MBNA / Restons

[AA99]

The DN is dated 6th March, which is a Friday! Read on....

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/208663-tale-dodgy-dn-further.html

 

There is an exhaustive law somewhere which strictly designates the allowed number of days, with common law postage, etc, I am so relying on one with Link. I only knew it was a Sunday because it was the same date as my son's birthday

 

You really need to get your case up and running before Sept hearing, with each clause closely followed by a quoteable law, like so many caggers have said on here, the DJ can't be expected to know every single Consumer Law, and they just need discreetly pointing out, and rest your case! Step by step, sure the more professional caggers will assist you every step of the day

[Josie8]

What reason did the DJ give for accepting that MBNA had given you 14 days after deemed service? There must have been a specific argument used.

 

As for costs you are in small claims. Unless you have acted unreasonably in defending the application for SJ you would only be liable for issue and hearing fee costs together with any witness expenses. The fact the DJ has adjourned the hearing for MBNA to provide further evidence shows you did not act unresonably.

[pedross]

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 !!

 

I keep looking at this thread and something does not add up. The more I look the more I think that this is the key.

 

You must have put a good enough argument forward to get this 2 hour slot. In which case the only reason to allocate 2 hours would be because the DJ had no choice but to give you another chance to put an argument forward and they must be of the opinion that you are getting help and your next points will take time to deal with.

 

There may be issues with the CCA but at the moment I think there is more mileage in the DN. Restons must have put reasonable points forward to claim the 14 days was satisfied and from your comments you felt it was 'potentially' defective. The DJ would have no option, unless they were completely familiar with the CCA 1974 & DN's but to accept the Restons 'law speak' as you call it because on face value you had no defence to what they quoted.

 

Pedross

[Cartier-Bresson]

Hi folks - I had 3 x copies of the Woodchester Lease case with me but never felt I had the chance to refer to it. I'm not a lawyer and found it really difficult to follow what was going on in there. I need to be much more confident the next time I go in that's for sure !

 

I can't remember what the 'specific' reason Reston's brief gave for convincing the DJ that the dates were correct on the DN but he went to great lengths to spell this out and referred to the Consumer Credit Act etc. You have to understand that I have had zero experience of being in this situation and I found the whole thing extremely distressing and stressful and difficult to focus and concentrate. The DJ was asked to go over the calander day by day etc .... it was a very convincing argument and whether he is right or wrong, I still think that the way the DJ reacted to this .... they won't be happy if I start bringing this point up again. HAving said this ... the way I feel now I am going to go in there 'guns blazing' next time ... I basically have nothing to lose ! I won't be afraid of ruffling any feathers either.

 

We are talking about 'one day' for this DN being invalid and you can appreciate it would be quite easy for somebody who knows what they are doing, to browbeat me & the DJ into thinking their way of calculating this 'breach remedy timing' was correct and within the law. The DJ was convinced and did not want to go into it any further. I'm convinced that this had something to do with the fact it was approaching 4pm an a friday afternoon ... but I can't be sure of that !

 

I'm hoping the '2 hour' slot booked for the next hearing has a positive bearing on this case. I have to go in there knowing exactly what I have to say and exactly what I have to refer to literally 'word by word' ! I think I basically wasn't well enough prepared and didn't really expect to have to do much arguing, as I wrongly assumed, if all else failed I could ask for Reston's to produce the orginal copy of the CCA ... which I know they can't. It's all well and good saying that only 'the orginal copy will do' .... but you guys were not in there unfortunately ... I was .... and the DJ said to me that this was NOT required. I did note down the specific terms used here ... they were :

 

"There was no requirement in law for the original copy to be produced. If the claimants WS confirmed that what was presented was a 'True copy thereof', then a copy of the executed agreement would suffice."

 

Now I don't agree with this for many reasons and I actually think it is a requirement in law to have the original copy presented in court. But I need to put together a completely fool proof argument to get this across to the the DJ without them feeling like I'm telling them their job and correcting them. How I do this I'm yet to establish ...but hopefully you guys will be able to help me with that. Somebody suggested a mock up of the Brief's driving licence done in photoshop including a series of DR10's .... not sure if this would go down too well !

