Restons/MBNA Issued Court Claim **ROUND ONE TO SF**

[sunflower99]

Hi everyone

Restons have finally sent me a court form after threateing me for last month.This is my first court case so urgently need help with this please:)I am going to post up relevant documents,I have put account in dispute since July o8n MBNA sent my a alleged CCA which i beleive to be unenforceable.I will post relevant letters and documents now

[sunflower99]

on Aug 08 i sent them a CCA request

MBNA Europe Bank Ltd

PO Box 1004

Chester Business Park

Chester

CH4 9WW

 

2008

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxxxxxxxxxxxxxxx

With reference to the above agreement, I would be grateful if you would send me a copy of this credit agreement.

I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of my credit agreement on request. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

 

I understand a copy of my credit agreement should be supplied within 12 working days.

 

I understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

I look forward to hearing from you.

 

Yours faithfully

[sunflower99]

[sunflower99]

[sunflower99]

The above posts are the alleged CCAs MBNA sent me,I received them in sept 08 within a couple of weks requesting cca

Edited May 15, 2009 by sunflower99

[sunflower99]

[sunflower99]

Also got a wad of pages of more recent ts and cs in addition to the above alleged CCA! Given away by the fact that over the limit chages were stated as £12 .These lower charges were not in force when i took card out in 2002,

[sunflower99]

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

__________________

[sunflower99]

I sent the above letter in Oct 08 on the advice of car about a month after receiving alleged CCA!

[sunflower99]

[sunflower99]

I received this letter from MBNA nearly a month after sending that letter Car advised me to write disputing their alleged CCA.

[sunflower99]

I did not again communicate with MBNA about alleged unenforceable cca they sent me until near end of Feb 09' when i sent them nother letter i am posting below! I Just let them send their threatograms and ignored them!

[sunflower99]

Account In Dispute

Account No

Dear Sir/Madam

I am in receipt of your letter of the ----February 2009 I am writing to you to state that unfortunatly the documents you enclosed with letter dated --- September 2008 still has not produced any evidence that the Agreement is enforceable for the following reasons.

1.One of the documents you sent is an application form.Neither of the documents carry the correct title in the prescribed form giving the nature of the agreement as laid down by schedule 1 of the Consumer Credit (Agreements) regulations 1983.if they are considered to be be suitable as becoming Agreements once properly executed.The missing title being- Credit Card Agreement Regulated by the Consumer Credit Act 1974.

2.Agreements must contain the prescribed terms within the four corners and furthermore no where on the front is there any reference to the prescribed terms and conditions which are necessary to make this agreement enforceable.

3.There is no proof that the second page is from the same agreement .An agreement that is not properly executed and was signed before 2007 is not enforceable unless it has the debtors signature and the prescribed terms in the same document.Nowhere within regulations does it state that part of the agreement can be presented on a separate document headed terms and conditionsThe prescribed terms must be within the four corners of the agreement and as you will be aware there is a House of Lords' authority on this: Lord Justice Tuckey in the case of Wilson v Hurstanger 2007 EWCA civ 299.

.The courts powers to enforce an agreement that is not properly executed and that was entered into before 2007 are limited by section 127(3) of the Consumer Credit Act 1974.This section says that an agreement that is not properly executed can only be enforced if it consists of a single document .

a) signed by the debtor, and

b)has the prescribed terms

You are reminded that should you choose litigation as your course of action you will be required to provide the original dodcument for the Court.

 

4.I also am unable to read the information on one page of the Application form due to the utter illegibility of the copy. This in itself contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

Regulation 2 states:

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 .

 

You should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a compliant credit agreement is a very clear dispute and as such the following applies:

You may not demand any payment on the account, nor am I obliged to offer any payment to you.

You may not add further interest or charges to the account.

You may not pass the account to a third party.

You may not register any information in respect of the account with any Credit Reference Agency.

You may not issue a default notice in respect of the account.

 

If however you do still retain a copy of the original signed Agreement with all of the prescribed terms as laid down in the regulations, then I request to be allowed to view this at your offices.

