MBNA Virgin (Restons) Court Case

[sharmar]

Am I right in presuming I should be submitting an amended defence as I have only sent an embarrassed defence due to non compliance of CPR?

 

When should I do this?

 

Do I send this before the Witness Statement?

 

Advice really needed here as I don't want to miss anything out and getting quite confused the more I research on threads.

 

Sharmar

[diddydicky]

you cannot submit a defence until you have all the documents that you need to defend against

 

once you have those documents you would be advised (IMO) to get the defence amended from your embarrased defence asap

[sharmar]

Hi Diddy,

 

Thanks for coming back.

 

They finally responded to my CPR request in February but again docs went to address I don't reside at and I didn't get them till end of Feb.

I'm surprised they keep using this address as I indicated my correct address on Court Claim form but they still communicate with me at wrong address.

 

The tenant keeps any post for me.

 

They enclosed

 

1.Copy Credit Agreement-this is the same that I already received and illegible.

 

2.Copy terms and conditions-these are not historic ones that applied the time I received card.

 

3.Statements of account

 

4.Default notice-same as the one I received and showing incorrect address.

 

Should I have submitted amended defence based then on this documentation received?

 

Worried, as I don't want to miss any deadlines!

[diddydicky]

Hi Diddy,

 

Thanks for coming back.

 

They finally responded to my CPR request in February but again docs went to address I don't reside at and I didn't get them till end of Feb.

I'm surprised they keep using this address as I indicated my correct address on Court Claim form but they still communicate with me at wrong address.

 

The tenant keeps any post for me.

 

They enclosed

 

1.Copy Credit Agreement-this is the same that I already received and illegible.

 

2.Copy terms and conditions-these are not historic ones that applied the time I received card.

 

3.Statements of account

 

4.Default notice-same as the one I received and showing incorrect address.

 

Should I have submitted amended defence based then on this documentation received?

 

Worried, as I don't want to miss any deadlines!

 

well if they have supplied all the docs you require to prepare you defence- then you should do so

 

the court will not take kindly to you sitting on an embarrassed defence

[sharmar]

Hi,

 

Can anyone assist me with an amended defence?

 

I'm getting totally confused here after reading several MBNA threads these last few days.

 

Would really appreciate some help here-

 

This is what I believe to be my defence but not sure how to format all this and what is or isn't relevant-

 

DN sent to incorrect address and not enough time for service and unlawful charges

 

Illegilble app form-(Restons even admit this in their N244 statement!)

 

No historic terms and CondItions

 

A great lttr from Diddy confiming Restons introduced a policy from Jan 1st not to respond to unsigned letters.I sent my CPR early Dec! Yet they use this policy on their N244 statement

 

s69 Interest etc on POC

 

Is this enough for an amended defence?

Should it be short and to the point and bulked out in the Witness Statement?

[vint1954]

Hi sharmar,

 

You shold have submitted your amended defence by now, as DD has said earlier.

 

The problem with someone else doing your defence, is that you ned to fully understand it, as you will need to argue it in court.

 

You will get some good pointers here, but you need to construct and understand it yourself.

[vint1954]

here is a start sharmar, but wait for other comments and advice.

 

Claim Number: xxxxxxxxxxx

In the xxxxxxxxxxx County Court

Between

xxxxxxxxxxxxxxxxx …………Claimant

-and-

xxxxxxxxxxxxxxxxx …………Defendant.

 

 

Amended Defence:

1. I Stexxxxxxxxx of xxxxxxxxxxxxxxxxx, am the defendant in this action and make the following statement as my amended defence to the claim made by xxxxxxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

3. The Defendant admits entering into an agreement with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

4) The claimants' inability to supply credible and legible documents, mentioned in the particulars of claims, under CPR31.14 disclose no legal cause of action and they remain embarrassing to the defendant, except where fully defended below. As the Claimants has only supplied illegible documents in relation to the agreement, in this regard I wish to draw the courts attention to the following matters;

b) The claimants Solicitors, have continually supplied illegible documents in relation to the agreement. This action by the Claimants Solicitors, are severely obstructing my ability to file a fully pleaded defence.

c) The Claimant failed to issue a Letter Before Action, as they are required to do.

[vint1954]

You may want to look through this and match it to your case, or add to it.

 

The Default Notice.

