County Court Claim received MBNA\Restons

[gh2008]

Also - what do I do with the returned PO for £10 - take it and get my cash back? - I defiantely could do with that £10 today - midweek and the fridge is looking rather empty - teenagers eat food quicker that I can unpack it!!!

 

If it wasn't made out to anyone then you can make it out to yourself and cash it - otherwise take it back to where you bought it and ask them to cancel & refund

[Redfish]

Hi Redfish - I was reading your thread last night - I think ours are similar - just Application Form!

 

Hi LB, trying to read through your thread today. Can you check...on your DN it refers to para 8 of your agreement (as it did in my DN) - in my 'agreement' there was no para 8, only paras 1 to 3 (incomplete because it states at the top that these are only paras 1 to 3, but no full copy of the terms given with the CCA). The para 8 can be found on the current terms and conditions - but as you have already noted I think, those current t&cs do not match the application form which mentions section 11 for data protection, and section 11 on the current t&cs are not about data protection. So it shows the current t&cs do not match the application form and the DN has no legitimacy deriving from the signed application form. They would have to produce the full terms for the original agreement, and it is very unlikely that they can, it is not normal to change the numbering of the terms like that, so they would have to produce original terms that also show how the numbering changed. They would get themselves tied up in nots.

 

I'm not sure, but it looks like this would invalidate the DN to say the least.

Edited April 21, 2010 by Redfish

[LB145]

Hi LB, trying to read through your thread today. Can you check...on your DN it refers to para 8 of your agreement (as it did in my DN) - in my 'agreement' there was no para 8, only paras 1 to 3 (incomplete because it states at the top that these are only paras 1 to 3, but no full copy of the terms given with the CCA). The para 8 can be found on the current terms and conditions - but as you have already noted I think, those current t&cs do not match the application form which mentions section 11 for data protection, and section 11 on the current t&cs are not about data protection. So it shows the current t&cs do not match the application form and the DN has no legitimacy deriving from the signed application form. They would have to produce the full terms for the original agreement, and it is very unlikely that they can, it is not normal to change the numbering of the terms like that, so they would have to produce original terms that also show how the numbering changed. They would get themselves tied up in nots.

 

I'm not sure, but it looks like this would invalidate the DN to say the least.

 

 

Hi RedFish

 

My application Form (not Agreement:D) has a very small narrow strip on the resverse - small print rather hard to read - para 8 is about the interest and changes that can be made to it!

 

The typed Terms & Conditions supposedly at that time- Para 8 is about Debits, Credits

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAAplicationFormSide2July09.jpg

[citizenB]

Also - what do I do with the returned PO for £10 - take it and get my cash back? - I defiantely could do with that £10 today - midweek and the fridge is looking rather empty - teenagers eat food quicker that I can unpack it!!!

 

If it wasn't made out to anyone then you can make it out to yourself and cash it - otherwise take it back to where you bought it and ask them to cancel & refund

 

you should have no problem getting a refund. You will need the receipt you obtained from teh post office when you purchased the Postal order and maybe even take the letter from MBNA saying they are returning it to you.

[Redfish]

Hi RedFish

 

My application Form (not Agreement:D) has a very small narrow strip on the resverse - small print rather hard to read - para 8 is about the interest and changes that can be made to it!

 

The typed Terms & Conditions supposedly at that time- Para 8 is about Debits, Credits

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNAAplicationFormSide2July09.jpg

 

Great...so you have them by the short and curlies! Para 8 should be about paying arrears according to the DN, so the DN has no relation to your application form masquerading as an agreement. As for the typed T&Cs they can't be the ones at the time if they are numbered differently, the lenders would have to say how they related to your application form/agreement because they clearly don't.

[LB145]

Received letter from Solicitors noting that I have filed a Defence, (the blue is my thoughts) Explaining to me that the "application form" is a dual purpose document, it is an application form when it is sent to you, upon the signatures of the parties, it becomes the Executed Credit Agreement -this application only has my signature it does not have a signature from any MBNA staff - would MBNA be one of the parties involved required to sign??

 

In paragraph 11 referring to Terms & Conditions that were on the reverse of the Credit Agreement. However the Terms and Conditions you have exhibited are not the ones that appeared on the reverse of the Credit Agreement and at no point did we say that they were - ?????

 

In Paragraph 22 you refer to a request made pursuant to S78 Consumer Credit Act 1974 and the response sent to you by the Claimant. Unfortunately our client has no record of having received your request. ???? So where did I get the response letters from???

