Restons and MBNA and County Court Papers

[supasnooper]

You may wish to have a look at this post, as it clearly defines MBNA's position as to "Charging Off" an account which appears in the Customer Information Systems printouts.

 

img011.jpg picture by paulbaxter009 - Photobucket

[booda31]

You may wish to have a look at this post, as it clearly defines MBNA's position as to "Charging Off" an account which appears in the Customer Information Systems printouts.

 

img011.jpg picture by paulbaxter009 - Photobucket

 

Thanks,

 

Going to call the court first thing.

 

I never heard of charging off, is it a kind of admittance they can't go any futher, and then you start the battle all over again with the 3rd party?

 

[foolishgirl]

 

I never heard of charging off, is it a kind of admittance they can't go any futher, and then you start the battle all over again with the 3rd party?

 

 

Got it in one booda

[Mydogsawestie]

Hi booda31 just popping on in to say hello, have had these 2 on my back and noticed you seem to be heading the same route that I have been doing since Feb this year.

 

Like others & yourself have mentioned, SJ application is usually the next trick they perform. My thread should you ever want to take a look is at http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-court-papers-help-required.html My day in court was in July so I hope it proves useful some of the info I got too going forward....keep positive and with foolishgirl & supasnooper onboard, you wont go wrong

[booda31]

Thanks mate, will be reading through your thread very carefully, cheers for link.

 

I called the court today, and they say they had just been someone working on it, and that it is to be listed as a hearing in a few weeks, no SJ mentioned so either not applied for or thrown out?

 

First feelings are of fear and anxiety, going to court!

 

I am assuming this is better than having to face a SJ, and that burdens of proof are all with them (mbna) for this heaing.

 

There has been no response to any CPR requests, only copies and reconstructed dn's forwarded.

 

Can updated terms and conditions apply, if they are updated way past any termination date, its seems to be the case on the sars req.

 

Thanks for all the kind support, well appreciated.

[foolishgirl]

 

First feelings are of fear and anxiety, going to court!

 

First time for anything is always daunting, second time is much easier but there is really nothing to be scared about. However you must tbe absolutely sure of your facts & the legal reasons you are disputing the claim so that a wily sol. will not throw you off course. You may also have to 'educate' a DJ on the CCA1974 so be prepared with copies of all the relevant acts, judgments etc that you may want to refer to. I always take my laptop with everything on it in pdf form & then if you really need something that you don't have a hard copy of, it's there.

I am assuming this is better than having to face a SJ, and that burdens of proof are all with them (mbna) for this heaing.

 

An SJ hearing is no worse than offering your defence at a hearing, it's just that you are not usually given much time to prepare. If you did receive notice of an SJ applic. you would really just present a crux defence pointing out why the SJ applic. should fail.

There has been no response to any CPR requests, only copies and reconstructed dn's forwarded.

 

Well, your defence should be pretty easy then

Can updated terms and conditions apply, if they are updated way past any termination date, its seems to be the case on the sars req.

 

No, absolutely not! The T&Cs at the time formed part of the agreement you signed up to - you may not have signed up to current T&Cs had you known them ;-). If they are claiming the prescribed terms are included in the T&Cs, all the more reason to reject current terms!

 

 

When you get your hearing date, post up for more help booda. The court may require a witness statement & docs. submitted before the hearing date.

[booda31]

Hello,

 

Got the SJ hearing papers, and am daunted a bit. So gonna read through some other threads that were at this stage again, and again.

 

I have attached link to copies of everything they have sent me, and would really appreciate some help and advice on how I respond.

 

I need to get this in 7 days before the hearing, they dont give much time.

 

Thanks so much

 

 

 

 

 

 

 

 

 

 

[booda31]

And here is the dn, it is reffered to as a copy, and previously as reconstructed.

 

 

I do not remember receiving this at all. Have gone through all my papers and have not seen it.

