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Now Restons (MBNA/Abbey) are getting in on the act *** WON ***


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Well it wasn't much surprise when the postman delivered another claim form this time from the other Abbey Credit Card my mum had, apparently this one wasn't sold even though Abbey told us it was and Restons are acting on behalf of MBNA.

 

It appears that Abbeys response to complaints is to terminate the account and then take you to court.

 

It's the same as the other account - account fell into arrears back in 2007, arrangement was made with interest and charges frozen, payment was missed in July08 (due to having to switch banks) but double payment was made in August08 (they even sent a letter asking for payment before certain date, payment was made in time) Abbey then decided to start applying charges and interest and wouldn't take them off.

 

After various angry phonecalls a letter was sent in Jan asking them to stop phoning us and to stop the charges/interest (we continued to make payments as a goodwill gesture).

 

They asked for Budget plan we sent one and again asked for them to stop phoning after answering at least two more calls where they lied and they also don't quite understand data protection launching into a tirade against whoever answers the phone. There response to the Budget plan was to ask us to call. (According to their response to our complaint the Budget plan was rejected for not putting the names of the other creditors down)

 

We then recieved a nice letter saying they were prepared to settle the accounts but couldn't do it in writing only over the phone or through email.

 

We then recieved a letter from MBNA offering to settle but we had to call.

 

We sent a letter off to them again telling them we weren't prepared to call them, asked for confirmation of settlement details and payment details in writing and asked for statements as didn't agree with amount.

 

They treated that as a complaint and issued a default notice.

 

Their response to our complaint was the British Gas defence (automated letters) the accounts had been sold and we weren't to contact them again. (No mention of the settlement details, but we got statements).

 

At the same time we recieved a letter from Restons demanding money, we wrote to Restons informing them that Abbey had told us the account had been sold and for them to provide some proof.

 

Restons response was to say they didn't know anything about that, they didn't have any documents but they were going to court anyway.

 

We wrote back saying, hang on we'll write to abbey (who told us not to contact them) for confirmation and asked them to wait.

 

Their response was no.

 

After looking through the statements provided by Abbey it appears there are piles of charges and also some PPI that had been applied to the account, so complaint sent to Abbey asking for money back and putting the account into dispute.

 

A complaint was also lodged with the FOS regarding Abbey defaulting the account whilst 'investigating' our complaint.

 

We recieved acknowledgements from the FOS and Abbey this week regarding our complaints that are 'being looked into'

 

We then recieved the court form from Restons PoC:

 

poc.jpg

 

 

Well that is different apparently my mum entered into a contract rather than an agreement (Are they trying to get around the Consumer Credit Act?) at least they gave a date unlike CL Finance.

 

The sum they are claiming is under £1,500 I don't know where they get off demanding interest as the Default Notice didn't mention interest, and I'm sure if they don't put it on the DN they cannot have it?

 

The Account number is also the other account number, not the one that appears on the statements.

 

Anyone know which is the better letter to send to get docs off them as I understand CPR31 only allows you to get documents referenced in the PoC they have conviently not mentioned anything in the PoC.

 

Are they allowed to issue a Default Notice whilst investigating a complaint? Whilst in the intial complaint we didn't mention that we were putting the account into dispute (as we were actually asking them to provide a method to make payment) we did ask for statements so we could check they were claiming the correct amount.

 

The Default Notice like the other one is a mess - arrears appear to be made up, don't meet the minimuim payment and don't send balance below limit.

 

And the charges that have been applied to the account are more than the arrears.

 

They also submitted the court claim after we had complained to the FOS and asked Abbey for the Charges back, and on the charges letter we specificaly stated the account was in dispute and as per OFT guidelines they were to cease all activity. (Though it appears from reading other threads the FOS seem to think puting the account into dispute only applies for fraud?)

 

First I need to know which letter is the best to send to get details from Restons.

 

Then I need to know who we can report them to, as they just don't care about the law at all.

 

I was hoping for a break this week from it all :(

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CPR 18 isn't limited by what is in the claim form - I personally would do a CPR Part 18 Request

 

the claim form does not comply with the requirements in respect of consumer credit

 

Have you done the acknol of service

 

 

You are sort of right about CPR 31 - it covers disclosure generally - it is not limited to documents in the claim form - however CPR 31.14 is - Unfortunately CPR 31 only applies to Fast Track and Multi Track cases

 

The other thing is they refer to a contract - CPR 31.14 covers that

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Yes AoS was submited earlier today.