So in reference to this copy of the credit agreement in which you claim it is compliant under section 78 of the consumer credit act 1974. (As I am sure you are aware, your statement is now binding under the same act-) I have concerns as to the authenticity in relation of the document which was sent with your letter dated xx Jan 2009

One of my main concerns is specifically related to the front and back parts of the agreement in question. Whilst I do not disagree these two parts may exist as separate documents my concern is that the front part of the agreement refers to a section of the back that does not exist. It is therefore reasonable under these circumstances to assume that the single document (both front and back parts) sent as the agreement is two separate documents photocopied onto 1 sheet of paper.

As the document supplied by MBNA is an important legal document I would be grateful if you could confirm that the front and back is a single document and reflects the original exactly on both sides or two separate documents photocopied onto on sheet of paper, for example to save on paper costs or postage costs which would not be considered unreasonable.

However if you still maintain that the second page with terms and conditions is indeed on back of that signed application form so they are both on same page and that you still believe you have a correctly executed enforceable agreementI think the best way way forward to resolve this matter to both our satisfaction would be for you to contact me to arrange a convienent time for me to come over to your office to view the original agreement. i would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

yours Faithfully

[sunflower99]

The above letter is the one i sent them shortly before i got DN notice in March 09.MBNA never bothered to reply to the above letter! surprise ! surprise!The next thing i knew they had set Restons on me.

Edited June 15, 2009 by sunflower99

[sunflower99]

Edited June 15, 2009 by sunflower99

[sunflower99]

Thats the DN letter posted above!i then got passed onto Restons shprtly after DN

[sunflower99]

Edited June 15, 2009 by sunflower99

[sunflower99]

Dear Sir,

 

Re :

 

THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES.

PLEASE DO NOT IGNORE.

 

I am in receipt of your letter dated (whenever, if a second class mail service was used mention it here), this was received on (whenever).

 

You have indicated that you are planning on applying for a summons in order to have a judgement entered against me.

 

I am sure that you are aware that I have long since requested from your client, under both the Consumer Credit Act 1974 (The Act) and the Data Protection Act 1998, a copy of the agreement to which both you and your client allege I am a signatory. To date this has not been provided to me and whilst I appreciate your client has endeavoured to persuade me that the provision of a copy of an application form is sufficient to discharge your client from further obligations under section 78 of the Act. Likewise I too have explained that the mere provision of a copy of an application form is not a legally permissible substitute for the provision of a true copy of the executed agreement as required under section 78 of the Act and as prescribed by Regulation 3 Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

I am sure you are also aware that under section 78(6) of the Act, whilst a creditor is in default of a request made under sub-section (1) they may not enforce the agreement.

 

Notwithstanding the foregoing and your client's persistent, unexplained and wilful refusal to supply a copy of the executed agreement in accordance with its obligations (the permitted omissions under Regulation 3(2) excepted), your client has made plain its intention to begin legal proceedings against me. In consequence this matter may now be treated as one which is subject to the control of the Civil Procedure Rules.

 

Take notice therefore that under CPR Practice Direction - Protocols paragraph 4.6(a) and (d), I request that you supply copies of the following documents:

 

[1] A true copy of the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed and

[2] Any further or subsequent notices, terms and conditions relied upon.

 

Please note that my request under the Practice Direction is not a request for production within the confines of the Act and Regulations but rather, it is for a copy of the executed agreement, including signatures and all such other notices, terms and conditions as will be relied upon in the event that your client shall begin a claim.

 

A copy of the documents I have requested should be supplied to me within 14 days and you are urged not to begin proceedings for a period of not less than 14 days following the supply of those documents to me.

 

Should your client elect to ignore my request under the Practice Direction and commence proceedings, it is likely that I shall repeat my request for the provision of documents under CPR 31.14. In the event that your client should fail to comply with my CPR 31.14 request, I will not hesitate in making an application to the court for an order that further proceedings upon the claim be stayed pending provision of the requisite documents, in the course of which application I will of course refer to this and previous requests for the provision of copy documents.

 

I look forward to hearing from you within the time stated.

 

Yours faithfully,

[sunflower99]

The above letter is the letter wrote to Restons in response!They eventually sent me exactly the same alleged CCA as MBNA already sent me!

Edited May 15, 2009 by sunflower99

[sunflower99]

April 2009

Re-MBNA Europe Bank LTD v Yourself

Account

Your Letter reference

Dear sir/madam/

I am in receipt of your response to my request under the Civil Procedure Rules under CPR Practice Direction -Protocols paragraph 4.6(a) and (d)

 

I am pleased to see that you confirm this as a true copy of the original agreement executed ,by yourselves on the 20th April 2009.