 

If Restons can't provide them with a reason regarding Condition 11 in the next two weeks then I guess all this won't be a problem ... as I'd assume their app for SJ would be dismissed .... like it already should have been last friday !

 

I also have to assume that Reston's brief will be reading this as I understand that he has already admitted to doing this in court through a different case. [Hi ... if you are ... you certainly have the upper hand being able to read all this !]

 

Let me know how I should handle this next hearing .... I'll need to prepare a better crib sheet next time I think ! Maybe details should be PM'ed to me, in light of prying eyes .... then they can be uploaded after the event ?? Just a thought.

 

cheers > CB

[guzzleguts]

Hi CB

 

Sorry your day in court did not go well, i will be in court myself in 2 weeks.

 

I feel you have to push both issues home with the judge, the DN is invalid 1 day or 5 days makes no odds regulations should should be upheld.

 

The credit agreement needs to have the prescribed terms within the document, i believe your is the same as mine, they would need to produce the original to prove that, surely two pieces of paper do not prove that.

 

I hope PT or one of the more experienced advise you on this and tear their argument to shreds.

 

GG

[sunflower99]

Hi CartierBresson

You sound like you did extremly well in the circumnstances and can be proud of yourself that you as a LIP and no legal qualifications stood up to them and got that difficult DJ to adjourn it to another date.We are all rooting for you and the issue about Restons/MBNA trying to get away with Microfilch copies and not having one is a problem that faces us all trying to win in our war aginst MBNA as it has just been confirmed on my thread that MBNA do shred originals which in their own words is to protect customers security ! Right! So its not because they trying to save on filing space and that most of their so called agreements are useless and not correctly executed or enforceable! i will be having to offer exactly the same arguments as you in court when they try to rely on a scanned micrfilch copy! Well done though for not giving up and letting these beggers walk all over you.As i said beore any victory a cagger has against these people is not just a victory for themselves but a victory for all us Reston victims and will hopefully make them thing twice before dragging any more future potential victims into a court room! So CB i am proud of you too and shows that even if MBNA think us ordinary legally unqualifioed LIP caggers are easy prey they are now being proved wrong! You scored a victory for me and other Reston victims when you walked in that court room on friday !

[Cartier-Bresson]

Thanks for all support Sunflower / GG .... I'm hoping next hearing goes slightly better !

[sunflower99]

Hi CB

I am sure you will countinue to give em grief in that courtroom! We are all rooting for you and as GG said you are sure to get some help from some of the legal bods about what to do next! and how to tear these arguments to shreds!

[citizenB]

CB, Please read BRW's informative post regarding court tactics.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2171582.html

 

Hello Mr H!

 

Quick Links for you:

 

The Consumer Credit Act 1974

 

The Consumer Credit Act 2006

 

On a very basic documentation level, one issue to be well prepared for is the question of your Defence Bundle.

 

The Empty Desk Trick

 

Some Courts and some Judges have an amazing ability to deny ever having received any documents before the Hearing.

 

So, expect the Judge to be sitting there with an evil smile and an empty desk, eyeing up your Court Bundle on the desk in front of you! So, make sure you take extra copies of all key documents, i.e. two extra Court Bundles.

 

It will be a PITA I know, but the ideal is to take three sets of everything, such as your Defence, plus anything else that you submitted to the Court and/or the opposition that was mentioned in your Defence and/or Disclosure by List.

 

Then, when the Judge and/or the enemy say, I do not have that, you will be ready to say, no problemo, open up your big bag and say, here's a second copy I prepared just in case the Court System had misplaced the copies I have already submitted.

 

IOW, whatever you want to have in front of you, make sure you have 2 extra copies of each item, so that you will not be left without the documents you need.

 

This appears to be a little trick that some Judges like to play, and will expect you to hand them your copy, either deliberately, or because they really are duffers who can't get themselves organised and/or have a useless Court system behind them who cannot get the documents you have already submitted to the Hearing.