5. The Claimant issued a Default Notice to the Defendant on 13th October 2009, served by second class post, under section s87(1) of the Consumer Credit Act 1974.

a) 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).

b) It is submitted that the Claimant:

(i) Did not give sufficient time for the defendant to remedy the alleged breach or indeed seek legal advice, thus rendering the Default Notice unlawful.

(ii) Further unlawfully rescinded the agreement by requesting the balance of the account in full, following a non compliant Default Notice.

c) The Default notice issued by the Claimant is dated Tuesday 13th October 2009, posted second class. To allow service in line with the statutory requirements 4 working days ( excluding weekends ) were required to allow for 2nd Class postage. Thus the date to rectify the default, should be 14 clear days from service, namely Monday 2nd November 2009 and not the 31st October 2009, allowing only 12 clear days to rectify the default. This is in clear breach the regulations mentioned in 5(a) above, and the intent of Parliament, who changed the term to 14 clear days from 7, in a clear effort to protect the debtor.

d) The Claimant failed to ensure that an adequate and timely method of service of such a vital document was employed.

e) I would refer to the Interpretation Act 1978 Section 7, and Practice Direction from 16th April 1985, with regard to the service of documents by post. Service by second class post is deemed 4 working days ( excluding weekends ) following the date of posting.

f) The Claimant is put to strict proof that any Default Notice was indeed posted on the 7th September 2009.

g) For the consequences of the failure of a default notice to be accurate I would point the Claimant to the judgement handed down at appeal by the High Court in the case of: (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) by Lord Justice Kenedy.

“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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.”

Woodchester v Swain & Co

 

“It is worth remembering that very often these type of contracts are, in fact, complicated in themselves, quite apart from the question of any default, that those who draw up the contracts, that is to say, the finance companies, have necessarily the obligation of being able to calculate what is owing thereunder.

 

As Mr Hodgkinson points out, the words of Section 88 (1) require the lender to "specify" not only the nature of the breach - which in this case was adequately described as failure to pay the rental specified on their due dates - but also what action is required to remedy the breach. In the context of this case that meant specifying accurately what sum of money had to be paid.

Here we are dealing with a statute which, for good and obvious reasons, requires a lender or owner to set out precisely what needs to be done to put right the alleged breach of contract. If a sum of money has to be paid it needs to be "specified". And if the figure given is more than the sum which the giver of the notice is entitled to demand, the notice, in my judgment, must be invalid. Here we are dealing with a statute which, for good and obvious reasons, requires a lender or owner to set out precisely what needs to be done to put right the alleged breach of contract. If a sum of money has to be paid it needs to be "specified". And if the figure given is more than the sum which the giver of the notice is entitled to demand, the notice, in my judgment, must be invalid.”

 

[diddydicky]

to be sure , to be sure

 

be jeebers be jabers

[robcag]

Hi Shar

 

I came across this newish thread yesterday which might be worth reading. There are some comments in there by vjohn82 which may be useful, particularly using CPR 32.18 on form N266 (post #15 I think) to get the enemy to admit that the documents are dodgy.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/253128-nttf-restons-hfc.html

 

Cheers

Rob

[robcag]

PS

 

Maybe I should have mentioned 32.19 also, but here's a link to CPR32;

 

PART 32 - EVIDENCE - Ministry of Justice

 

Cheers

Rob

[sharmar]

Hi Vint, Rob,

 

Really appreciate you both taking a look!

 

Am busy compiling an amended defence and will post up as soon as ready.

 

I'm on the DN part now which is going to be my main defence.

 

Restons also responded to my CPR request at incorrect address despite me reiterating my correspondence address on Claim form,AQ form and CPR request letter.

They even include a copy of my CPR letter with their Notice of Hearing application evidence and refer to it as MBNA5.It clearly shows my correct address on top right hand corner!

Should this be included in Defence?

 

Shar

[Mydogsawestie]

Hi sharmar

 

your welcome to a copy of my amended defence & covering letter if it can help you in your time of need. Restons do in my experience seem to obstruct & stall matters when obtaining documentation.

I hope some of this can help you.

MDAW Cover Letter Amend Defence.doc

MDAW Amended defence.doc

[sharmar]

Fantastic MDAW!

 

Thanks so much,it's really helpful.

 

Sharmar

[vjohn82]

Hi

 

CPR 32.18

 

Notice to admit facts

32.18

(1)A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.

