MBNA/Reston threating court action

[jason_mnm]

edited

Edited April 6, 2010 by jason_mnm

[slick132]

CB suggested this on the last page and I think it'll do fine:-

 

Its is respectfully requested this case be allocated to the small claims track. It is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

[jason_mnm]

Please comment if the following is enforceable othet than legiblity issue:

 

The first page of the aplication form:

 

MBNA Application form-1st page picture by jason_mnm - Photobucket

 

The reverse side of the application form

 

MBNA Application form-reverse side picture by jason_mnm - Photobucket

[pt2537]

Credit Limit or manner in which it will be determind is there

 

Term stating how the debtor may discharge his obligations by making payments is there

 

term stating the rate of any interest is there

 

 

Therefore the prescribed terms are there and unless you can put forward a positive assertion that shows the front is not the same document as the back ( see Carey v HSBC) then you will not have a hope in hell of arguing this document is unenforceable

[jason_mnm]

So u mean I need to request to see the original documents to prove if the back is part of the same document as the front?

[Mydogsawestie]

They "should" bring the true copy to court with them but in my case they didn't & no matter what I said on the day to see the orig document it was down to the judge lottery (family one) & he favoured Restons even when there was a faulty DN in with it all too.

 

....if you havent got a copy of the orig yourself then have you not got your initial statements to see what interest was on them at the start of the acct opening (were these provided to you in your SAR request)

 

As I can't read the docs posted up due to them being quite faint if the T & C have £12.00 charges on them, then I dont think they were applicable until May 2006 so that in itself could prove the T & C could not have been on the reverse of your document. Just a thought??

[jason_mnm]

Thanks Westie for your excellent thought... How is ur appeal process going?

[Mydogsawestie]

Its moving along in the manner to be expected!!!

[jason_mnm]

As expected Restons denied settlement and applied for summary judgement. What should I do now?How can I avoid summary judgement and get full hearing instead?

 

But fact is even if they get the judgement in their favour (which I hope not) they will not get nothing from judgement after looking at my income and expenditure summary prepared by CCCS. It also agreed by most of the lenders even by Tomlin order. In fact they might get nothing for ages or peanut from Judge compare to what I offered them.

 

The house is already under a Tomlin order who owns more than the euqity of the house.

 

Anyway plz tell me how can I avoid summary judgement hearing and get a full hearing instead?

Edited April 15, 2010 by jason_mnm

[slick132]

I assume you mean Restons turned down your settlement offer and have said they intend to seek SJ against you.

 

You should be able to avoid this because they have, so far, failed to to make a proper claim against you - ie it is not adequately particularised.

 

Have Restons shown no interest in reaching settlement outside of court and have they not suggested a figure they'd be willing to consider or accept.

[jason_mnm]

It was more than 30% of the amount they are claiming..

Edited April 16, 2010 by jason_mnm

[jason_mnm]

Thank u Slick

[jason_mnm]

What is the difference between Tomlin order and Consent order.

 

What happens if the consent order is signed by Litigant in person?

[pt2537]

that order is rubbish

 

tell them to put it right, from a firm of solicitors, thats scandalous

[Mydogsawestie]

What is the difference between Tomlin order and Consent order.

 

What happens if the consent order is signed by Litigant in person?

A consent order is an agreement between both parties that is drawn up and signed by both parties, its then sent into court and if the judge agrees becomes binding on both parties...

Usually its confidential and yes sometimes its called a tomlin order. There is normally a caveat in the agreement that states either side can apply to court if the terms are not kept to.

Shadow done one with Crapone and found it fine. It needs to be read properly and you need to make sure you are both agreeing to the same thing, i.e. it has to be explicitly stated for it to be bound to. Could they alter the monthly amount without your consent No, not without your agreement, hence the consent bit.

 

A Consent Order if drafted in the form of a Tomlin Order acts as a stay on the proceedings and should contain words specifically stating that the action is STAYED on terms. If it is a Tomlin Order it should contain a provision giving liberty for either party to apply which means basically that any party can ask for the stay to be lifted and the matter to be brought back to court for determination at trial in the event of e.g default in making payment.

Had all this copied from the forum ages ago for knowledge which I hope helps explain it for you too.

[jason_mnm]

Could they alter the monthly amount without your consent No, not without your agreement, hence the consent bit.

Can u explain the above plz? U mean they can change the monthy amount without my consent?

 

Thanks to both of u. Also Can Litigant in person sign the Consent order? and also can consent order have schedules?

[slick132]

You would consent to an order that you pay £xxx per month. The order cannot be changed without your agreement (consent).

 

[jason_mnm]

A Consent Order if drafted in the form of a Tomlin Order acts as a stay on the proceedings and should contain words specifically stating that the action is STAYED on terms.

 

Now can u plz tell being Litigant in person can I sign the above kind of Consent order?

[Mydogsawestie]

A Consent Order if drafted in the form of a Tomlin Order acts as a stay on the proceedings and should contain words specifically stating that the action is STAYED on terms.

 

Now can u plz tell being Litigant in person can I sign the above kind of Consent order?

 

Hi Jason have you pm'd the shadow, as mentioned he'd done one so he may be able to advise you more on this?

[jason_mnm]

Hi Westie whom should I Pm?

[annabella7]

can anyone tell me if it is more complicated trying to defend oneself in court for claims above or below £5,000

[slick132]

Hi Annabella,

 

Defending above or below £5K should not affect how complicated or difficult it is. Being well prepared and understanding what you are doing, regardless of the amount you are defending against, is the key to success.

 

However, the cost implications of losing a claim over £5K which is allocated to the Fast Track or Multi Track could be significant if you lose and costs are made against you.

 

The small claims track in civil courts (Leaflet EX306)

The fast track and the multi track (Leaflet EX305)

 

Sorry, Jason, for the hijack.

[Mydogsawestie]

Hi Westie whom should I Pm?

 

Jason, I have pm'd the_shadow to pop on by to assist you on your consent/tomlin queries in more detail. Maybe his experience of one will help you further on this. MDAW

[the_shadow]

Just seen the PM, if the consent order is open ended then imvho a judge shouldnt allow it as it favours one side over the LiP too much.

 

I cant seem to find the order to look at but if its as described and states they can increase the amount "in the future" then basically you would be signing up to agree to pay whatever they tell you when they tell you otherwise they could bring you back to court for the case to continue.

 

I would suggest you write back and state that as the tomlin/consent order is open ended you cannot commit to anything that puts you in a worse state than you are at present. Again re-iterate any offer you have given previously but state that this is the only viable solution and you would urge them to re-draft the tomlin/consent order in line with your suggestion.

 

HTH

 

S.

[jason_mnm]

Hi shadow-sent u a PM just now- plz let me know by PM