 

In effect, this is a strategy to throw the Litigant in Person off balance. On the day it will look all tidy and genuine, but if you don't take copies, the net effect could be that you are sitting in front of an empty desk, having been deprived of your Court Bundle and needing to defend yourself just from memory.

 

Assuming that you can find the time and money to reel off 2 extra copies, then the next step is to make sure your own master copy is completely familiar to you. Practice what you may need to say, and try going to the document that you need in your Bundle to back that up. If it takes you 60 seconds when at home, it will feel like 60 minutes in Court...with a Judge tapping his/her finger on the bench and making huffing noises.

 

So, use Post-It Notes or Tabs, page numbers, anything to help you find what you need fast, so you can quote the part you need. Make sure the copies you make for the enemy have matching page numbers to your own Bundle, but there's no need to make their copies as easy to navigate as your own. Indeed, make theirs harder to navigate, perhaps by making the page numbers very small and feint (see below)...

 

IOW, if you think you will need to quote s127(3), have a Tab sticking out of your Bundle that says 127(3). So you can flick straight to it, and then tell Judge/Enemy that the document is on Bundle Page 156.

 

While they are flicking through to find Page 156, you'll have time to read what s127(3) says, so you are ready to read it out to the Court. Perhaps use a Yellow Highlighter to put a box around any key issues on the actual page so you won't need to waste time reading through a page of Text but can zoom straight to the Paragraph you need.

 

The point being, plan ahead to buy yourself as much time in Court as you can.

Make Notes and Plan your Responses

 

Next tip is when the enemy are droning on, make detailed notes of what they are saying, and put a big circle and number around anything they say that you do not agree with. Then, when they have finished speaking, if you did not understand anything, make them repeat it, and add extra notes.

 

Then, you should end up with some notes with big circles all numbered ready to trot out your counter arguments:

 

(1) The Agreement...I disagree that the Application Form they have produced represents an Agreement, because it is missing the Prescribed Terms, it's just an Application Form, the terms they say were on the back, are clearly not a copy of the back, and would not fit on the back Sir/Madam.

 

(2) Without the Prescribed Terms, the Court cannot enforce, see s61(1)(a), s65 and s127(3)...

 

...when Judge asks: "s127(3)?"

 

...you can whizz straight to that via your little tab, and say, that's on Page 156 Sir/Madam.

 

...when the Judge says: "but wasn't s127(3) repealed?"

 

...you can say no, if you look at the bottom of page 189 in relation to Schedule 3 of The Consumer Credit Act 2006, you will see that s127(3) still applies for Agreements made before 06/04/2007. The alleged Agreement is covered by The Consumer Credit Act 1974, so s127(3) remains in force.

 

If you see what I'm getting at?

 

The key is to have all the bumf you need, and have it so you can go straight to what you want.

 

What Did He Say...?

 

Don't let anything go over your head. If the enemy starts speaking in a language that only they and the Judge seem able to understand, then stop them, and say you do not know what is being said, could the enemy please slow down and explain things in layman's terms, please, as I am a Litigant in Person. Keep saying that if needed, to make sure Judge remembers that you are not a trained Barrister.

 

Keep making notes when not speaking yourself, and don't be shy about standing up for yourself and demanding a right to respond to any points that you disagree with. Your notes being to help you frame what you want to say when you get that chance.

 

If you get a decent and fair Judge, then the Hearing will be well conducted and all of the above will work in your favour.

 

If you get a biased and hostile Judge, then all of the above will help you to keep control and get your key points across, if only for the Tape and a future Appeal.

 

A Barrister will not be phased by any tricks, and it's likely that a biased Judge won't try so many on when faced with someone trained and experienced with how the Court System works.

 

However, there's no reason why you can't hack this as a Litigant in Person, but things can get tough if you lose the Judge Lottery and get a duffer Judge or a biased Judge. That's when preparation and planning may save the day.

 

I hope this helps.

 

Cheers,

BRW

[citizenB]

Ok, Default Notice.

 

Dated 6th March, a Friday. Remedy date is the 23d March.

 

The regs state that there should be 14 CLEAR days for remedy.

