Mbna- Restons

[monkeygirlindebt]

Just got the allocation questionaire moving it to a lacal court and its asking for a high amount of money just under half the claim to be paid by the defendant or the court will take steps to strike out the counterclaim, did i do something wrong... I put in a counterclaim to cover myself, but i dont think it is near this at all, relatively small to their claim, have a screwed up...

[foolishgirl]

Ah I think I may have made a boo boo then, I put that I was may make one one but as I didn't have the info, I ticked the box, whoops!

 

Just got the allocation questionaire moving it to a lacal court and its asking for a high amount of money just under half the claim to be paid by the defendant or the court will take steps to strike out the counterclaim, did i do something wrong... I put in a counterclaim to cover myself, but i dont think it is near this at all, relatively small to their claim, have a screwed up...

 

I know you ticked the box but you didn't submit a counterclaim did you?

 

If not, I'm not sure why they want you to pay a fee. If you did, the fee would depend on how much the counterclaim was for i.e. if more than the claimant's sum, I think your fee would be more than theirs.

 

The fee structure is here:

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex50_e.pdf

 

If you can't work it out or think it is wrong, ask the court or post up the details here (minus your personal stuff)

[Sunshine54]

hello

 

I submitted a counter claim with my defence and no-one has asked me for any money.

regards

S

[monkeygirlindebt]

I think its because i didnt put a value in, and that i waa waiting for the paperwork, and according to this, as the value is unspecifed they are looking for the highest fee of £1530 to be paid within 14 days.

[foolishgirl]

IMO you need to write to the court asap & request permission to withdraw the counterclaim option along with any liability for the associated fees stated on the AQ. Check by phone first if they would permit this.

[citizenB]

I think its because i didnt put a value in, and that i waa waiting for the paperwork, and according to this, as the value is unspecifed they are looking for the highest fee of £1530 to be paid within 14 days.

 

Yes, they will ask for a fee if you didnt put an amount in. I thought you werent going to counterclaim as you didnt have all the statements ?

 

I agree with FG, you need to get onto the court first thing and get that counterclaim withdrawn.

[monkeygirlindebt]

I panicked late at night, and put it in just in case, which was silly I know I will call them first thing tomorrow. thanks again for all your help.

[monkeygirlindebt]

Hi all, back again I phoned the court the next day, and explained the issue, they were very good and told me to send an email and withdraw the counterclaim which I did. Its all been quiet on the Restons front, until today when i received the following two letters, the interesting thing is, the charges listed are the standard charges of £12, but the amount Restons are offering for the withdrawal is 66% higher... should I send them a copy of the faulty default notice?, and attached to their defence and counterclaim is another copy of the credit card agreement form.

 

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Edited November 25, 2009 by citizenB
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[diddydicky]

so if the creditor can balls up a DN and still have it regarded as effective why one must ask did the authors of the consumer credit act which is their to PROTECT the consumer not to assist the creditor, bother with stipulating the requirements that must be followed

 

this would be a good argument against their proposition that it does not constitute an unlawful rescission

 

(courtesy of X20)

 

My fellow Caggers, back to the general issue ..

 

May be it was my doing or we've just hung on to this word 'termination' like Rotweillers. The thing is, at least as I see it is, that where a creditor seeks early repayment or the return of goods following service of an ineffective DN, he is by his words and conduct expressing in clear terms that he is no longer willing to perform the essential obligations he promised to provide under the credit agreement. True, these words and conduct ride on the back of the debtor's failure to perform the debtor's essential obligations. But in this event the creditor has only to follow the procedure laid out in the Act and Regulations. And the Act says unless and until he has met the requirements of the Act and the Regulations, he acquires no such entitlement. Accordingly, to withdraw from the debtor the right to pay sums due by instalments or withdraw the right to continue with possession of the goods is to withdraw in breach of the statutory code which regulates the agreement.

 

The withdrawal of the debtor's rights may in one person's parlance be the same as the creditor's termination of the agreement. Just like 'default' in the words of one person may amount to 'breach' in the words of another. Or 'repudiatory breach' in the language of lawyer A is 'renunciation' in the language of lawyer B. Let's say though, for the purpose of the stream of thinking which follows, that strictly and legally speaking, withdrawal of these rights in default (or breach) isn't a termination of the agreement and that for termination strictly so called to have occured, the creditor miut have served a notice of termination. Does that mean therefore that the creditor's withdrawal and demand for early payment and/or return of goods is something the court can waive? Something the debtor can be expected to have understood was a mistake and unintended? That it is of no consequence?

