mbna / restons defence for ccj help needed

[postggj]

The Site Team Will Be Looking In So I Would Think A Message Has Been Put In Pauls Inbox

 

By The Way

Marlin Quoted Rankin In My Case

The Judge Replied

 

The Less Said About That Case The Better

 

Seems You Just Had A Bad Judge On The Day

[zara35]

thanks guys......any help would be great....I have little faith in the justuce system at the moment. I wouldnt care I offer them £500 to avoid this and they counter offered with £1200....wish I had just paid it now but I thought I had a good case.

 

Im off for tonight but will try and pop in at weekend.

 

Paul if you can help I would really appreciate your advice before I go any further. I can give copies of my witness statement and the Barristers submissions if necessary...which by the way are wrong in parts but wont go into that. I also took a lot of notes if that could help.

 

thanks again

[banker_rhymes_with]

Hello Zara35!

 

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

The short answer is you can't. A duffer Judge is a duffer Judge.

 

But you can and must Appeal.

 

The Judge has confirmed in Court that the Default Notice was defective, as it clearly did not allow you 14 clear days.

 

The Judge then misdirected himself. That is your primary point of Appeal, and it's a powerful one.

 

I regret there are a few cases like this at the moment, and no doubt dozens more we never even hear about on CAG.

 

But you can seek true Justice, and that is via Appeal.

 

It also seems that you ended up with a lame Barrister who was not in any way qualified to fight a Consumer Credit issue. Have a go at his Chambers, and see if they will agree to let you have a better Barrister, for free, to handle the Appeal for you. Suggest they can salvage their reputation next time around. But do try harder next time!

 

Cheers,

BRW

Edited July 9, 2009 by banker_rhymes_with
Can't type.

[underdog13]

Zara, going back to your DN - did you keep the envelope it came in? I have only ever known MBNA to send DNs out second class; which would leave you considerably less than 13 days to comply.

[zara35]

No but they quoted in their witness statement that it was reconstructed and there was no evidence of it being issued in their comms log despite their being ref to every other letter sent by me and issued by them in there.

 

Thankyou for your advice re barrister I will speak to my solicitor and see if he can help with that one it is a good thing to try with that anyway

[banker_rhymes_with]

Thankyou for your advice re barrister I will speak to my solicitor and see if he can help with that one it is a good thing to try with that anyway

 

He lost what should've been a winnable Case, so it's not too surprising he does not want you to Appeal. He probably wants to bury that one and move on.

 

A Barrister with more get up and go would want to sort that and win, but a Barrister with more get up and go would've won in the first place!

 

Cheers,

BRW

[postggj]

Hey Banker

 

It Says It All When Caggers Know More Than A Barister And Go On To Represent Themself In Court

 

Says A Lot For The Old Boy Network

[citizenB]

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 ???????

 

I dont suppose he gave any reference re these new CPR rules. Because all I can find is what we alread know.. that it is business days which are classified as Monday to Friday and no bank holidays.

[banker_rhymes_with]

Hello Postggj!

 

Yes, most Caggers cannot afford a Barrister, so to see someone lose a winnable Case when armed with one is really annoying...a good Barrister should be able to handle a duffer Judge, unlike a Litigant in Person.

 

So, that Barrister left a lot to be desired it seems. If he couldn't hack it, he should not have taken on the job.

 

Cheers,

BRW

[banker_rhymes_with]

Hello CB!

 

I dont suppose he gave any reference re these new CPR rules. Because all I can find is what we alread know.. that it is business days which are classified as Monday to Friday and no bank holidays.

I think the CPR they were referring to is this:

 

PART 6 - SERVICE OF DOCUMENTS - Ministry of Justice

 

IMHO, that is not applicable in any event, as it's to do with Service of Court related documents. That doesn't even mention 2nd Class, for example.

 

I think this is wholly to do with Claim Forms and all the related correspondence that is sent in relation to a Claim.

 

Note the first bit:

 

I SCOPE OF THIS PART AND INTERPRETATION

 

Part 6 rules about service apply generally

 

6.1

 

This Part applies to the service of documents, except where –

 

(a) another Part, any other enactment or a practice direction makes different provision; or

 

(b) the court orders otherwise.

 

(Other Parts, for example, Part 54 (Judicial Review) and Part 55 (Possession Claims) contain specific provisions about service.)