 

IF the letter was actually posted on 6th, then according to this....

 

Interpretation of working/ business days

 

and this

 

Time-limit for responding - Ministry of Justice

 

What are working days?

 

'Working days' are all days except Saturdays and Sundays, Christmas Day, Good Friday, and Bank Holidays anywhere in the UK, as set out in the Banking and Financial Services Act 1971.

 

 

Then Saturday and Sunday cannot be included. Then the deemed service date would have been the Tuesday, 10th March 2009. This leaves just 13 days, however the notice suggests that you need to remedy BEFORE the 23rd which leaves at the most 12 days.

 

The regs also say that unless proved to the contrary that 1st class post is used then it will be deemed to have been sent 2nd class post. Can they prove that this was sent by 1st class mail.

 

I am pretty certain that all of MBNA's post is sent using Royal Mail Business postal service. They very rarely if ever use the convential post where a letter is date stamped. There is a bar code on this type of mail. BRW has been working frantically to get this decoded but so far Royal Mail arent being very co-poperative. He is convinced that the code will provide the answer to this question of when mail was in fact posted.

 

So you will need to ask for proof that it was actuall sent out on the Friday in time for that day's postal service and that it was sent 1st class.

 

I am sure I have seen a comment by surfaceagentx20.. where he says..

 

The rules are pretty clear, if Parliament had meant 13 days they would have put 13 days. They didnt, they said 14 and that is what you should be allowed.

[Cartier-Bresson]

Hi CitB .... That last post with BRW's quote was excellent ! It basically explains everything I should have done and didn't ! I'm still totally shocked that the DJ took my copy of my WS ! Retrospectively, I think this totally wrong footed me for the whole hearing. I can't believe I didn't make an additional copy of this document ..... it seems so obvious now !

 

The points I did make in there seemed to be answered by quite complex statements and references that I didn't really understand and didn't feel confident or experienced enough to question at the time. This won't happen next time. I was far too timid in there for fear of upsetting the DJ .... who I think was probably already annoyed anyway !

 

I will gather myself together and get my arguments organised and straight for round 2.

 

Thanks for all help - CB

[citizenB]

Yep, BRW gets straight to the heart of the matter.

 

One good thing to come out of this is that you now know what you are going to be up against and you can prepare better.

 

Lots of post it notes or a list of questions you must ensure you get answered.. points you need to get across.

[GamekeeperToPoacher]

I feel that this thread is proving to be a learning curve for us all.

Everyone should bookmark this especially BRT's post courtesy of CitB.

 

C-B you did a remarkable job under the circumstances and I only hope that I will be able to keep my cool when I face my judge in a couple of weeks time.

 

GK

[citizenB]

I dont know whether this latest post by BRW on zhanzibar's thread will be of any use.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2383258.html

 

But I have linked you to it anyway

[supasnooper]

Just to add citizenB's post on how MBNA post their DN's.

 

At the moment, on the site, we are seeing that MBNA are sending out their Default Notices using UKMail delivery, which when investigated on UKMail's website specifies a 3 day delivery timescale.

Fortunately for defendants, this service is not deemed a 1st Class mail service and is classed as a 2nd class service; thus any letter using this service is deemed served after 4 days.

[pedross]

Hi CB

 

The DN is defective which has been said several times and Restons brief claims that it is not defective. The DJ accepted the argument put forward and counted the days to be satisfied that it was in fact correct.

 

I believe that I know what has happened with the DN and what needs to be done. I can explain my point on this thread or I can PM you with the information if you do not want Restons to read it. However, I expect someone else will come along and make the point anyway.

 

I think I need to get permission from the site team to start sending PM's with advice but I am not sure how it works.

 

Pedross

[guzzleguts]

HI pedross

 

Please pm me with that.

 

Thanks

 

GG

[Cartier-Bresson]

Hi Pedross

 

I would definitely appreciate the PM'ed advice if this is allowed for the time being. In light of my current situation regarding this particular case, I'm sure that we might be allowed to go down this route prior to the adjourned hearing.