 

[booda31]

I think I have come across a big boo boo from the bullies, I hope so anyways, dont really want to say anything just yet, may be red herring

[foolishgirl]

 

I do not remember receiving this at all. Have gone through all my papers and have not seen it.

 

 

I think I have come across a big boo boo from the bullies, I hope so anyways, dont really want to say anything just yet, may be red herring

 

Looks as though the lack of DN could be another big boo-boo too booda.

 

Anyway before tackling that one, first of all booda, did this notice come direct from the court or from Restons? Have you got a hearing date?

 

If it wasn't from the court, it could just be a Restons [problem].

 

If it was from the court you have to submit a witness statement & also follow it up at the hearing with the reasons why you think you have a credible defence (& that would include proof of mailing an effective DN!)

 

BTW did you not add a statement of truth to your defence submission?

If you didn't, you may need to submit an amended defence to deal with that issue but let's see how to deflect the SJ first.

 

To help you with compiling a WS look at this thread - it's similar to your own:

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/170484-fairbyblue-mbna-restons-court-11.html

 

Also, what date was the credit agreement signed - before or after 6 April 2007?

Edited October 24, 2009 by foolishgirl
addition

[booda31]

Hi there FG

 

Its come from the court and hearing date about 3 weeks away.

 

There was no signature, just tick in box, and dated after 06/04/07

 

Thanks for the link, will get onto it.

 

Thanks

[foolishgirl]

IMO the main points of your WS will be that:

 

1. The agreement was taken out online & you require proof that it was you that applied eg. screen shots, proof of your ISP etc. in line with BSI BSP 0008:

Document Management, Document Imaging, Document Scanning | Archival

 

particularly note:

The issue of Legal Admissibility is at the core of records management principles. An organisation needs to be able to prove (to a court of law or some other statutory body) that the contents of a particular document or data file created or existing within an Electronic Document Management System have not changed since the time of storage. If the data file is an electronically stored image of an original paper document, an organisation must be able to prove that the electronic image is a true representation of the original. Proving the authenticity of electronically stored documents is crucial to their admissibility in a court.

 

Providing current T&Cs & a reconstructed copy of an agreement does not IMO comply!

 

2. Proof of posting of DN. You haven't received it & the claimant cannot be proved that it was ever actually posted without material proof. If it cannot be proved by the claimant, S87 & S88 has not been complied with & claim fails.

 

3. Have they sent you statements? Do they include any unlawful charges. If so, the DN & also the POC will therefore be incorrect. Defective DN? They are only entitled to the arrears as of the date of the DN - that's providing they can prove they sent it

 

4. They also can't claim stat. interest on a CCA claim. Think your defence gives the ref.

 

You will need to be ready to quote all the precedent judgments in connection with the above. If you need links, shout...

 

You may find this BRW's post 315 & links here v. useful:

http://www.consumeractiongroup.co.uk/forum/legal-issues/199523-restons-mbna-issued-court-16.html

 

 

 

And guess what, it was MBNA/Restons again!

[booda31]

Hello,

 

Have been working on my WS, and have included what I have got to so far below.

 

Many thanks to FairyBlue whose thread and draft WS I have used a lot, kindly pointed out by FG.

 

Here goes:

 

1st Witness Statement of XXXXX

Dated:xxxxxxx

In the Xxxxxxxxx County Court

Claim Number: XXXXXXXX

 

 

 

Between:

MBNA Europe Bank Limited (Claimant)

-And-

XXXXXX (Defendant)

_________________________

1st WITNESS STATEMENT OF

XXXXXX

_________________________

1. I, XXXXX of XX Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, XXX XXX, being the Defendant, am a litigant in person in this case.

2. I make this Witness Statement in support of my defence against the Claimants claim against me.

3. I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

4. In this statement I will refer to facts relating to the claimant regarding their failure to follow recognised procedures, practices and protocols during their prosecution of this case and their failure to respond to my lawful requests.