 

They have also enclosed

1.Executed Credit Agreement (double sided) - again copy Application Form

 

2. Reconstitution (RECONSTRUCTION - I THINK) of original T&C's which applied to account

3.Trans log document of all transactions on account

 

The Credit Agreement fully complies with the provisions of the Consumer Credit Agreement Act 1974 and all Regulations made pursuant to it. The document is signed by the creditor and the debtor and contains all the required terms in the same document (where is the signature from the creditor?)

We do not beliece that you have an argueable defence in law to the claim issued agaisnt you , our instructions are therefore to make an application for Summary Judgement against you. The action will incur further cost, which will then be liable to pay. In order to avoid this, we invite you to withdraw your defence to these proceedings. Should you wish to do this, please confirm in writing within seven days.

------------------------

Also rang the courts for an update and informed the clerk of the letter received - she told me that she cannot find file at present, was referred to a judge on the 8th April to send a copy of letter to the courts as I am waiting for directions from the courts and not from the solicitors

 

Thoughts needed!!!

Edited April 23, 2010 by LB145

[bazaar]

Do you have proof of them receiving your requests? Although, you have letters from them in response, it'll still help in shooting them down.

1.If your agreement is a dual purpose doc, then where does it state that on the document??

2.The CCA is clear on what constitutes an executed agreement, does this application meet those requirements? No? , then pick it apart.

3. OK so theyve sent you a reconstruction, but can you get the Court to order that the original is presented at court? that might make their sphincter clench a little:-|

4.If the 'agreement' theyve sent complies, as you say, where is their signature to fully execute said agreement?

5. the last bit is just to try and pressure you. have they sent this without prejudice?

 

Lastly, they dont cite why they think you do not have an arguable defence, I wonder why?

 

You could always write to them and invite them to discontinue because you dont think they have an arguable claim without the original documentary proof,

[bazaar]

Also, does this apply?

The OFT is clear that if a contract is unenforceable under sections 77-79, and that it is apparent to the creditor or owner, then not only must the creditor or owner not obtain judgement or take any of the steps listed in sections 76(1) and 87(1), it must not in any way mislead debtors or hirers, either by action or omission, into thinking that it will be able to obtain a judgement on a debt or to recover possession of goods or otherwise enforce any rights under the agreement.

Misleading debtors as to unenforceability is very likely to be seen as an unfair or improper business practice under the Act.

 

The creditor or owner should make it clear in communications to the debtor that the debt is in fact unenforceable. Failure to do so, where the creditor or owner is aware of unenforceability, would in the OFT’s view unfairly mislead the debtor by omission.

 

Unfair or improper business practices may form the basis for action by the OFT under the Act, including by licensing action or the imposition of formal requirements. In addition, to mislead debtors into making a payment may in certain circumstances amount to an unfair commercial practice under the Consumer Protection from Unfair Trading Regulations 2008."

 

What Im getting at here is, to go through what they are stating, If theyve based it on a law or statute, then go through the law to see if theyve omitted anything from it to suit their needs.

Im sure they will have, this can then be used against them as directly misleading you and the court.

[LB145]

Hi Bazaar - no not sent without prejudice! - I have got to complete some urgent work tomorrow - so I will have a good look tomorrow. Thx for the input

 

-

[vint1954]

Received letter from Solicitors noting that I have filed a Defence, (the blue is my thoughts) Explaining to me that the "application form" is a dual purpose document, ( wish them luck with that one LB) it is an application form when it is sent to you, upon the signatures of the parties, it becomes the Executed Credit Agreement -this application only has my signature it does not have a signature from any MBNA staff - would MBNA be one of the parties involved required to sign?? ( for an application form to become an agreement, it needs to be set up as such. 2 places for 2 signatures. You can argue that this was never intended to become a REGULATED agreement) They need a bit of luck proving that the 2 were on the same document, if you defend robustly. Try using CPR 31.15 and demand to view the original document at a venue of their choice.

 

In paragraph 11 referring to Terms & Conditions that were on the reverse of the Credit Agreement. However the Terms and Conditions you have exhibited are not the ones that appeared on the reverse of the Credit Agreement and at no point did we say that they were - ????? ( they must be on the reverse????)

 

In Paragraph 22 you refer to a request made pursuant to S78 Consumer Credit Act 1974 and the response sent to you by the Claimant. Unfortunately our client has no record of having received your request. ???? So where did I get the response letters from??? ( Easy to bat off by being bemused by their clearly contradictory statement, as the OC has responded)

 

They have also enclosed

1.Executed Credit Agreement (double sided) - again copy Application Form ( tell them you do not beleive this document to be a copy of the original, again CPR 31.15. I WANT TO SEE IT)

 

2. Reconstitution (RECONSTRUCTION - I THINK) of original T&C's which applied to account

3.Trans log document of all transactions on account

 

The Credit Agreement fully complies with the provisions of the Consumer Credit Agreement Act 1974 and all Regulations made pursuant to it. The document is signed by the creditor and the debtor and contains all the required terms in the same document (where is the signature from the creditor?) ( That in fairness is a deminimis isuue as it can be signed by OC at any time, but there needs to be a provision for their sig)

 

We do not beliece that you have an argueable defence in law to the claim issued agaisnt you , our instructions are therefore to make an application for Summary Judgement against you. The action will incur further cost, which will then be liable to pay. In order to avoid this, we invite you to withdraw your defence to these proceedings. Should you wish to do this, please confirm in writing within seven days.