 

I fully expect Restons response to documents will be a No (From looking around they seem to reject CPR18 as it should come from the court and CPR31 as not small claim, though technically case isn't in the small claim track yet), they already refused to disclose any documents when the account was passed to them.

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If they refuse to respond to the CPR requests then you'll have to apply to the court for an order

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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Would the court mind whether it was a CPR31 or CPR18 request or not?

 

They are different things - here I'd be inclined to do a CPR 18 request

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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  • 2 weeks later...

Well just had a nice letter from Abbey, saying they don't agree with the OFT but have offered a chq for the difference between £25v£12 but haven't covered any of the interest charged, however they have decided that the PPI/C was done over the phone, they don't have a copy of the phonecall but believe their staff members don't lie/mislead and are highly trained :lol: and thus won't be refunding it.

 

They have also ignored the charges on the other sold account, at the top of the letter they have said account number Z formaly X and Y - they are now trying to say account they are suing us for relates to both accounts, so what are CLF suing us for :confused:

 

If we cash this chq do we lose any right to reclaim the other charges on this account? they did say it was a goodwill gesture not a refund.

 

Whats the best method for obtaining a full refund, considering the charges are half the balance of this account (not including interest charged) - a counterclaim or an FOS complaint? - it took the FOS over a year to get a refund of PPI on another loan - that banks response was here's your signature thus we can do what we want (that was then defaulted and terminated whilst with the FOS).

 

Would a counterclaim be admitting the debt, and just knock the balance down, or result in payment if won. (Would it stregthen our hand considering charges are over half the balance when including interest so if no charges their would have been no default).

 

How do we get the charges back on the other account, from Abbey or CL Finance?

 

Thanks.

 

EDIT: Just done a rough interest calculation (times the fees by the monthly interest rate 1.52%) the charges on their own are about £750, with interest the charges are close to £1,200! on an outstanding balance of ~£1,500.

Edited by someone_else
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  • 2 weeks later...

Ok so it's now time to go back to this case (spoke to the court on friday and they have given us an extension for the defence in the Link case, that'll be a nice surprise for them :) so that gives me time to deal with this one).

 

We need to tweak the holding/embrassed defence for this one - had no response to request for docs bar MBNA rejecting a SAR as cannot confirm ID from address.

 

So need the deny as vague bit, mention refuse to send documents.

 

Then need to get the bit about the FOS and charges complaints in, something along the lines of it is denied/unknown about random contract with MBNA but around the time CC with Abbey taken out, if claim is for that account in dispute.

 

and as regulated agreement get lost with the interest.

 

Just need to make it a little more legal sounding and get it submitted by Wednesday.

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  • 1 month later...

So we have now received the AQ (N149) from the Court, that needs to be back by the end of the week.

 

For the most part I've just copied the one we did for CL Finance, taking out the assignment bits.

 

However I was wondering if we could ask for the full comms log on the draft order? as they only provided a partial one in our SAR and never responded to our CPR request - the pages they missed are fairly important covering the date of the default, FOS complaint and charges/PPI complaint.

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This is what I have for section g (other info): (mainly the same as the one we did for cl finance just with the assignment bits taken out.)

 

The normal bit about asking for special directions.

 

This is the bit I've changed:

 

Without production of the documents that were requested from the Claimants Solicitors on XX under CPR 31.14 and again in a Subject Access Request under the Data Protection Act sent to the Claimant on X, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply...

 

Then the normal bit about Wilson v 1st County needing the agreement, small claims and no docs no case.

 

And in the draft order stuck in request for full comms log, in place of assignment info as hasn't been assigned.

 

Do we need to mention specificly why we need the full comms log?

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Well looks like we don't need to bother with that afterall, MBNA have now provided the missing parts of the comms log.

 

Anyone know how binding a SAR response is on them in court? They have stated they have provided copies of all documents on file and that automated documents are not retained (looks like Default Notices and offers to settle the account are automated letters, so they don't have a copy of the Default Notice, lets see if that stops them from fabricating one then).

 

According to them this is the agreement they will be relying upon:

 

http://i451.photobucket.com/albums/qq236/someoneelse01/restons/agreement.png

 

I've just noticed when scanning it that the reverse isn't a blank page it's a photocopy of a blank page?

 

They have confirmed they don't hold page 2 and the only T&C's they have provided are recent ones (July09 after they had already terminated the account)

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You can ask for a copy of the default notice and also proof of posting.