 

I take that to mean this area of CPR applies, unless something else already applies, such as The Interpretation Act 1978 and The Queens Bench Practice Direction 1985 that clarified the Interpretation Act 1978 to cover 1st Class (+2 Working Days) and 2nd Class Postage (+4 Working Days).

 

The CPR is not the correct reference, because applicable enactments and practice directions already apply when it comes to general documentation and notices that are not, in themselves, directly part of a Claim at the time they were sent.

 

Cheers,

BRW

[zara35]

Hi there....he referre to practice directions from 2008 nobody questioned what he was saying even though I had s7 interpretation act and practice direction from 1985 on post in witness statement.

[zara35]

He definately used the sat as normal course of business......and looked at it on his calender and worked it out....in any case I dont think it would have mattered as even if they had only given 10 days I think he would have still ruled in their favour

[angmarie]

Zara

 

How dissapointing for you, after all that hard work maybe you should have defended yourself sounds as though you had your case in order.

Im waiting for hubbies cca, 14 days were up on 6/7/09 but only posted £1.00 other day so we give them benefit of the doubt for now. Of course we all know they really need that £1.00 before they get lost in the archives, poor dears.

 

good luck

 

Ang

[Rhia]

Oh why am I not surprised to hear this. I am increasingly of the opinion that there is some movement by the judges to put us off court action or defending court action.

You must appeal this. Did the barrister give you his reasons why he thinks you shouldn't?

Hard luck but don't give in.

[underdog13]

The general consensus seems to be that a lot of these deputy district judges aren't really up to speed and you will have a better chance of justice at appeal.

 

Remember, Mrs Wilson won on appeal.

[Hussy786]

Hi ALL

 

I need your Urgent help.

 

1. I have sent MBNA and capital one CCA request with one pound PO and obtained proof of posting.

 

2.MBNA called me yesterday and offer me arrangment on account for £65 a month and all interest and charges will be frozen and If I dont break arrangment there will be no further black marks on Credit File etc

The advisor also said if I am on arrangment there will be no claim game either (lol)

 

If i dont take arrangment pay £48 for 6 months and then the account will be sold to DCA and it is up to them what they do to me.

I need guidance shall i go for arrangment (not sure wheather I can afford it or not for 5 /7/10 years (Debit is about 8.5K).

 

I need guidance If I

 

take arrangment can I still pursue them for Unenforced credit.

Loose in court what would happen would they cancel arrangment and ask me to pay there and then?

While I am on arrangment can i not claim charges fees?

I have made a PPI claim through a firm and they refuse to pay a penny and that firm is still thinking what to do (2months now).

I am scared if they have refused PPI claim they might have a strong case against me.

Please I wil be grateful if you all great people advised me what to do?

(I have not said yes to Arrangment yet and ask the advisor to call me on 24.07.09 that is the date when CCA request timeline runs out )

Please advise as I am so confused and upset.

Thanking you all in advance

[Rhia]

HUSSY 786 - start you own thread and link it from here. You will need to go into detail and it will hijack this thread and no-one will gain any benefit. MBNA are bullies. Have they sent a properly executed agreement? If not how can you agree to anything without seeing what you allegedy agreed to in the first place?

PPP you may have been mis-sold. I would take this to the Financial Ombudsman I think - they are finding for the debtor in some 90% of all cases. If your debt consists of penalty charges, late charges and PPI then MBNA is slightly stuffed but we can't tell without your details.

Start that thead and we can all start to help you make informed decisions.

[Hussy786]

Hi Rhia

Thank you for your Kind reply .I did try to create my own thread but I dont know how to?

I have seen info that there is a button on top left hand corner but I cannot see(find) it.

Please help me to do so/

I sent CCA request yesterday so have to wait what they got in store for me.

Thank you once again for your Kind reply.

[Rhia]

Go back to the main folder (just click back twice) and at the top it says thread starter. Just click and start writing.

[Mydogsawestie]

Hi Zara35 thanks for all your info posted. Am in court on Monday against Restons myself so glad of the forewarnings on your post to help me prepare more strongly in my case. I have subbed here with great interest in mind...thank you.

[Hussy786]

Hi Rhia

Thank you for the help I will try

Hi Mydogsawestie

Please keep us all updated and good luck

[zara35]

hi guys

 

i am currently in talks with my solicitor and debating an appeal. If anyone can advise I would really apprecaite this.