5. It is accepted that I had use of a credit card supplied by the claimant at the material times, but in August 2008, due to changes in my financial circumstances, I was unable to make the minimum payments requested on the monthly statements received by me from MBNA Europe Bank Limited. This led to MBNA making a series of telephone calls to me enquiring as to why the payments had not been made.

6. During these telephone calls I had explained to MBNA Europe Bank Limited about the change in my financial circumstances and that I was unable to make the payments which they were requesting. I tried to negotiate with them to get them to accept reduced payments but they were unwilling to accept my offer of £10.00 per month.

6.1 The amount which I could realistically afford to pay per month was calculated by subtracting me and my families basic living expenditure from my income and dividing the remainder between all my creditors on a pro-rata basis. I also submitted an Income and Expenditure form to the claimant.

6.2 I made to the claimant a full and final settlement offer that although I could not afford myself, I would have looked to family to assist if the offer was accepted. The offer was rejected.

7. On the 17 November 2008 I made a S77/S78 request to the claimant, the claimant responded on the 15 December 2008 enclosing ‘ a copy of the credit card agreement, including applicable terms and conditions, and statement of account’.

7.1 Within their response was a letter dated 08 December 2008 advising me to find enclosed a copy of my current terms and conditions. The letter was signed by Sean Humphreys, Director of Satisfaction MBNA.

8 The claimants solicitors served upon me County Court Claim papers, which were issue on 24 July 2009.

8.1 No Letter Before Action was served or received, the Claimant acted in contravention of the Civil Procedure Rules, Part 1 the Overriding Objective, and Practice Direction the Pre Action Protocols paragraph 4.3

9. I tried to obtain legal advice on how I should proceed with my response to the Claimants claim, but as I had no available funds to pay for a solicitor, the only other option of which I was aware was the Citizens Advice Bureau. However due to my local Citizens Advice Bureau being under great pressure at the time due to the number of people they are trying to help, and the fact that appointments are only available on two days each week, I could not get an early appointment.

10. I acknowledged the Claim online via the MCOL website before the 14 day deadline and stated that I wished to defend the claim. I was then in a quandary as to how to defend the claim.

11. At the point where my defence was required I was not in possession of documents from the Claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The Claimant failed to include the written agreement, which formed the basis of this claim in accordance with part 16 and Practice Direction 16 of the Civil Procedure Rules.

12. Because the Claimants Particulars of Claim were vague and insufficiently particularised and therefore did not provide me with the information which I needed to prepare a fully particularised defence, I was only able to enter a very vague defence, but stating that I had requested documents from the Claimant, and reserving the right amend my defence at a later date if the Claimant produced the aforementioned documents.

13. I have never been served with or received a Default Notice from the claimant as they claim to have done.

13.1 I request the claimant be put to strict proof the Default Notice was served

13.2 The sending of a Default Notice, by first class post, in which reconstructed copies of which are later relied upon in court, can not be deemed as received or served, unless it was specifically sent by a recorded or registered method.

14. The reconstructed copies of the Default Notice allegedley served upon me on 21 October 2008, received from the claimant and their solicitors, show balance in default which include unlawful charges applied to the account which would in any case would deem the Default Notice defective.

14.1 The reconstructed Default Notice also states clearly that if the required action is not taken by the 07 November 2008 then the claimant may terminate the account.

14.2 For the avoidance of doubt the word ‘may’ in this instance is synonymous to ‘shall’, the claimant would have terminated the account on 08 November 2008.

14.3 The claimant seeks to rely on terms and conditons which proceed the termination date, the latest letter received from the claimant containing terms and conditions being dated 23 September 2009.

15. The claimant seeks to rely upon a copy of a credit card agreement that was allegedly agreed to by myself

15.1 The copy of the credit card agreement the claimant seeks to rely on has a 15 digit reference number at the top which I have no knowledge of what this is, this reference number appears in no other documentation the claimant is relying upon.

16. The copy of the credit card agreement is one which has a tick in the box representing both my signature and that of the claimant.

