Arrow/reston claimform - old MBNA card 'debt'

[MBNASlayer(1)]

Ok thanks Andy, so we wait and see what they want to do next?

 

Cheers

[AndyOrch]

I would assume so.....you know what the Judge stated and what is required before the next hearing...they will most probably throw the towel in before November....as its starting to cost too much.

[Guest]

Also I assume it is possible that another DJ may have a different interpretation of when the cause of action begins?

 

 

Thanks

 

 

MBNASlayer

interesting. it seems that the J is waiting to see if there are any other terms which wld contradict. it seems then thats the only way it cld be 'unbarred' (decided differently in the case).

so, unless there are any other terms to the contrary, it wld be barred as the J said (that seems the only way in which a different J cld decide otherwise. otherwise, it wld be for a matter of appeal)

[AndyOrch]

In the main the same District Judge deals with ongoing claims...unless Illness prevents

[MBNASlayer(1)]

Well I have spoken to the court who have confirmed the fee has been paid by Arrow/Reston so I presume they are proceeding.

 

Do I have to submit another witness statement?

 

Thanks guys

 

 

 

MBNASlayer

[AndyOrch]

Well I have spoken to the court who have confirmed the fee has been paid by Arrow/Reston so I presume they are proceeding.

 

Do I have to submit another witness statement?

 

Thanks guys

 

 

 

MBNASlayer

 

See post#225

[MBNASlayer(1)]

Hi all,

 

So I have now received a bundle of papers from the other side along with an updated WS.

 

They have now entered a 'new' Terms of Conditions document which Reston state 'were previously provided to the firm (Restons) in respect of a separate matter which also related to an MBNA credit agreement entered in to in XXXX'. It is probably worth stating that this T&C's document does not have any date stamp in the bottom corner which, from experience, the MBNA documents usually have.

 

The T&C state a number of points but the relevant being the following:

 

Clause X of the T&C sets out when all amounts under the agreement will become payable on demand and is followed by;

Clause Y a) this agreement ends and b) You fail to make a payment in full on or before its due date.

Clause Z Before a demand for payment under clause X, the creditor is required to carry out any procedures as required by law and if a demand is made under clause X , the creditor will inform you o their reasons immediately.

 

Restons then go on to say that this shows they were required to issue a DN prior to making a demand for full payment and ending the agreement and this was also required by S87 of the CCA. Therefore the date of the DN is when the cause of action date began.

 

 

A couple of points from me:

 

1) Undated T&C's that have not previously been supplied.

2) The DJ has already stated that they were required to issue a DN under S.87 CCA but he said this was to provide protection to debtors and should not effect the time limit for being SB.

 

I hope the above all makes sense.

 

Do you think it best that i press the points that the T&C are undated and DJ has already giving his opinion on the DN or is there anything else you think I should bring up? I'm not sure it will be the same DJ as it is another local court but not the one where the Summary Judgement hearing was.

 

Thanks as always.

 

 

 

MBNASlayer

[AndyOrch]

I would let the DJ deliberate on that...but its looking like a lot of smoke and mirrors to me.

 

Can we have their updated witness statement...and did the judge invite them to submit a further WS?

 

Andy

[MBNASlayer(1)]

Hi Andy,

 

At the Summary Judgement the DJ did say that both parties can submit further evidence for the hearing.

 

I have attached their WS. I think I have got my arguments sorted but would be good to get your thoughts.

 

Cheers

 

 

MBNASlayer

3465_001.pdf

[MBNASlayer(1)]

Hi Andy,

 

I wondered if you had a chance to look at the WS that I have attached?

 

As an aside I have received a separate letter of the costs that Restons are claiming......nearly £3k!!

 

This includes £500 for a Barrister who is head of chambers. Does this mean that they have sought a barristers opinion on the case and if so is it fair to add this cost in a small claims hearing?

 

The case is next week and you can probably tell from the time of this post that this is getting pretty stressful as I may owe a 5-figure sum in a few days......or on the positive side I may be debt free, depending on which way it goes in court.

 

Thanks

 

 

MBNASlayer

[MBNASlayer(1)]

I've just re-read the costings and the £500 is actually for the barrister to attend the hearing!

 

Two thoughts:

 

1) £500 sounds pretty cheap for a barrister to attend

2) I thought the point of a small claims hearing was to keep the court process fairly informal.

