MBNA / Restons

[Cartier-Bresson]

Thanks to everyone offering their best wishes and support. I'm just going through my docs now and preparing my expenses etc.

 

If Restons are reading this [probably are] .... could you advise your representative solicitor that I'm very much looking forward to meeting with them this afternoon.

 

I'll be logging off at 1.30pm ish .... so any last min advice would be much appreciated.

 

Fondest Regards > CB

[GamekeeperToPoacher]

C-B

 

I have PMed

 

GK

[Cartier-Bresson]

Logging off now ..... T-minus 2 hrs 20 mins and counting !

 

Call in tomorrow morning folks .... if you are eager to know what happened ! A full report will be logged detailing all the tricks and gossip !

 

Regards ..... Cartier-Bresson

[citizenB]

Logging off now ..... T-minus 2 hrs 20 mins and counting !

 

Call in tomorrow morning folks .... if you are eager to know what happened ! A full report will be logged detailing all the tricks and gossip !

 

Regards ..... Cartier-Bresson

 

Nice n early I hope:D

[Cartier-Bresson]

Sorry ..... couldn't resist .... T-Minus 57 mins and counting. On my way to court now !

 

Just got back from work to get ready to go to court and what should be on my doormat but a letter from Reston's detailing all their costs associated with this case .... comes to over £900 !!!

 

You gotta hand it to 'em .... those boys will try anything to put you off ! See you there fellas !

 

I may be up a little late tomorrow morning Citb ... depending on how either my celebrations of commiserations go in the pub tonight ! Will definitely post details either way though !

 

cheers all ..... see ya ! CB

[sunflower99]

Hope all went well CB! We all waiting with baited breath to hear how it all went.Hope its celebrations you having.

[AA99]

I'm almost tempted to wait up all night for a posting:eek: I'm just thinking whichever way it went, we will all be here to back each other up

[Cartier-Bresson]

Well folks ……. Here it is ….. the news you have all been waiting for !

Firstly I can confirm that it was a thoroughly miserable experience from start to finish and I left the court feeling like I had done ten rounds with Mike Tyson !

I met the Reston’s brief before entering the court and actually got on very well with him …I explained that I didn’t want to discuss anything with him before entering the hearing and he seemed cool with that …saying ‘keep your powder dry’ etc ! I think he was quite surprised that I already knew his name and where he was from ! He did ask if I had received my ‘Claimant’s Costs Schedule’ … which I said I had … that morning ! [scare tactics] We chatted quite a bit about other issues and had a laugh with the usher … who was actually looking for an ‘early dart’ due to the fact it was 3pm on Friday afternoon ! I jokingly suggested that we could all leave early if Reston’s brief decided to ‘tip me the nod’ and discontinue !

Once in the court all joking stopped. The DJ was extremely serious and very intimidating I found. I was going into this situation as a LiP and was under the impression I might have been offer a little sympathy. I feel none was given what so ever !. In fact I would go as far as to say that I was made to feel like a complete pain in the backside and that I was the sole reason why the DJ had to still be at work at 3.15pm on a Friday afternoon. The clocked was continually watched throughout the whole proceedings.

After some initial patter …the DJ asked if I could give a summary as to the points of issue I had. The DJ did not have a copy of my WS …. So I had to hand mine over …. which completely confused me …. that was my main document to refer to ! How could the DJ not have seen this document prior to the hearing ? Absolutely unbelievable ! I posted it by hand ! I actually think this was very wrong of the DJ …. Not fair at all.

I mentioned both the potentially invalid DN [due to timings … 13 days to remedy the breach etc] and the issues I had with the CCA [front and back copies of docs not relating to each other etc].

Reston’s brief explained the issue regarding the DN dates ….. and basically savaged my argument. He went through the whole thing explaining everything and backing it up with references to law etc ….. I was completely browbeaten by this and felt totally isolated. The DJ accepted what he had to say and invited me to speak …. I didn’t really have an lot to say at this point as I felt I was going to be thrown out of court for wasting time etc ! It was an incredible lonely place in there for me !

It was agreed that the DN was effective and we moved on to my issues with the CCA. I still had an issue with the DN regarding the fact it referred to paragraph 8 of the agreement …. But when you looked at para 8 in the agreement it was something completely different. The DJ wasn’t interested in this at all by now and actually looked annoyed … the DN was apparently effective … end of story !