16.1 Electronic agreements needs to comply with British Standards Institute BSP 0008

16.2 An organisation needs to be able to prove (to a court of law or some other statutory body) that the contents of a particular document or data file created or existing within an Electronic Document Management System have not changed since the time of storage. If the data file is an electronically stored image of an original paper document, an organisation must be able to prove that the electronic image is a true representation of the original. Proving the authenticity of electronically stored documents is crucial to their admissibility in a court.

16.3 The current terms and conditions and reconstructed copies of credit card agreements and notices supplied by the claimant does not comply with the procedures and protocols set out in BSI BSP 0008.

 

Thats as far as I have got, any comments, suggestions and advice will be gratefully apreciated, if its going in the right direction.

 

Thanks : )

[supasnooper]

wrong thread

Edited October 30, 2009 by supasnooper
wrong thread

[foolishgirl]

IMO it's contains a little too many personal details/explanations. You need to address the issues raised in the SJ application - at this stage the court will not really be interested in your personal financial circumstances.

 

Suggested below:

 

 

Claim Number: XXXXXXXX

 

 

 

Between:

MBNA Europe Bank Limited (Claimant)

-And-

XXXXXX (Defendant)

 

_________________________

WITNESS STATEMENT OF

XXXXXX

_________________________

 

1. I, Booda, am the Defendant in this action & a litigant in person in this case.

 

2. I make the following statement as my witness statement in support of my defence to the claim made by xxxxx & from information and facts within my own knowledge and which I believe to be true.

 

 

3. On 24 July 2009 the claimants solicitors issued a County Court summons in respect of a claim for £xxxx which they claimed was the balance outstanding on a credit agreement.

4.No Letter Before Action was served or received by me prior to receipt of this summons & I averr that the Claimant acted in contravention of the Civil Procedure Rules, Part 1 the Overriding Objective, and Practice Direction the Pre Action Protocols paragraph 4.3

5.As the Particulars of Claim state that I entered into a credit agreement with claimant, I requested that the Claimant provide me with a copy of such, also any default notices issued & a statement of account indicating how the sum of this claim had been calculated. This was done under CPR Part 18 xxx & under CPR31.14 on xxx. (Exhibit xxx & xxx)

 

6. At the time where my defence was required to be submitted to court I was not in possession of documents from the Claimant, which were vital to my ability to defend this action and placed me at a distinct disadvantage. The Claimant had not included the written agreement with his claim which formed the basis of this claim in accordance with Practice Direction 16 of the Civil Procedure Rules.

 

7. Because the Claimants Particulars of Claim were vague and insufficiently particularised and did not provide me with the information which I needed to prepare a fully particularised defence, I therefore submitted a defence reserving the right amend my defence at a later date if the Claimant produced the aforementioned documents.

 

On xxxx I received the documents marked marked Exhibit xxx, xxx etc...from the Claimant

 

8. I would now draw the court's attention to the following facts:

 

9. The Agreement

 

9.1 The copy of the credit card agreement the claimant seeks to rely on has a 15 digit reference number at the top of which I have no knowledge. This reference number appears in no other documentation the claimant is relying upon.

9.2 The document presented as Exhibit xxx appears to have been an agreement submitted online i.e. one which has a tick in the box representing both the applicant's signature and that of the claimant.

I have not received evidence from the claimant that this was indeed an agreement that I was responsible for initiating & I put the claimant to strict proof of such.

 

An organisation needs to be able to prove (to a court of law or some other statutory body) that the contents of a particular document or data file created or existing within an Electronic Document Management System have not changed since the time of storage. If the data file is an electronically stored image of an original paper document, an organisation must be able to prove that the electronic image is a true representation of the original. Proving the authenticity of electronically stored documents is crucial to their admissibility in a court.

I would averr that the current terms and conditions and reconstructed copies of credit card agreements and notices supplied by the claimant do not comply with the procedures and protocols set out in BSI BSP 0008.