 

I've got Chitty on Contracts General Principles (26th Edition) (1991). A bit out of date but good enough on General Principles I would have thought. And I'd thought I'd open it. Always a good idea when examining the contractual relationship of parties. Interestingly, 'termination' does not have an entry of its own in the umpteen page index at the back. It says in relation to Renunciation (and if you look up Repudiatory Breach it refers to to the same page number) that:

 

A renunciation of a contract occurs when one party by words or conduct evinces an intention not to perform, or expressly declares that he is or will be unable to perform, his obligastions under the contract in some essential respect. An absolute refusal by one party to perform his side of the contract will entitle the other party to treat himself as discharged, as will also a clear and unambiguous assertion by one party that he will be unable to perform when the time for performance should arrive. Short of such an express refusal or declaration however, the test is to ascertain whether the action or actions of the party in default are such as to lead a reasonable person to conclude that he no longer intends to be bound by its provisions. The renunciation is then evidenced by conduct. Also, the party in default 'may intend in fact to fulfil (the contract) but may be determined to do so only in a manner substantially inconsistent with his obligations' [Federal Commerce & Navigation Co Limited v Molena Alpha Inc (1979)] or may refuse to perform the contract unless the other party complies with certain conditions not required by its terms. In such a case, there is little difficulty in holding that the contract has been renounced.

 

If one party evinces an intention not to perform or declares his inability to perform some but not all of his obligations under the contract, then the right of the other party to treat himself as discharged depends upon whether the non-performance of those obligations will amount to a breach of a condition of the contract or deprive him of substantially the whole benefit which it was the intention of the parties that he should obtain from the obligations of the parties under the contract then remaining unperformed.

 

The renunciation must be made quite plain. In particular where there is a genuine dispute as to the construction of a contract, the courts may be unwilling to hold that an expression of intentino by one party to carry out the contract only in accordance with his own erroneous interpretation of it amounts to a repudiation and the same is truew of a genuine mistake of fact or law.

 

The demanding of early payment is to my way of thinking the immediate withdrawal of consent to all the remaining credit provided for under the agreement. Further, that it substantially deprives the debtor of the prime benefit he was to derive under it. Such a demand constitutes a breach of the regulated agreement save where it is demanded in compliance with the Act. If the demanding of such things is not tantamount to the creditor terminating the agreement, it is, nonetheless in my opinion, the creditor's renunciation of it. in consequence and in my opinion, the debtor may fairly regard himself as discharged from the agreement.

 

Chitty has this to say:

 

Consequences of Discharge - Effect on Contract

It has become usual to speak of the exercise by one party to treat himself as discharged as a 'recission' of the contract but as Lord Porter pointed out in Heymans v Darwin limited (1942):

 

'To say that the contract is rescinded or has come to an end or ceased to exist may in individual cases convey the truth with sufficient accuracy, but the fuller expresion that ther injured party is thereby absolved from future performance of his obligations under the contract is a more exact description of the position. Strictly speaking, to say that on acceptance of the renunciation of a contract the contract is rescinded is incorrect.'

 

This statement was unanimously approved by The House of Lords in Johnson v Agnew (1980) where Lord Wilberforce emphasised that this so-called 'recission' is quite different from recission ab initio as may arise for example in cases of mistake, fraud or lack of consent. It has also become usual to speak of the contract as having been 'terminated' or 'discharged' by the breach. Again however, these expressions may be somewhat misleading for they might suggest that the contract ceases forv all purposes to exist in that event. Such an approach was indeed adopted by the Court of Appeal in Harbutt's Plastercine Limited v Wayne Tank & Pymp Co (1970) so as to prevent the party in default from relying on an expemtion clause inserted in a contract which had been 'terminated' by breach. But this case was overruled by the House of Lords in Photo Production limited v Securicor Transport limited (1980). The true position was there stated to be, where the innocent party elects to terminate the contrsct, ie to put an end to all primary obligations of both parties remaining unperformed - that (per Lord Diplock) '(a) there is substituted by implication of law for the primary obligations of the party in default which remain unperformed a secondary obligation to pay money compensation to the other party for the loss sustained by him in consequence of their non-performance in the future and (b) the unperformed primary obligations of that other party are discharged.'

 

Given Diplock's statement of the position, may be to describe the agreement as 'terminated' following the events we are describing is, to adopt the words of Lord Porter, '..*to convey the truth with sufficient accuracy.'

[foolishgirl]

... they were very good and told me to send an email and withdraw the counterclaim which I did.

 

Good. it's interesting though that Restons are panicking over the counterclaim:rolleyes:

... should I send them a copy of the faulty default notice?