 

I must advise that I have already received a copy of this very same document from MBNA, in response to a S78 agreement made under the Consumer Credit Act 1974 and again through a Subject Access Request (Subject Acess Request)

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any (prescribed terms / signature) means that a court would be prevented from enforcing it under s127(3).

 

I have written many letters to MBNA advising that i have several major concerns about the alleged Credit Card Agreement they sent me and will be sending them a letter informing them that the document they provided to

you is still not a correctly executed agreement enforceable in a court of law.I have enclosed a copy of this letter.

 

Unless a copy of an executable agreement is supplied to me within 21 days I will consider that the above account is now closed and that you will not pursue the alleged debt.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

 

yours faithfully.

[sunflower99]

I sent Restons the above letter in repsonse to that alleged MBNA CCA they sent me!

[sunflower99]

Account In Dispute

Account No

Dear Sir/Madam

 

I am in receipt of a letter from your solicitors, Restons, dated April -- 2009. This in response to my request for a true copy of my original alleged agreement under the Civil procedure Rules -CPR Practice Direction-Proctols paragraph 4.6(a) and (d).

 

The porpose of this letter to you, is to reiterate previous correspondence from me to yourselves in that the documents Restons enclosed with their letter do not conform to the regulations and is therefore unenforceable as follows:

 

One of the documents supplied is an application form.

 

1: Neither of the documents carry the correct title in the prescribed form giving the nature of the agreement as laid down by schedule 1 of the Consumer Credit (Agreements) regulations 1983. if they are considered to be be suitable as becoming Agreements once properly executed.

The missing title being "Credit Card Agreement Regulated by the Consumer Credit Act 1974" .

 

2. Agreements must contain the prescribed terms within the four corners and furthermore no where on the front is there any reference to the prescribed terms and conditions which are necessary to make this agreement enforceable.

 

3.There is no proof that the second page is from the same agreement . An agreement that is not properly executed and was signed before 2007 is not enforceable unless it has the debtors signature and the prescribed terms in the same document. Nowhere within regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions The prescribed terms must be within the four corners of the agreement and as you will be aware there is a House of Lords' authority on this: Lord Justice Tuckey in the case of Wilson v Hurstanger 2007 EWCA civ 299.

.

The courts powers to enforce an agreement that is not properly executed and that was entered into before 2007 are limited by section 127(3) of the Consumer Credit Act 1974.This section says that an agreement that is not properly executed can only be enforced if it consists of a single document .

a) signed by the debtor, and

b)has the prescribed terms

 

You are reminded that should you choose litigation as your course of action ,you will be required to provide the original dodcument for the Court.

 

If however you do still retain a copy of the original signed Agreement with all of the prescribed terms as laid down in the regulations, then I request to be allowed to view this at your offices.

 

You persist in claiming that this copy of the alleged agreement is compliant under s 60 and s61of consumer credit act 1974 and consumer credit (Agreements) Regulations 1983. I would point out, although I am sure you are well aware, your statement is now binding under the same act

 

I have consistently advised you of my concerns about documents you have sent citing the above reasons and reiterate that those same reasons apply to those documents supplied by you to, Restons solicters.

 

It is my opion that the best way forward to resolve this matter to both our satisfation would be for you to contact me in writing to arrange a convienient time for me to visit to your office to view the alleged original agreement ,

 

This would also save court time and costs so would be in both our interests. Should you or your solictors commence legal proceedings i shall repeat my request for the provision of documents under CPR 31.14.In the event that you or your solicters should fail to comply with my CPR 31.14 request,i will not hesitiate in making an application to the court for an order that further proceeding upon the claim be stayed pending provision of the requisite documents ,in the course of which application i will of course refer to this and previous requests for the provision of copy documents.I will also be sending Restons a copy of this letter.I would appreciate your due diligence in this matter.I look forward to hearing from you in writing.

 

Yours Faithfully

[sunflower99]

I also sent MBNA the above letter and also sent a copy of this letter to Restons as well.to make it clear to them that i still had concerns about their alleged cca and to point out why!

[sunflower99]

Edited June 15, 2009 by sunflower99

[sunflower99]

Restons sent the above letter in response to my letter to them and MBNA

Edited June 15, 2009 by sunflower99