 

10. The Default Notice

10.1. I deny that I have ever been served with or received a Default Notice from the claimant.

 

10.2 On xxx (Exhibitxxx) I requested that the claimant prove by way of material evidence that this document was mailed to me. To date the claimant has not supplied that request. The sending of a Default Notice where reconstructed copies of which are later to be relied upon in court, cannot be deemed as received or served, unless it was specifically sent by a recorded or registered method.

10.3 The Consumer Credit Act 1974 S87 & S88 are explicit that a Default Notice must be served upon a debtor prior to terminating or demanding repayment of monies.

"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,

If the Claimant cannot provide material evidence that a default notice(s) was sent to the Defendant, this account has been unlawfully terminated

as statute provides that the procedure that must be followed. Since no evidence has been offered that the Claimant adhered to statutory procedure, it is averred that the Claimant does not have a right of action.

 

10.4 If the claimant can prove that a Default Notice wa sent to me, it is also incumbent on him to prove that that any such Default Notice was also valid. 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).

 

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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

10.5 The reconstructed copies of the Default Notice allegedly served upon me on 21 October 2008, received from the claimant and their solicitors, show a balance in default which include unlawful charges applied to the account.

 

10.6 The reconstructed Default Notice also states clearly that if the required action is not taken by the 07 November 2008 then the claimant may terminate the account.The, the claimant would have terminated the account on 08 November 2008. However the claimant seeks to rely on terms and conditons which follow the termination date, the latest letter received from the claimant containing terms and conditions being dated 23 September 2009.

 

The default notice provided by the claimant does not provide sufficient time to remedy the breach as required by law.

 

11. The claim relates to a regulated credit agreement regulated by the Consumer Credit Act 1974, yet the claimant claims statutory interest which the claimant should surely know he is not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) in particular section 2 (3) which expressly prohibits such an award.

 

12. In view of the matters pleaded above, I respectfully requests the court to give consideration to striking out the Claimant’s application for Summary Judgment. I belief I can offer a robust & legally valid defence to the Claimant's action & consider that if I am not given the opportunity to present the fact of this case to a full hearing, the case will not have been dealt with justly or fairly & would have severely infringed my rights to a fair trial as laid out under Article 6 of the Convention contained within the Human Rights Act 1998.

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed ……………………..

Date ………………………

 

 

 

I am not sure if the bit in green applies to your DN. If it does, you need to flesh it out.

 

You also need to address the issue of a defence sent in without statement of truth. Did you????

 

Check the rest through very carefully, you know all the facts, I don't.

Edited October 30, 2009 by foolishgirl
font foul up

[booda31]

Thanks very much for you guidance, I was going too far into detail.

 

That looks great, the DN does give enough time ro remedy, I assume 14 days to be same as 10 working days, plus 2 working days for the notice to be served, they are bang on timewise, shame never received it though.

 

Yes the defence I sent in did not include the statement of truth at the bottom, is this something I would address in the ws, along the lines of me being a non member of the bar with no funds to get legal advice, and feeling very streesed and intimidated.

 

The DN they provide, I can not see how it could fit on MBNA letter headed paper if its a true copy, the logo of MBNA would cover where the date of issue is on the copy.

[supasnooper]

The DN is a reconstruction.

 

MBNA's registered Head Office address should be clearly visible................I can't see it !!

I would also suspect that the dates have been amended and not in your favour.

Restons and MBNA can be very creative with their paperwork.

 

Have a look at the DN I received which is how it should appear - http://www.consumeractiongroup.co.uk/forum/show-post/post-1734964.html

 

Have you sent a Subject Access Request to MBNA ?

[booda31]

Hi there Supasnooper,

 

Thanks for you post.

 

My reconstructed and copy dn, as described by Restons, both look the same and do not have any heading, they do not look anything like even a photocopy of yours, apart from text contained.

 

I have done a sar request to which they recently replied. Have gone through it, and there is no DN, not a copy not a reconstruct none at all.

