Mbna- Restons

[monkeygirlindebt]

I'm a nervous newbie, and have got myself in a pickle, I made the move a while back to join payplan (who have been greatl) and have been following a payment plan religiously, we had a few cards with MBNA who have all been sold onto various DCA's, except one of the smaller ones who it appears has gone straight to Restons, we received a letter from them about three weeks ago, which Payplan sent onto them our fininacial statement and then yesterday, we received a County Claim form from them , is it usual for this to happen, we are not disputing the debt, just saying that we have difficulties in paying it at this time, and have continued to pay what we can, if they take us to County Court, won't the judge looking at it see the same as payplan? is there any benefit Restons would get by going down this route? Sorry for all the questions, kinda scared about this...

[Mydogsawestie]

Hi & welcome. This all happened to me in Feb this year with Restons, I am in Payplan aswell. MBNA were the only ones who were being unaccepting of my payments I could make at £20 mth.

http://www.consumeractiongroup.co.uk/forum/legal-issues/185814-court-papers-help-required.html

I then decided as they were not playing ball with me to look into seeing if they had a valid Credit card agreement and valid Default notice in order to have the right to serve me these court papers in the first place. I got lots of helpful advice on here. Have you applied for your CCA previously? Also may be worth using photobucket to post up your Default notice minus your personal details for the experienced caggers to take a look at it for you.

[supasnooper]

Hi MGID,

 

Welcome to CAG.

 

I'm sure you 'll get plenty of help here.

 

As Restons have now issued a claim against you; you will need to complete the Acknowledgment of Service..........and that you intend to Defend All.

 

If you admit the debt, then you will get a CCJ against you by default without having the opprtunity to see if Restons\MBNA paperwork is in order.

[sunflower99]

Hi Monkeygirlindebt

What year was your MBNA card taken out ?

[monkeygirlindebt]

Thank you all for your responses! I'm not quite sure what year, but I'm sure at least five years ago. payplan have asked that we send the Calim form to them, but I don't think they will fight it will they? If i fight this Mbna debt, will it affect the other debts which I beleive MBNA have accepted the payment plan?

[Mydogsawestie]

Dont send the claim form to Payplan they will admit the debt on your behalf & the next thing you have will be a ccj then if you have a property Restons then will want to go for a charging order.

 

Did you get a default notice from MBNA as it would be useful for you to post (photobucket) this up to see if its defective? Also can you post the paticulars of the claim form on here so that experienced Caggers can have a look at that too for you? Decisions going forward may be based on this knowledge aswell as your Credit card agreement details/date if known??

 

Any other debts I have are still with Payplan & have continued along quite nicely. I have only done to MBNA what they have brought onto me, my court appearance saw them off at the first hurdle although I'm still not out of the woods yet. With the help from others on this site you too will get all the assistance you need so dont be scared

[Gazza112]

Thank you all for your responses! I'm not quite sure what year, but I'm sure at least five years ago. payplan have asked that we send the Calim form to them, but I don't think they will fight it will they? If i fight this Mbna debt, will it affect the other debts which I beleive MBNA have accepted the payment plan?

 

 

Right you need to as the other caggers said defend all the claim.

If you admit any part of this dept, it will give the other side a better chance in winning. Payplan will not defend any case, as it costs them money and probably not got the expert advice that is on here to take the case on. You will need to send Reston's a CPR 31.14, that will put them in stricked proof to weather they hold any inforceable documents they could use in Court. On the other MBNA cases you have in due time, MBNA will probably sell them on as well.

 

 

Gaz

[monkeygirlindebt]

OK kokey I've had a go at this, first time on photobucket as well, so I hope it's gone ok, i took off (I think all the identifiying details) and have just noticed the CCJ has the date of contract as July 2006

 

Edited November 25, 2009 by citizenB
links not working properly

[Gazza112]

Hi

 

That's ok, did you keep the enverlope your Default Notice came in.

If so did they send it first or second class post.

 

Gaz

[monkeygirlindebt]

Sorry I didn't:oops:

[Gazza112]

Sorry I didn't:oops:

 

That's a shame as this would show if the default was valid or invalid.

Ok, in future save all corrispondace you receive from these creditors.

 

Gaz

[citizenB]

Right the date of issue on the claim form is 30th September 2009.

 

Your time line will be

 

Date of issue to date of service (5 days allowed), so it will be assumed you received the claim from at the latest 5th October 2009.

 

From then you have 14 days within which to acknowledge the claim online. If you are going to defend in full then you will have a further 14 days.

 

In total 33 days from the date of issue on the claim form.

 

You must now send a request to Restons for information. ie a copy of the agreement on which they base their claim. Use the draft letter below. Read it carefully, add or delete what is required and where prompted and send to the solicitor immediately either by recorded delivery or if you can afford it.. special delivery.

 

You can acknowledge service online. Print off the receipt for your records.