My understanding is. If we go for an appeal on the DN and the ruling was overturned and the case dismissed, MBNA would go back into court again after issuing a new valid one as the court has already indicated that the agreement is enforcable.

So my question would be....would I appeal on the grounds of the enforcability ruling i.e They have no evidence that a signed executed copy of the agreement and cancelation notice was ever sent out within 7 days of signing and therfore it is unenforcable under section 127(4). The original judge obviuolsy gave them the benefit of doubt and ruled it was enforcable whos to say an appeal judge wouldnt do the same......

The original document apparantly doesnt hold any weight in a small claims court......so the copy was sufficient to cast doubt.

 

any comments on this would be welcome

thanks for all your comments What are your rights at work Follow this link to read the review of the Guide to your Rights at work, published by Lawpack

[underdog13]

What's your solicitor's take on MBNA reissuing another DN, Zara? I thought that once an account was terminated - and I would say a court case is indication of termination - that there was no agreement still in existence to be defaulted again?

[diddydicky]

hi guys

 

i am currently in talks with my solicitor and debating an appeal. If anyone can advise I would really apprecaite this.

My understanding is. If we go for an appeal on the DN and the ruling was overturned and the case dismissed, MBNA would go back into court again after issuing a new valid one as the court has already indicated that the agreement is enforcable.

So my question would be....would I appeal on the grounds of the enforcability ruling i.e They have no evidence that a signed executed copy of the agreement and cancelation notice was ever sent out within 7 days of signing and therfore it is unenforcable under section 127(4). The original judge obviuolsy gave them the benefit of doubt and ruled it was enforcable whos to say an appeal judge wouldnt do the same......

The original document apparantly doesnt hold any weight in a small claims court......so the copy was sufficient to cast doubt.

 

any comments on this would be welcome

thanks for all your comments What are your rights at work Follow this link to read the review of the Guide to your Rights at work, published by Lawpack

 

i personalyl would ammend "what the court said" to "what the seriously lacking judge said" and give the appropriate amount of weight to his arguments

 

I personally have seen nothing to say that saturdays now count as working days

 

IMO it matters not one jot if the dn is out by 1 day or 4 days

 

 

if the courts use the argument that one day didn't prejudice you then why does the act not allow 13 working days instead of 14 (then 12 then 11 etc)

 

What if your uncle was out of the country and was due to arrive home 13 days after your dn deadline and you thought to yourself

 

thats ok he'll be back on the 13 th day i'll get the money off him and pay it to the creditor on the 14tth day- oh dear missed the deadline

 

On appeal the judges decision making processes needs examining

 

for instance HOW did he come to the conclusion that you were not prejudiced?

 

if he regards one day short as de minimus, what led him to this decision and what number of days short WOULD he "draw the line at"

 

similarly with respect to the absence of an agreement and his decision that s127(3) did not apply

 

The barrister for the creditor admitted that the creditor made two errors in the DN

 

yet the judge, in the full knolwedge that the creditor does indeed make errors, chooses to accept their word that there would have been an original agreement and that it would have complied!!

 

this is indeed IMO a thoroughly bad decision I wouldnt mind betting that apart from his clear bias towards the plaintiff i reckon he thought to himself " well if she can afford a barrister at a lower court hearing she cant be that badly off"

 

perhaps a barrister at a sub 5000 hearing was a bad idea?

 

(a question not a statement)

[diddydicky]

Im not legally qualified but i would have thought that the basis for the appeal has to be the judges total misdirection (to himself)

 

 

whilst the reference to clause 8 in itself is de minimus it does however lead to the fact that together with the more serious DN defect the creditor is capable of making minor AND serious mistakes and the judge could therefore not properly assume that any missing credit agreement would be enforceable

 

then there is the proposition t that a saturday could be counted as a working day

 

that it was sent first class when it is clearly understood that IN THE ABSENCE of proof to the contrary service is assumed as served second class

 

then of course the judges ammendment to the cca by altering the default notice period from 14 to 13 days and the authority for his discretion in this matter

 

and of course the non existent original signed cca

 

i may be wrong on some of these but i think there are tons of grounds for appeal

 

i also agree that some of these points should be raised with the barrister and you should say OI- you should have known this

 

the very least they could now do is a no win no fee job with an appeal