But there is a note on a print out of what seems to be system notes, stating DN issued on the date the copy dn states.

 

I have also just gone through a CCA request which they (MBNA) replied to in Dec 2008, and again no copy of a DN there.

 

Hmmmmmm

[supasnooper]

OK, what is the date of the DN and the date to remedy ?

 

Also, have a look through the "comms log" and see what date they "charged off" the account.

[booda31]

that all seems to be in order, 21.10.08, 07.11.08 and 29.11.08 on comms log 1st mention of charge off

[foolishgirl]

Yes the defence I sent in did not include the statement of truth at the bottom, is this something I would address in the ws, along the lines of me being a non member of the bar with no funds to get legal advice, and feeling very streesed and intimidated.

 

 

Suggest you put an additional clause in after (11):

 

12. I admit that I indavertently submitted my defence to this claim dated xxxx without adding a Statement of Truth. I sincerely apologise for this oversight & request that the court allow me lenience on this issue as a Litigant in Person, using its powers under CPR22.2 to grant the contents of my defence remain effective.

[foolishgirl]

You will need to attach copies of all the docs. mentioned in the WS & marked Exhibit Booda 1, Booda 2 etc. Each exhibit needs a seperate sheet attached to it like this (with thanks to pt):

 

On behalf of: Defendant

Witness: [Initials and surname]

Number: [1st] [2nd]

Exhibits: [“DEF1”]

Date:

IN THE XXX COUNTY COURT Claim No:

 

 

 

BETWEEN

[________]

Claimant

and

[________]

Defendant

 

EXHIBIT “DEF1”

This is the exhibit marked “DEF1” referred to in the [1st] witness statement of [D E Fern] dated the day of 200

[booda31]

Thanks for all your help on this FG really appreciated.

 

Have sent off the ws and the exhibits etc last week.

 

Am in court tommorow and will report back how it goes.

 

As a LIP am not feeling confident and wish that I considered being represented before.

 

Would I be too late to be represented by member of the bar on a cfa?

 

Anyway, will report back how it goes, and thanks again.

[foolishgirl]

The first time is the worst booda, just try to appear confident even if your heart is beating to tipping point. Demeanour is half the battle as it undermines the opposition & (hopefully) makes the DJ think you know what you are talking about.

 

Just make sure you have read up on all the law & judgments pertaining to defective DNs & can argue your points soundly & never forget it is up to the claimant to prove their case, not you to disprove it!

 

Can they prove the agreement was done by you? Where's their electronic evidence?

 

Can they prove they issued a valid DN? Where's the proof of posting?

 

Can they prove the sum claimed is correct? Where are the statements of account?

 

Remind the DJ that unless these docs. are produced the claimant has no case in any event & certainly no case for an immediate SJ! If SJ dismissed (as it should be) don't forget to ask the DJ to issue the draft directions you specified or the hearing will be a waste of court time too.

 

If the DJ asks if you owe the money, think carefully about your response. You definitely owe the money, you are contesting the exact amount owed & the claimant's legal entitlement to enforce the full amount of what they are claiming.

 

Don't let them hassle you or whip through points at speed. Be firm but polite. Take notes as the claimant is speaking & raise any points they make that you want to pursue when it is your turn to speak. If you don't understand any legal banter that may go on between sols. & DJ, say so immediately & ask DJ to explain. You are an LIP & he should make allowance.

 

Treat this a dress rehearsal.

Good luck, I'll be thinking of you....

FG

Edited November 11, 2009 by foolishgirl
wrong end of the stick

[Mr Happy]

I was carping myself when I had my first encounter at court, I too wished I had professional representation but the time went well for me, not sure if you read my write up link here if not.

 

I used the trembling LIP out of his comfort zone approach making the judge know I was out of my league but I was familiar with the legalities of the case and the only falling point would be my lack of experience at court, turned from an aggressive judge into a very helpfull judge.

 

You will be fine, my case has just been discontinued but they do like to drag things out so expect a long journey.