 

It is important that you know when the DN was dated, and how much time was allowed for the remedy.

 

Was the DN in the correct format ?

 

I dont know if the following information will help...

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents:-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The 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 an 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.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

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PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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We have a copy of the original Default Notice, there are questions with the account number and amount of arrears, the time given depends on when it was posted, I remember we received them around easter but cannot remember the exact date. (nor method of posting)

 

The only evidence they have provided so far for the Default Notice is a manual note on their comms log on the 9th April claiming it was sent on the 7th April.

 

If it was in fact sent on the 7th you'd expect their comms log to have a record of it, the comms log manages to record when notices of arrears were sent, but not a Default Notice?

 

If anyone else is dealing with MBNA and you have a copy of your comms logg can you look to see if the issuing of a Default Notice is automatically recorded, or recorded at a later date.

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  • 2 months later...

Well it's been a while, but last week we received notification from the court that the hearing will take place on the 25th November, with documents to be submitted 14 days before hand - including statements of the parties themselves. (Which means it needs to be recieved by Wednesday 11th).

 

It appears the court have just ignored our AQ/Draft order as they haven't ordered MBNA to produce any documents :( (bar what they need to include for the hearing).

 

Luckily we submitted a SAR in which they could only produce page one of the agreement and they also admitted they have supplied what they have and anything else isn't kept hold of.

 

The account is also still being investigated by the FOS - it's just been transfered to a new officer as the last one left, and it appears despite agreeing to refund the PPI on the account they in fact did not!

 

 

This is their POC

 

What they claim is the agreement

 

And The Default Notice

 

So with the POC we need to get the Interest removed as I've read around here somewhere you aren't allowed interest on regulated aggrements.

 

The agreement they have supplied seems to break every regulation regarding agreements, the terms they have supplied are from July 2009 - after the account was terminated.

 

The Default Notice on the face looks fine - however it's an Abbey Credit Card issued by MBNA, so should it not say that rather than claim to be an MBNA credit card? the account number is different to that on the statements.

 

For the DN to give 14 days it needed to be posted on 7th by First Class post - the only note of it on the comms log is a note on the 9th claiming it was sent on 7th, and no mention of 1st class post - so if it was posted on the 9th or sent second class then 14 days weren't given due to easter - I cannot find the envelope and all I remember is that we received it around easter, I have no idea if it was after easter weekend or before.

 

The arrears are also a problem - they are not the min. payment nor the over limit balance, we also have a letter from the month before claiming the arrears were ~£50 not the ~£300 claimed on the DN.

 

There's also the matter of the ~£200 unrequested PPI that makes up most of the arrears (plus the charges).

 

They also have the problem in that they defaulted the account and took the further action declared (stopping statements) in March before issuing the DN.

 

There's also the small matter of their comms log and SAR printouts showing a zero balance for the account number they are claiming under.

 

Luckily I've done most of the research for the Link case, so I have most of the regs/cases printed and bookmarked already - though I think the regs changed in May 2005?

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Has anyone got a copy of the Consumer Credit (Agreements) Regulations 1983 without the 2004 admendments? - as the admendments came into place in May 2005, the agreement is dated March 2005 - the 2004 admendment appears to have completly replaced what an agreement needs to contain.

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We have a copy of the original Default Notice, there are questions with the account number and amount of arrears, the time given depends on when it was posted, I remember we received them around easter but cannot remember the exact date. (nor method of posting)

 

The only evidence they have provided so far for the Default Notice is a manual note on their comms log on the 9th April claiming it was sent on the 7th April.

 

If it was in fact sent on the 7th you'd expect their comms log to have a record of it, the comms log manages to record when notices of arrears were sent, but not a Default Notice?

 

If anyone else is dealing with MBNA and you have a copy of your comms logg can you look to see if the issuing of a Default Notice is automatically recorded, or recorded at a later date.

 

So you didnt keep the envelope ?

 

If it was 2nd class post then that would definitely have reduced the amount of time because Easter was that week, with Good Friday on the 10th and Easter Monday on the 13th.

 

The information you want in respect of s69 interest which they are claiming is.

 

 

The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

If their POC was any vaguer, they might just as well have not bothered writing it ??

 

You might find the CCA1974 in the library in the link below.... there are 2 pages of links.

 

The Consumer Forums - Statutes

 

HTH

 

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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Also noted on the DN is they refer to paragraph 8 of the agreement.. I cant see any paragraph 8 and surely it should be "clause" 8 in any case ?