 

 

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

[foolishgirl]

Hi monkeygirl

 

The POC is pants for a starter:

 

1. Doesn't identify what type of agreement although there is an account no.

 

2. They are claiming stat. interest. If this is a credit agreement (eg. card or loan), it's not permissable - County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case if in relation to a debt regulated by the Consumer Credit Act 1974

 

Also have you ever had any charges added to your credit card & not reclaimed them? eg. overlimit, late payment. Not only are they unlawful & can be reclaimed (as a counterclaim if you wish) but it would make the arrears in the DN wrong (& therefore defective DN ) & the sum on the POC wrong too.

 

If you need statements from this account to calculate the charges, suggest you SAR MBNA asap. The template is here, amend to suit:

http://www.consumerforums.com/resources/templates-library/48-bank-templates/110--data-protection-act-1998-subject-access-request-

 

As with the CPR request letter above, don't sign the letter - print or use dig. sig (see CAG signature maker) - send Rec. Del. with £10.00 PO. It is not unknown for creditors to do a bit of copying & pasting re. agreements etc. They have 40 days to provide you with the info. - plenty of time before a hearing.

[Mydogsawestie]

That's a shame as this would show if the default was valid or invalid.

Ok, in future save all corrispondace you receive from these creditors.

 

Gaz

 

Hi Gaz when I was in court Restons were put to strict proof that my DN was served 1st class because as far as I remember it was 2nd!!!!!! DJ asked them for proof of this from MBNA & nodded when I stated perhaps they should have sent such important documentation recorded or special delivery!

 

Monkeygirlindebt - The DN is dated 7th Jul for remedy by the 24th July. They have to give 14 CLEAR days to rectify any breach. Second class would have meant you were served this document Saturday 11th July.

 

1. Interpretation Act 1978, Section 7

This 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

 

 

I am wondering therefore if the DN here is within the time scales

Will day one be Sat 11th July (the day of deemed service???) if not then its 13 days

 

Anybody???

[Gazza112]

I am wondering therefore if the DN here is within the time scales

Will day one be Sat 11th July (the day of deemed service???) if not then its 13 days

 

 

No, you don't count Saturday as a first postal day.

Quote:

1. Interpretation Act 1978, Section 7

This 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.

 

 

 

 

Gaz

[supasnooper]

The DN is defective for the simple reason it does not allow the 14 days required by parliament to rectify the Default Notice.

 

If the DN was posted on Tuesday 7th July 2009 by UKMail Special postal service then it would be deemed served on Monday 13th July as Saturday and Sunday are not working days.

 

Having received the DN on Monday 13th July gives only 11 days to rectify, not the 14 days that Parliament clearly stipulated, when they passed the Consumer Credit Act 1974.

 

Unfortunately for MBNA, if a Default Notice is defective then the creditor may only pursue the debtor for the amount of the arrears stated on the Default Notice thanks to the case law of Woodchester v Swain.

 

Please look at the link below - http://www.consumerforums.com/resources/templates-library/56-cases/162-woodchester-lease-v-swain-a-co-1998-default-notices-

[monkeygirlindebt]

Wow you guys know your stuff:D Thank you for all your help, I've just prepared my CPR 31.14, and am going to complete my Acknowledgement of service. In terms of the default notice, it states the full amount of the debt oustanding, not the arrears, so they must of covered their bums there!

[monkeygirlindebt]

Also despite notifing them of my new address, and having received earlier correspodance to the new address, they did actually send the default notice to the old address, is this something else that could make the default invalid?

[foolishgirl]

In terms of the default notice, it states the full amount of the debt oustanding, not the arrears, so they must of covered their bums there!

 

Definitely!

 

Also despite notifing them of my new address, and having received earlier correspodance to the new address, they did actually send the default notice to the old address, is this something else that could make the default invalid?

 

Not in itself, but you should ask for proof of posting otherwise how do you know it's been sent at a time that would allow you sufficient no. of days to rectify?

[Mydogsawestie]

No, you don't count Saturday as a first postal day.

 

 

The DN is defective

 

 

:D:D:D:D:D:D

[johnerog]

Just a message of support monkeygirl. Go for it.

[monkeygirlindebt]

Thank you all for your support, this site is great, I didnt get my letter off last I struggled wioth my digital signature, going to have another go now, i

[Gazza112]

Thank you all for your support, this site is great, I didnt get my letter off last I struggled wioth my digital signature, going to have another go now, i

 

 

You don't really need to do a signature for a CCA, you can just type your name or if your not sure just print your name. But make sure if you print your name you get a copy.

 

Gaz

[monkeygirlindebt]

I sent my CPR request off, and they would have this nearly two weeks now, I havent had a response so far, and god knows with this postal strike, my county claim is dated 30 sep, so do I just sit tight for the next 6-7 days, or should i be doing something? just feeling a little anxious....

[Mydogsawestie]

Have you got your defence ready yet...its unlikely you will have any docs from your CPR request before your defence needs to be filed, they are reknown for that. MBNA Help needed posting #35 is a copy of my 8000 character defence. Your welcome to chop & change any of this defence to suit