 

The emphasis for me now is to ensure I take back the initiative with this case and I assume that declaring my hand in full view of the world, would not help my cause.

 

I don't know what the procedure is for this either, but I would say that if allowed, I would definitely post the details of anything of use in retropect to the hearing.

 

Any advice on this ?

 

Cheers > CB

[Cartier-Bresson]

Can people please check the below argument relating to my CCA for accuracy. I intend to take this into court with me and read it out directly to the DJ so there is absolutley no confusion whatsoever. Also, could we try to consider possible responses from both the DJ and Reston's to this statement so as i can prepare for every potential angle prior to going in.

I'd also like to prepare something similar for the DN issues if possible, so if somebody can get me started with this ????

Also - should I revise my WS in response to the claimants late re-drafted WS sent to me 2 days before my first hearing ? Another comment I have remembered that the DJ made about my WS, was that it was felt I had 'thrown the kitchen sink' at this .... shame they never bothered to read it then !

Cheers folks > CB

Argument against CCA provided by MBNA

Sir / Madam …..

Exhibit xxx shows what has been referred to in the claimant’s Witness Statement dated 18th August 2009 as ‘a true copy of the records maintained on the Claimant’s Microfiche’ is actually just a copy of the front page of the credit card application form signed by the defendant on 27th December 2001.

This document does not represent an ‘agreement’ as it does not contain the prescribed terms required as stated in Section 60 of the Consumer Credit Act 1974, which clearly state:

Section 60 - Form and Content of Agreement

[1] The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreement, and the regulations shall contain such proviosions as appear to him appropriate with a view ensuring that the debtor or hirer is made aware of:

A] The rights and duties conferred or imposed on him by the agreement

B] The amount and rate of the total charge for credit [in the case of a consuer credit agreement]

C] The protection and remedies available to him under this act

D] Any other matter which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

The document provided by the claimant is simply the front copy of an application form. The second page of this document entitled ‘Financial and Related Conditions’ is clearly not a correct copy of the back of this document as it does not relate in anyway to the front application form as discussed with the mention of Condition 11 [the use, recording or disclosure of Personal Information] referred to under ‘Principal Card Holders Request & Declaration’. [Condition 11 on the back copy relates to Increased Interest Rates]

Without the prescribed terms [as mentioned above] being included within the four corners of the signed agreement, the court cannot enforce this document as a valid consumer credit agreement as per Section 61 [1] [a] of the said act:

Section 61 - Signing of Agreement

[1] A regulated agreement is not properly executed unless:

[A] A document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60 [1] is signed in the prescribed manner by both the debtor or hirer and by or on behalf of the creditor or owner,

Could I therefore request that the court insists upon seeing the ‘original copy’ of this presented agreement from the Claimant, as proof that it exists in the manner with which the Claimant refers to in the Witness Statement dated 18th August 2009.

Can the court also confirm that this extremely important point in itself should be enough for the claimant’s application for Summary Judgment to be struck out with immediate effect and the case go to trial forthwith.

[citizenB]

This might also be of use to you, CB. Provided by Pal Walton on another thread.

 

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2384636.html

 

 

I'd print off the document below and produce it in court.

 

 

 

Paul

 

 

 

It is proof tht "recreation of documents" does happen.

[citizenB]

In answer to your question, yes, you should be able to redraft / amend your Witness statement in order to counter their late submission.

[pedross]

Hi CB this is what I believe may have happened:

The bottom line is that they convinced the DJ that the DN was valid and the only way they could do that is if they could prove it was served by the 8th. They might have just ignored the fact it was posted on a Friday and counted 2 days + 14 days however I doubt it and the CCA 1974 is clear on what it means by ‘serve’

189. (l) In this Act, unless the context otherwise requires—

“ serve on “ means deliver or send by post to;

There is already a Practice Direction regarding Service of Documents - First and Second Class Mail which you are familiar with and which makes it defective. Therefore, in my opinion, to make it valid the Reston’s brief must have used Section 69 CCA 1974 (7) and claimed that it was served when it was posted. He would have claimed that if it was intended to be the case in this section it would be the case in other sections too.