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Yes unfortantley I cannot find the envelope the DN came in - I remember keeping it, however out of the pile of envelopes we do have from Abbey/MBNA only one is the right size and it's from 2006, the only first class envelopes from MBNA/Abbey I have are the Special Del. SAR documents.

 

Thanks for the County Courts bit I found the full SI now I know what I was looking for: The County Courts (Interest on Judgment Debts) Order 1991

 

Rather Interestingly the Explantion Notes state that only judgements over £5,000 should carry interest.

 

Unfortantley the Consumer Credit (Agreements) Regulations 1983 in the Library include the 2004 Admendments that didn't come into force until May 2005, though attempting the reverse engineer the 2004 regs to the 1983 regs it looks like the Prescribed terms didn't change, just the prescribed form with the headings and information.

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Ok so we have now posted our updated statement of case/defence and all documents that we intend to rely upon - our statement stretched to over 50 pages thanks to all the letters I included which were basically we write asking them to stop phoning, they write back asking us to phone, repeat over and over...

 

Luckily I had most of the documents we needed printed out for the Link case (that we didn't need in the end) and our statement is basically a re-wording of the Link defence.

 

We explain the history of the account and the fact that when the court docs were issued the account was under investigation by both Abbey and FOS and Restons didn't want to know.

 

The agreement is a mess because there are no prescribed terms and falls foul of section 61 and 127 and is unenforceable due to the various Wilson cases.

 

The default Notice is also a mess - if they cannot prove it was posted 1st class on 7th then it didn't give 14 days, and the arrears are disputed for various reasons - conflicting amount of arrears, plus missold PPI and charges.

 

Finally the amount is wrong - their comms log and screenshots show no balance due under the account claimed, plus PPI and charges on account, PPI still being investigated by FOS.

 

It does seem a little weird us supplying a copy of the agreement and default notice to the court instead of MBNA supplying it - though it does stop them from producing altered versions.

 

 

Finally we recieved an interesting letter today from Restons marked urgent and dated Friday, but not posted until Monday (so not all that urgent, considering they have had 6months to write to us).

 

Apparently they are now keen to resolve this matter before the hearing and want to us to confirm our position, they are also now interested in the FOS complaint.

 

Well they'll see what our position is tomorrow :D and we'll see what if any documents they supply tomorrow as that is the deadline for submitting documents and statements.

 

They also rather helpfully inform us the day before documents are due that the claim is in relation to a Abbey Credit Card with an agreement dated 3rd march 2005 - the agreement MBNA supplied in the SAR response wasn't dated 3/3/05, so they have either got their date wrong are MBNA are withholding the true agreement from us.

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Yes it mainly there to show the court the full picture of the account, our arguement in the hearing will be on the agreement, default and amount, though in the Link case the judge was interested in the fact that we were in an arrangement that they broke and the fact they employed a detective agency to get a car they'd already taken.

 

The main problem is trying to anticapte what the judge is going to be like, I always feel it's better to supply information they don't care about than not supply it and need it later (within reason).

 

Though there is an interesting development in that Restons haven't bothered to send us any of the documents or witness statements they'll be using in the hearing, and the deadline for us to receive said documents was today.

 

So they are either going to be relying upon their rather vague PoC or are hoping they get a judge who is happy for them to ignore court orders.

 

So we've informed the court they didn't bother to supply any documents and see what they say/do...

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Well Restons have now supplied a bundle of documents, late I may add - so we are not going to let them get away with ignoring court orders without a fight, interestingly they didn't attach a witness statement, more to look forward to in the post?

 

The documents they supplied aren't any different than from our SAR (which was a surprise) - same partial agreement with no terms on it and seperate unlinked current T&C's, they have recreated the DN which looks the same on first glance, bar the lack of MBNAs address.

 

The only proof of postage they have supplied is the same note on the comms log claiming on the 9th it was sent on the 7th, there comms log also rather helpfully shows a zero balance remaining, whilst the statements produced make no mention of the account number they are claiming for.

 

To make matters more interesting they have shown no record of actually refunding the PPI they agreed to refund - so not only can you not trust Abbey/MBNA over the phone, you cannot even trust what they put in writing!

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perhaps you should send this to restons and point out the "high risk strategy" they embark upon if they fail to heed it's warnings

 

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless 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, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the*Civil Procedure*Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate

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