 

(2)A notice to admit facts must be served no later than 21 days before the trial.

 

(3)Where the other party makes any admission in response to the notice, the admission may be used against him only –

 

(a)in the proceedings in which the notice to admit is served; and

 

(b)by the party who served the notice.

 

(4)The court may allow a party to amend or withdraw any admission made by him on such terms as it thinks just.

 

Get them to admit the flaws in the documents... if they don't admit the flaws it makes them look baaaaaaddd. Admissions are crucial elements in a claim from my experience.

 

One of my creditors completely collapsed upon receipt of one of these beauties. Shows how using the CPR to your advantage can kill claims off.

[Mydogsawestie]

Fantastic MDAW!

 

Thanks so much,it's really helpful.

 

Sharmar

 

Heres a copy of my Witness statement should you like some of the layout to use aswell, may save you some time as well

 

Vjohn82 like your posting...useful info indeed to know...

[Mydogsawestie]

Sorry I boobood here is the right attachment this time!!

MDAW Witness Statement.doc

[sharmar]

Thanks again MDAW! Great information.

 

Will definitely be adapting!

 

Sharmar

[sharmar]

Hi

 

CPR 32.18

 

 

 

Get them to admit the flaws in the documents... if they don't admit the flaws it makes them look baaaaaaddd. Admissions are crucial elements in a claim from my experience.

 

One of my creditors completely collapsed upon receipt of one of these beauties. Shows how using the CPR to your advantage can kill claims off.

 

Vjohn,that's good stuff!

 

Have you got a template I could use?

 

Also,do I send this both to the Court and Restons?

 

Thanks,

Sharmar

[vjohn82]

You need to fill in this form: http://www.hmcourts-service.gov.uk/courtfinder/forms/n266_0499.pdf

 

I filled mine out like this...

 

[vjohn82]

Number 1 was to establish that the terms and conditions they had supplied were not the ones referred to in the signature box.

 

If they admitted it the agreement would be non-compliant.

 

Number 2 was to ask them to confirm that CP2 was only signed by one person from each company in contravention of section 36A of the Companies Act 1985.

 

If they admitted it they would be admitting they have no cause of action and that the claim was vexatious.

 

Number 3 was to ask them to confirm that their Notice of Assignment did not constitute a valid notice under the LPA 1925.

 

If they admitted this they would be admitting being in breach of the Act and therefore have no cause of action.

 

The point of this was to simply confirm that my case was solid; any one of those facts which were prevalent and which could be proved at trial would have demonstrated that their case was baloney.

[sharmar]

Thanks again VJohn.

 

Really appreciate this info and delighted it's worked for you!

 

 

Will get my amended defence in and then look into this further.

 

Had you submitted a defence prior to going for this?

At what stage legally were you at?

 

 

Sharmar

[vjohn82]

I would advise reading my thread in full. There is some crap within it but on the whole the thread stays on topic and it has tons of useful advice.

 

Proceedings wise HFO Services discontinued their claim and I have a costs hearing on the 19th May. If a party discontinues they are liable for costs under CPR 48.6.

 

I had already submitted a defence when I used the Notice to Admit Facts.

 

I was quite lucky in the sense that I got the original set aside of the CCJ despite it being on the record for 2 1/2 years.

 

Due to the position I got HFO in they ended up making a number of admissions because they got angry with me. I played them like a violin to be honest. As a result, I submitted a court claim under the Data Protection Act the other day and they have to respond by the 15th April.

 

I have submitted a complaint with the Solicitors Regulation Authority for the legal reps conduct during the process.

 

I have also submitted a complaint to the Information Commissioner because one of the documents proved that HFO Capital (a parent company) purchased thousands of debts (worth millions) despite not being registered with the Information Commissioner.

 

Here's my thread http://www.consumeractiongroup.co.uk/forum/legal-issues/245294-vjohn82-hfo-services-limited.html#post2741659

[sharmar]

Can anyone help me with this?

 

Restons also responded to my CPR request at incorrect address despite me reiterating my correspondence address on Claim form,AQ form and CPR request letter.

They even include a copy of my CPR letter with their Notice of Hearing application evidence and refer to it as MBNA5.It clearly shows my correct address on top right hand corner!

Should this be included in Defence?

[diddydicky]

i would write to them and complain and send a copy to the court and ask them to put it on their file