------------------------

Also rang the courts for an update and informed the clerk of the letter received - she told me that she cannot find file at present, was referred to a judge on the 8th April to send a copy of letter to the courts as I am waiting for directions from the courts and not from the solicitors

 

Thoughts needed!!!

Just go back to them arguing their unacceptable doccument and issue a CPR 31.15 request.

[LB145]

Just realised my 1st year anniversary of standing up against these muppets and requesting a copy of the CCA's (several accounts) has passed this week - I think I'll save the bubbly for the day that I can wave goodbye to them!

[Dotty50]

It was my 1st CAG birthday on the 20th LB, can't believe it!

 

Like you, I will hold off any celebrations for now.

[LB145]

It was my 1st CAG birthday on the 20th LB, can't believe it!

 

Like you, I will hold off any celebrations for now.

 

Dotty - I recall first going on another website and was so badly verbally attacked for even suggesting that I seek as to whether they were unenforceable and a kind person suggested CAG - so glad for that pointer!!!

[LB145]

Just go back to them arguing their unacceptable doccument and issue a CPR 31.15 request.

 

So do you suggest writing to them direct although I am waiting on directions from the courts and how do I issue the CPR 31.15 request - is this a letter or a document from the courts?

[LB145]

The clerk at the court suggested I send a copy of the letter to them - who do I address the covering letter and does the copy of their letter need a cover?

[emandcole]

Hi LB, have you got hold of a CPR 31.15 request letter to send? They're availble on this site if you have a dig round. Send to Restons as they're doing the actual litigating and have the responsibility of processing the request.

[emandcole]

Quick addition, you'll be asking for sight of the documents with this letter ok? They should make them available for you at a reasonable location of their choosing.

[LB145]

Hi emandcole - good to hear from you!

[LB145]

Just got of the telephone to Royal Mail Customer Service - they have anew system so it was abit long winded but they have 100% confirmed that MBNA DID receive my original CCA request on 16th April 2009 - I have to send a payment of £2.20 and they will send written confirmation.

 

To all fellow Caggers - When checking whether your recorded or special delivery items have been posted remember to print the screen that shows this - saving £2.20 in the future and lots of time!

[emandcole]

That's great news...the ignorance of a section 78 (77,79) request has repurcussions for the creditor.

 

Good advice for other caggers too

[LB145]

Still hunting CPR 31.15 template letter - search and get other threads and then I start reading them and getting side tracked

[Dotty50]

http://www.consumeractiongroup.co.uk/forum/show-post/post-2898864.html

 

Hi LB,

 

Not sure if this is of any help, if not, at least it will give your thread another nudge!

[LB145]

Cheers Dotty!

 

So am I write in thinking that the CPR 31.15 is about photocoping costs that are a result of the CPR 31.14 request.? Sorry getting confused as to what I am needing to request. Previously requested the CPR 31.14 information.???

[Dotty50]

DCA: Using CPR 31.14 to Your Advantage - Consumer Wiki

 

Hi LB

 

Is this of any help? I do not have any experience with court yet and hope it never gets that far but I saved this some time ago. I have seen surfaceagent20 mentioned on CAG quite often.

[vint1954]

So do you suggest writing to them direct although I am waiting on directions from the courts and how do I issue the CPR 31.15 request - is this a letter or a document from the courts?

Hi LB,

 

Yes, you send the letter to the claimants solicitors, copy to the court.

 

Dear Sir,

 

Rexxxxxxxxxxxxxx v xxxxxxxxxxxxxx Case No: xxxxxxxxxxxxxxx

CPR 31.15 Request

Further to the above case number, I have sought a copy of the original agreement that you mention in your POC. Despite numerous requests under CPR 31.14, you have failed to supply this document, supplying only a one sided application form and a truncated section of terms.

Both of the documents that you have supplied are inadequate and illegible, obviously being unfit for the purpose of my defending your claim.

In an attempt to again resolve this issue, I now require sight of the original executed agreement, as I am allowed to do under CPR 31.15.

You will note that under this rule, you must allow me inspection or the original document within 7 days of the date of this letter.

 

I look forward to your urgent response.

 

Yours faithfully

c.c. Northampton County Court Manager.