69.—(1) If within the period specified in section 68 the debtor or hirer under a

cancellable agreement serves on—

(a) the creditor or owner, or

(b) the person specified in the notice under section 64(1), or

© a person who (whether by virtue of subsection (6) or otherwise) is the agent of

the creditor or owner, a notice (a " notice of cancellation ") which, however expressed and whether or not conforming to the notice given under section 64(1), indicates the intention of the debtor or hirer to withdraw from the agreement, the notice shall operate—etc etc………

(7) Whether or not it is actually received by him, a notice of cancellation sent by post to a person shall be deemed to be served on him at the time of posting.

Therefore, the date of service is the date it was posted, a good argument. However, the CCA is an act for the protection of consumers and s189 states the meaning of ‘serve on’ unless the context otherwise requires. In s69 because the act is to protect consumers I believe there is a requirement to vary the meaning of ‘serve on’ in case a large corporation does not receive the cancelation notice in the correct department or does not act on it straight away and as it is an important notice from the debtor different rules are appropriate. Therefore, s69 (7) would not apply to a notice from a creditor regarding a completely different matter and the DN is therefore defective.

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 is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society '1996' 4 All ER 119

To sum up, in this Act, (CCA 1974) unless the context otherwise requires, the normal service by post timescales would determine when it was served. However, with further regard to consumer protection cancelation notices from the debtor require otherwise.

Pedross

[supasnooper]

Hi CB this is what I believe may have happened:

 

The bottom line is that they convinced the DJ that the DN was valid and the only way they could do that is if they could prove it was served by the 8th. They might have just ignored the fact it was posted on a Friday and counted 2 days + 14 days however I doubt it and the CCA 1974 is clear on what it means by ‘serve’

 

189. (l) In this Act, unless the context otherwise requires—

 

“ serve on “ means deliver or send by post to;

 

There is already a Practice Direction regarding Service of Documents - First and Second Class Mail which you are familiar with and which makes it defective. Therefore, in my opinion, to make it valid the Reston’s brief must have used Section 69 CCA 1974 (7) and claimed that it was served when it was posted. He would have claimed that if it was intended to be the case in this section it would be the case in other sections too.

 

69.—(1) If within the period specified in section 68 the debtor or hirer under a

cancellable agreement serves on—

(a) the creditor or owner, or

(b) the person specified in the notice under section 64(1), or

© a person who (whether by virtue of subsection (6) or otherwise) is the agent of

the creditor or owner, a notice (a " notice of cancellation ") which, however expressed and whether or not conforming to the notice given under section 64(1), indicates the intention of the debtor or hirer to withdraw from the agreement, the notice shall operate—etc etc………

 

(7) Whether or not it is actually received by him, a notice of cancellation sent by post to a person shall be deemed to be served on him at the time of posting.

 

Therefore, the date of service is the date it was posted, a good argument. However, the CCA is an act for the protection of consumers and s189 states the meaning of ‘serve on’ unless the context otherwise requires. In s69 because the act is to protect consumers I believe there is a requirement to vary the meaning of ‘serve on’ in case a large corporation does not receive the cancelation notice in the correct department or does not act on it straight away and as it is an important notice from the debtor different rules are appropriate. Therefore, s69 (7) would not apply to a notice from a creditor regarding a completely different matter and the DN is therefore defective.

 

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 is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society '1996' 4 All ER 119

 

To sum up, in this Act, (CCA 1974) unless the context otherwise requires, the normal service by post timescales would determine when it was served. However, with further regard to consumer protection cancelation notices from the debtor require otherwise.

 

 

Pedross

 

Some excellent points to be noted - and very well made.

[pedross]

Some excellent points to be noted - and very well made.

 

Thank you, much appreciated.

[sunflower99]

Just popping on to see how you doing Cartier B! That post looks great about disputing your microfilch copy ! That was awful that a DJ trying to allow Restons to get away with that:mad: and glad you fighting them back.No justice that they atempt to allow microfilch copies with the advent of photo shop especially as the crux of the matter is the way the agreement is arranged in displaying the prescribed terms .