My concerns regarding the CCA and the issues regarding one side of the doc not relating to the other were a little more successful and were upheld. The long and short of it is that the hearing has been adjourned until the 4th of Sept. [something the DJ did not want to happen.] I told the DJ that I would like to see the original copy of this doc as I was under the impression that this was what had to happen in court …… according to my DJ …. apparently not ! It was stated that this was NOT a requirement in law and that a ‘true copy thereof’ would suffice. I explained that I thought this was wrong and that we should be dealing with originals … this was again squashed and the DJ stated that a copy of the executed agreement was fine. I said that I thought the CCA that MBNA had for me was a ‘work of fiction’ and that it had been ‘copy and pasted’ to suit their needs. I made the point again about the mention of ‘Condition 11’ on the front page and its corresponding different point on the back page. Reston’s brief told me that this clearly referred to condition 11 in the ‘four page’ copy of the T&C’s that MBNA had provided for me….. making me look really stupid ! I looked at this again and said that it was still different …. By this time the DJ seemed totally uninterested ! The DJ insisted that the case be seen by her/himself when it reconvenes.

The hearing ended with the DJ instructing Reston’s brief to go away and ensure the claimant can prove that the CCA is a ‘true copy’ as stated in their WS and it ‘embodies all the conditions referred to ….. especially condition 11 !’ The DJ stated that the claimant was not required to produce the original copy and that this all needs to be done in plenty of time.

The costs were reserved and 21 days were allowed. I am to reply by 18th September, pending Reston’s reply regarding the CCA.

I really don’t know what all this means to be honest …. I think that if MBNA can’t explain why condition 11 doesn’t relate to 11 on the back page of their supposed document then I may be in with a chance ….. but I left that courtroom feeling very despondent

On the plus side though … I had a pint with a very experienced solicitor friend of mine last night and explained what was going on to him. He suggested that an adjournment is a minor victory of sorts as it prolongs the process and avoids summary judgment. I am worried that this will just increase the court costs [which currently stand at £900 on a debt of £3,000 !] The DJ was very specific to ensure I understood what I was doing by going through this process and that I would be responsible should the ruling go against me ! I was really taking it from both sides in there to be honest !

I thought that the costs were capped in a small claims court ….. how can I be expected to find £900 worth of costs on a £3,000 debt ! This will probably be doubled by the time we go back again !

Any advice would be appreciated.

CB

[citizenB]

This is so wrong.

 

I should have warned you to take an extra copy of everything.. handing over your copy left you disadvantaged and has happened to someone else on the forums.

 

Your friend is correct, in that the adjournment is a victory of sorts and gives you time to regroup and strenghten your arguments.

 

I will mark this up for the attention of the site team.

[supasnooper]

Oh FFS !!

 

Judges.......what planet do they come from !

 

The was for a Summary Judgment.

If the defendant can show that there is a case for trial then the application should have been dismissed and costs awarded to you.

 

Sorry to have read your report........ just shows the Judge lottery at work again.

[sunflower99]

Oh CB so sorry you had such an awful expereince in court:mad:But as you say look on it as a sort of victory as it sounds like you did very well under those dreadful circumstances and stuck up for yourself! So well done and at least they not succeded with SJ yet and you will get a chance to fight them again and get more advice of this site how to proceed.What a rotten thing to do to you that DJ takeing your coppy away:mad: you were so unfairly treated so well done for still managing to stand up for yourself and get things at least adjourned so they not won yet.xx

[sunflower99]

Is there a chance CB will get a different judge on next hearing? I do hope so and he has better luck in judge lottery

[Cartier-Bresson]

Same judge ..... this was specified at the Judge's request.

 

I'll need to go back in armed really. I don't feel like I was given any sought of justice really. As snoops points out .... if there is a doubt surrounding one of the key pieces of evidence IE: The CCA .... which there evidently is .... then how could the DJ do anything but dismiss the application for Summary Judgement ???? I don't understand this at all ..... why is this process so subjective and dependant upon different peoples opinions ? I thought this was suposed to be a court of law and totally objective ?

 

I also mentioned that I didn't think it was right that the claimant sent their most recent WS 2 days before the hearing ... [should be at least 3] The point was agreed by the DJ and I was asked if I wanted to adjourn to have enough time to absorb what it said ..... but this was after it was made quite clear to me that the DJ did not want to adjourn the hearing ! Totally confusing ...... I ended u saying that it was ok to use this WS and that I had read it ..... and that I'd like to try and sort things out during the hearing if possible ...... did I do the wrong thing here ?

 

I'm getting a bit concerned really .... don't know what I should do !

[sunflower99]

Same judge ..... this was specified at the Judge's request.

 

I'll need to go back in armed really. I don't feel like I was given any sought of justice really. As snoops points out .... if there is a doubt surrounding one of the key pieces of evidence IE: The CCA .... which there evidently is .... then how could the DJ do anything but dismiss the application for Summary Judgement ???? I don't understand this at all ..... why is this process so subjective and dependant upon different peoples opinions ? I thought this was suposed to be a court of law and totally objective ?

