont know enough about this myself so is this normal???? restons claimed costs of £1800 but were awarded £340 fixed costs.

 

I am looking into appealing it but not sure yet.

 

Can you explain why I should appeal as the barrister advised not to. Has anyone any experience with it.

 

I had filed a witness statement with lots of case law and this was not even looked at or referred to at all which I was a bit miffed about

[citizenB]

 

1.Default notice invalid........the judge made refernce to new CPR directions from 2008 which includes a sat for postal days and made the decsion that if it had been posted on the 9th jan (fri) it would have been served on the 12th (monday). He then said the fact that 14 clear days were not given but only 13 as it was dated 26th for remedy did not prejudice me in any way and therefore ruled it to be valid for this case.

My barrister aslo made ref to the default notice referring to breach of section 8 in it but on the agreement there is no section 8 and the barrister for restons said that MBNA explained this as an error which could easily be made and the judge was quite happy to accept this and required no further info on it.

 

.

 

Sorry to hear this Zara.. I am interested in these new postal regs.. if your DN was posted before 2008 then I am sure any new regs wouldnt be applicable. I will check that out.

[underdog13]

Glad the judge cut their costs down so drastically. At least that's one result!

 

I'm surprised the Barrister advsied you not to appeal. Was consumer law one of his areas of speciality?

 

I believe s69 interest applies until the full debt is repaid and I don't think they are entitled to that.

[zara35]

The deafult notice was posted on jan 9th 2009. He asked my barrister if he had taken new cpr directions into consideration when working out the postage and he said he had not....even taking them into account thought still made it invlaid and the judge admitted they had only given 13 days but said it had not prejudiced me in any way and therefore he deemed it valid ???????

[underdog13]

Have a look at this thread - the OP is considering an appeal; might be helpful to you.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/190992-reggie-eversheds-arrow-global-16.html#post2278948

[underdog13]

The deafult notice was posted on jan 9th 2009. He asked my barrister if he had taken new cpr directions into consideration when working out the postage and he said he had not....even taking them into account thought still made it invlaid and the judge admitted they had only given 13 days but said it had not prejudiced me in any way and therefore he deemed it valid ???????

 

Well I can't print what I think of that on an open forum and stay polite!

[zara35]

He awarded interests up to date of judgement and no more....so the debt is fixed, if that helps.

 

He was a pupil of a consumer law expert who could not take the case as she was bsuy but she recommended him and had her advice ....he generally deals in bankruptycy etc and i must admit his arguments were not good enough and I was a little dissaponited with his performance. The restons barrister ate him alive lol and put enough doubt in the judges mind as far as I was concerned.

[zara35]

Thank you I will take a look and keep you all posted.....i can offer any help to who ever needs it....as I have said before....restons argued that i had the card had used the money had signed the slip of paper and that I had not been prejudiced in any way by them not comnplying with a few technicalities as he put it. What can you do ??????

[postggj]

I Was In Court 2 Weeks Ago Helping Out A Pal Ref Marlin/arrow/mbna

 

I Had A Lousy Default Notice Along With Starting A Claim While In Default Of Cca

 

Judge Threw There Claim Out

 

 

You Have Been Prejudiced

The Law Is The Law

Its Written In Stone

14 Days

[zara35]

Thats what I think but how do you convince a judge if he is going to give them the benefit of the doubt ?????

[underdog13]

Here's another thread that may be helpful to you Zara;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/208173-having-rankine-american-express-3.html

[postggj]

I Think Pt Needs To Have A Look At This

Ground For Appeal Me Thinks

Not My Area

Thats Why You Should Have A Chat With Pt

[zara35]

Restons quoted the rankine case too......he had copy of it but the judge did not look at any of the case law....there was plenty there in my witness statement which was completely overlooked and not referred to once during the hearing despite there being about 200 pages of evidence

[zara35]

Thankyou....how would i get in touch with him ???

[underdog13]

Thats what I think but how do you convince a judge if he is going to give them the benefit of the doubt ?????

 

Indeed, but thank goodness we can apply to appeal in most cases.

 

Glad they only got interest to date - when they add on post judgement interest (which is what they were asking for), it's truly alarming how much this can ratchet a debt up.