 

In the interests of being seen to be reasonable by the court, it may be a good idea. Suggest you send them a letter stating:

 

I am in receipt of your correspondence dated xxxx.

 

Please find my response to the matters you raise:

 

I note that you have yet to obtain a copy of the default notice from your client. I also note that your client appears to have commenced this action without having the documentation in their possession to support it.

 

However in the interests of assisting the court in the furthering of the overriding objective, I enclose a copy of the default notice issued by MBNA on xxxxx.

 

As the legal enforceability of the credit agreement is currently in dispute & sub-judice, I am unable at this time to either accept or refuse your offer in respect of the application of unlawful charges but note your comments.

 

I will continue to vigorously defend the claim you are pursuing.

 

YS

 

FG

[monkeygirlindebt]

As always, thank you very much!

[monkeygirlindebt]

I received this today, it for attendance approx two months away, should I be scared:eek:

[supasnooper]

Why be scared ?

 

This good news for you.

 

As you probably submitted a holding defence due to lack of documents and then requested them in your Allocation Questionnaire, the Judge has decided that the Claimants need to produce the required documentation.

Here is where you can ask them to bring the original document. You may wish to use CPR PD 16.7.3 to assist the Judge.

 

Try to get the Judge to make any order an "Unless" order.

 

The Judge may also ask if you require any further documents and also discuss track allocation.

[monkeygirlindebt]

Hello All, its been a wee while, a belated Happy New Year to you all! All has been quiet on the Restons front until I received this letter today, what does this mean:confused: ">

Edited January 19, 2010 by monkeygirlindebt
duplicated copy letter

[diddydicky]

well in my opinion that is a climbdown and the rubbish that they can re issue to DN or sue on the same facts again is a bit of self serving nonsence to try and extract something out of the situation

 

personally i would say thank you but no thank you

[benboy]

It's a threat that they say they can come up with an enforceable agreement (in court). If that was the case, why haven't they supplied you with one?

[monkeygirlindebt]

they do have the signed credit agreement, which I beleive is valid, and they have supplied a copy of, they just made a mistake with the default notice

[benboy]

Yeah, sorry Monkeygirl, just read through your thread properly.

 

Good luck

[monkeygirlindebt]

Ah thanks, I think the battle may be won, but the War is gonna carry on:cry:

[pedross]

Ah thanks, I think the battle may be won, but the War is gonna carry on:cry:

 

I disagree, I think the war is won.

 

Reston's clearly state that they are instructed to discontinue. Claim ended.

 

Your agreement is clearly terminated as I am sure diddy will agree. You therefore are not in a postion to default on the agreement now so there are no grounds to issue another DN.

 

If they try to issue another claim they will need the permission of the court and you will object and without new grounds they will almost certainly fail.

 

I have only skipped through the thread quickly so I may have missed something so do not act on my opinion without your regular posters opinions.

 

However, based on what I think I read I would reply to them (without prejudice except as to costs) and say that you are quite prepared to accept a reasonable settlement as they suggest. Say that they are clearly aware that they cannot issue a new DN and they will find it extremely difficult to recommence proceedings. By prolonging this case when they were clearly aware that they could not continue has caused you stress and sleepless nights and in continuing to try to mislead you it is compounding the problem.

 

What are they suggesting that they offer to you in compensation and wasted costs to resolve the matter. This will obviously be on condition that they agree that the debt will not be pursued in any way in the future.

 

Pedross

[diddydicky]

they do have the signed credit agreement, which I beleive is valid, and they have supplied a copy of, they just made a mistake with the default notice

 

well id like to see them argue that bringing a court action did not amount to termination

 

can you now resume making normal monthly payments?

 

 

 

of course you cant your agreement is no more

 

The "intent and purpose" of a DN is to give a debtor "another chance" so that if he comlies with the DN it will be as if the defautl never occurred

 

an effective DN cannot be served on a terminated agreement

 

it has gone to that great filing cabinet in the sky

 

it is an "ex " agreement

 

gone to meet its maker

 

it'll be a bloody clever lawyer than can say it is not terminated

[foolishgirl]

It's a threatogram MG - they have been told to discontinue but they are trying to squeeze some money out of you before they do.

 

When you get the NoD, make sure you go for a wasted costs order.

[monkeygirlindebt]

I have been continuing to pay them something each month through my payment plan, should I stop doing this?

[diddydicky]

I have been continuing to pay them something each month through my payment plan, should I stop doing this?

 

i presume that you have inadvertently been paying - thinking that the payments had been cancelled!!