 

I also mentioned that I didn't think it was right that the claimant sent their most recent WS 2 days before the hearing ... [should be at least 3] The point was agreed by the DJ and I was asked if I wanted to adjourn to have enough time to absorb what it said ..... but this was after it was made quite clear to me that the DJ did not want to adjourn the hearing ! Totally confusing ...... I ended u saying that it was ok to use this WS and that I had read it ..... and that I'd like to try and sort things out during the hearing if possible ...... did I do the wrong thing here ?

 

I'm getting a bit concerned really .... don't know what I should do !

Oh CB double drat.So you definitly going to get same judge and he wants to carry on residing over your case.So you can not even pin your hope on getting a more symphathetic DJ Its Times like this when we wish we were in a positiuon to afford hire a soliciter:( Restons know we as LIP are at the mercy of the judges lottery and they know that people like us can not aford legal representation

[pedross]

Think positive CB

 

You went into court not really knowing what to expect and Restons brief lulled you into a false sense of ease before entering the court.

 

You went in not fully prepared for what was going to happen and they went in fully prepared.

 

At the next hearing they will have gained nothing from this experience but you will have gained a lot and will be 500% more prepared and then able to present your case in a more authoritive and disciplined way.

 

I will be interested to see how others feel about the DN because I believe that you should be able to bring to the courts attention that Restons facts were incorrect and it is in fact defective as 13 days does not allow them to gain the benefits of s87. What was the argument which the DJ accepted regarding it being effective?

 

Pedross

[pedross]

Is the DN posted up I have just been through the thread and could not see it.

[AA99]

What a shame and a thorough disgrace to the legal system:mad: Subbing with interest Would like to see the DN too. There is a quotation somewhere of the law regarding a defective DN that they are only allowed to collect the arrears at the time of issue of same even if the CCA is valid. Someone smarter will be along with it soon I hope;)

[Cartier-Bresson]

Thanks for all support guys .... just got back from a nice day out with the family to take my mind off things !

 

Wise words Pedross .... I have just attached the DN for all to see. The date it was created was Friday 6th March .... I received it on tuesday 10th march. Remedy date was 23rd March ..... don't think there is any mileage left in this one though as the DJ seemed very keen to just draw a line under it. The DJ was also convinced that the Reston's brief had dealt with this thoroughly relating to law etc. You can take a look and do the maths regarding the date though ... I worked it out to be 13 days ... but its all down to when you start counting ... what days you do and don't count etc. Reston's breif just made it quite clear that the timing was good for 14 days and backed it up with law speak etc.

 

One point I did find interesting though was the DJ allocated 2 hours for the next hearing. Why so long ? Yesterday's hearing was only allocated 45 mins. Do you think this is in case it actually has to go to trial ...or would this be set for another day / venue ? Or would this be to dish out my CCJ if all fails !!

 

The only hope I've got for this case now is to do with the CCA I think. Has anybody had experience with a similar CCA from MBNA ? What actually is the situation regarding original docs and why am I being told be a DJ that a copy is fine ? How can I spell it out the next time I'm in court that this CCA I have from MBNA isn't worth the paper it is written on ? Am I right in what I'm thinking here ..... does this condition 11 stated on the front page actually mean anything or is it correctly referring to a completely different document ???? So many questions ..... sorry guys !

 

Lastly, Can anybody advise what the situation is regarding court costs based upon a debt of £3k ? Surely they can't be allowed to accrue to over half the value of the initial debt ??? or can they ? Maybe they can just keep going ??? Help !!!

 

 

Thanks Guys ..... regards [a rather less upbeat] CB !

[pedross]

I don't agree CB

 

I think there is some mileage in the DN. You start counting on 11th and 14 days is 24th so the remedy date shown should be 25th as the DN states BEFORE the date shown. So it is 2 days short and does not comply with Section 88 and therefore should be all that is needed to win the case regardless of the CCA. The DN is defective and Restons had no right to take action.

 

What law speak did they use to claim that it was good for the 14 days required. The only thing they could claim was that it was served on a date between the 6th & the 8th and it would be useful if you could remember more details so that we can get opinions.

 

Where is it attached?

[Cartier-Bresson]

DN attached - CB

DN.pdf

[GamekeeperToPoacher]

Pmed

 

GK

[pedross]

Pmed

 

GK

 

Pmed what?

[GamekeeperToPoacher]

Sorry folks I thought that I had replied to C_B.

 

I PMed C_B

 

GK

[pedross]

Hi CB

 

Woodchester Lease v Swain & Co 1998 - default notices

 

The default notice has to comply with the Act and the relevant regulations (Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993). If a default notice in the proper form is not served, the action cannot proceed.

 

There are plenty of threads with all of the details and your default notice does not comply with the relevent regulations as it does not allow the correct number of days.

[fairbyblue]

Cant believe that !! Hope everything works out. Restons just plough on for summary judgement, lets hope the CCA is knackered with no section 11. Thinking of you.