 

This strikes me as being rather unfair and is a bit like bringing a bazooka to a fist fight.

 

 

MBNASlayer

[Guest]

 

This strikes me as being rather unfair and is a bit like bringing a bazooka to a fist fight.

 

 

MBNASlayer

yep, the 'haves v haves not' (to coin a phrase)

 

is the forthcoming hearing the actual trial

what was the order for costs at the last hearing

[MBNASlayer(1)]

Hi Ford,

 

Yes, its the full hearing next week.

 

On the Summary Judgement the DJ said is was 'costs in the case' which means no costs were awarded for either side.

 

My understanding is that I can not claim costs for legal representation in the Small Claims court if I were to win so why should Restons be able to claim £500 for a Barrister?

 

Cheers

 

 

MBNASlayer

[Guest]

they shldn't be able to recover further costs (outside of the small rules) re the trial hearing. as wld be subject to small claims rules re costs (see the cpr) if on the small claims track.

the costs re the prior hearing may depend on whomever wins at the end, ie 'costs in the case'. ie if you win, then you may be able to claim yr costs for the SJ hearing, and vice versa. not sure.

check with andy etc.

[AndyOrch]

What date is the hearing ?

 

Andy

[MBNASlayer(1)]

9th Nov.

 

2 Days time!!

[Guest]

re the trial hearing which shld be on small claims track, they shldn't be able claim costs above the small claims costs.

it looks like they've done a costs schedule mainly re the SJ jearing hoping to get that shld they win the trial. (but, 3k is excessive. recalling a thread where about 1k was awarded re).

if they win the trial, then do dispute those costs. argue it being small track, etc.

and, if you win, then put in some of your costs re the sj hearing.

see what andy etc say.

[AndyOrch]

Was there a Barrister in attendance at the Summary Judgment hearing MBNA ? What Counsel did attend?

[MBNASlayer(1)]

Hi Andy,

 

There was just a solicitor in attendance at the SJ.

 

I'll me leaving shortly for the hearing so I'll let you know how how it goes.....fingers crossed!

[AndyOrch]

Best of luck.......

[MBNASlayer(1)]

Bad news........i lost

 

They relied in Hart v BMW Financial Services and this confirmed a two stage process of breach and issuance of the DN.

I argued this can be distinguished from this case as CCA offers more protection to the consumer as BMW was not a regulated agreement and Swansea Council cases not tested.

 

Unfortunately when they had a barrister arguing their side it fell on to deaf ears. It was a different DJ to the SJ hearing.

 

To rub salt in the wounds the DJ wasn't going to allow their costs but the barrister quoted another case which states that if the original contract allows for it they they are entitled to recover, even in small claims court. The DJ did her best and managed to knock a few hundred off.

 

Outcome is that I have to pay circa £11,500 in the next 14 days.

 

Thanks for the advice I have received over the years on this site.

In hindsight I should have settled when I had the chance at £3,500 but hey, you live and learn!

 

My financial position is better now than when I first started this thread in that I am now debt free.

I can make the payment to Restons but it completely wipes me out and puts me back to zero (although better than a minus number).

 

I will probably follow up this post with a little bit about my personal journey over the last 7 years.

I dont intend to brag about being debt free etc but thought it may give hope to anyone who is in the same position i was in 7 years ago when i started this thread.

 

I will also have to think of a new name.

 

(Not an)MBNASLayer

[AndyOrch]

Pity you didn't get the original Judge from the Summary Judgment hearing..he appeared to know the score and not have the wool pulled over his eyes.Do you intend to settle this in one payment or have you thought of submitting a variation application to monthly payment ?

 

I personally would pay them in dribs and drabs until I reached 100 years of age...the CCJ on my file would be irrelevant.

 

Andy

[Guest]

thats a bad result. thanks for updating

not the same J (how things can change between which judge), against a barrister, and that stupid hart case. plus costs...!

[Dotty50]

http://www.consumeractiongroup.co.uk/forum/showthread.php?447033-PRA-Group-claimform-old-MBNA-card-debt/page8

 

Did you ever read this thread?

 

Johno got help with an appeal and won so there's always a chance that you could too.

[Guest]

Johno got help with an appeal and won so there's always a chance that you could too.

dotty

re that thread you linked.

did that case i posted there on that page 8 help re the appeal?