County Court claim against Restons/MBNA Help required please!

[keith4444]

Hi guys/ladies

 

I am posting on behalf on my Father in Law who has been served court papers By Restons from the Northampton BCC regarding an MBNA account he has in dispute.

 

Historical Timeline as follows:

 

3rd October 2009 sent CCA to MBNA

Nothing from MBNA so placed account in dispute on 18th October 2009 (stopped payments)

Received illegible Application form from MBNA

Replied to MBNA stating account still in dispute as application form not valid.

16th November MBNA sent Default notification

9th December recieved reply from MBNA stating they believe they have complied.

10th December letter from MBNA stating account will be passed onto 3rd party

5th Jan Further default notification received from MBNA in a different format

2nd Feb First letter from Restons chasing Payments

26th Feb Court papers received from Northhampton BCC on behalf of Restons/MBNA:

 

An acknowledgement of service was submitted online this weeks with the intention of defending the FULL claim and also the CPR 31.14 letter Here was sent to Restons.(I assume this was the correct response???)

Today this reply from Restons was received:

 

 

How do we go about replying to this one? I have tried to search on here but to no avail. Can anyone help??

 

Thanks in advance

 

Keith

[vjohn82]

Hi,

 

They are essentially correct because all bulk centre claims do not require paperwork to be attached because they are generally submitted online.

 

Do you have the Default Notices (both of them) which you were sent and any other documentation to hand that you can provide? I can then assess the best route for your defence.

[vjohn82]

Hang on... just noticed the POC...

 

"on or about"???

 

Wierdos

[DonkeyB]

A CPR 18 request would mean they had to reveal everything in the PoC. It does mention a contract.

 

However, 31.14 also applies to anything they will seek to rely on in court.

 

So, clearly, they don't want to offer any evidence other than the PoC? How weird...

[DonkeyB]

I think this is one where the first step should have been to ask that they issue a proper PoC and give them seven days to do so, otherwise you will apply for strike out.

 

It's a nonsensical response.

 

The account has not been sold, clearly, but MBNA have terminated. Can you post a copy of their DN? If there's a flaw, all well and good...

[lilly white]

so they want to play edit to suit

 

Draft / Defence

 

1 The Defendant denies ever having been indebted to MBNA Europe Bank Limited (MBNA) and denies any contract for credit has ever been advanced to him/her by MBNA.

 

2 Without prejudice to the above contentions, the Defendant asserts that in particular, given that the original of the liability is said to be a

over due balance by " mbna (which is a person / entity / company not known to the Defendant), it will be the case, taking into account the amount of the liability, that the transaction and the underlying agreement (if any) between mbna credit card and the Claimant would be regulated by the terms of the Consumer Credit Act 1974.

 

3It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no contract- that any such contract as exists does not comply with the Act. It is impossible to plead further in the absence of a pleading by the Claimant as to what the agreement was and what its terms were and the Defendant reserves the right further to plead Particulars of failure to comply in the event that the Claimant amends it Particulars of Claim to allege the agreement

 

4The Claimant's claim to be entitled to £xxxxxx for debt, to statutory interest or to any monetary or other relief of any kind is denied.

 

I BELIEVE THE FACTS SET OUT IN THIS DEFENCE ARE TRUE

 

Signed:

 

Dated:

Edited March 19, 2010 by lilly white

[keith4444]

Hi Guys,

 

Sorry for the delay in replying but MANY MANY thanks for your help so far!

 

Here's the 2 default notices he received (in order):

REMOVED

 

Here's the application form (sorry "agreement"):

 

REMOVED

 

and here's a load of (what appear to be generic) Ts and Cs that came with the above application form:

 

REMOVED

 

Thanks again for all your advice on this its very much appreciated!

Need to get the defence in ASAP

 

Keith

Edited March 21, 2010 by keith4444

[mandyjayne]

Keith...on the first page of the Ts & Cs it shows the new £12 charge for a returned DD or bounced cheque...so these are not the original ones...as it looks like this card was issued in 1997!! this could be the statute barred route??

 

hope this helps and im sure someone else will be along to confirm for you

 

good luck

 

MJ:)

[keith4444]

Thanks for your reply MJ

 

Yes your correct this card was issued in 1997, it was still being paid up until it went onto dispute though so not sure of the statute barred route will apply?

Also I agree those are not the original T&C's as the original ones (and only ones that are relevant)are on the back of the application forms I have posted?

 

Thanks again

 

Keith

[mandyjayne]

yes keith sorry just read your "history" paragraph... not SB!

 

I received exactly the same MBNA application form that they tried to pass off as a full blown credit agreement..in 2008...mine was eventually struck out i will post a link to my old one if you think it may help, mine was looked at and i was told it was unenforcable.

 

MJ:)

[keith4444]

Yes I'd like to take a look at that please MJ. Was the reason it was struck out due to it being Statute Barred?

Keith

[mandyjayne]

Hi keith...

 

No mine was not SB..they were struck out for non compliance of an "unless" court order.

 

Its a bit long but hopefully some info in there somewhere that could be useful.

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/167654-help-ccj-charge-home.html

 

MJ:)

[Josie8]

Hi Guys,

 

Sorry for the delay in replying but MANY MANY thanks for your help so far!

 

Here's the 2 default notices he received (in order):

 

removed docs

 

 

Here's the application form (sorry "agreement"):

 

removed docs

 

and here's a load of (what appear to be generic) Ts and Cs that came with the above application form:

 

documents removed

 

Thanks again for all your advice on this its very much appreciated!

Need to get the defence in ASAP

 

 

 

 

Keith

 

Iwould advise that you remove these as Restons patrols this forum and will reasonably be able to ask why you are asking them for disclosure when you already have the documentation

Edited March 21, 2010 by supasnooper
Removed documents

[keith4444]

Have removed as advised although I did remove all personal info so they would not be able to know who it was (remember this isnt even my agreement but someone elses) Also you have quoted my post so I cannot edit yours?

 

Keith

[supasnooper]

I've removed the documents in Josie8's post.

[Josie8]

Have removed as advised although I did remove all personal info so they would not be able to know who it was (remember this isnt even my agreement but someone elses) Also you have quoted my post so I cannot edit yours?

 

Keith

 

Linda tipping from restons would have been able to trace it

[supasnooper]

Thanks for spotting this Josie8.

 

Keith444 - Unfortunately in your haste to press Restons, you have erred slightly as to the composition of the CPR 31.14 letter.

You have quite rightly asked for the agreement (or contract) as referred to in the Particulars of Claim.

 

However, the rest of the documents, minus the "Comms Log", should have been requested under a CPR 18 request.

 

You may wish to reply to Miss Tipping asking for inspection of the contract and point out under CPR PD 16.7(3) that a Judge and yourself would expect them to produce the original in court for inspection.

 

 

To obtain the Comms Log or Customer Information System documents, you will need to send a Subject Access Request to MBNA.

This costs £10.00 and send by Recorded Delivery. Template S A R letter here - The Consumer Forums - Debt collectors

Edited March 22, 2010 by supasnooper
typo

[keith4444]

Hi Supasnooper

 

Many thanks for your reply and explanation. Is there a suitable template I could use from here to speed up my reply? Also time is running out for my defence. Can you (or anyone else watching!) assist me on this or point me in the right direction please?

 

Many thanks in advance

 

Keith

[keith4444]

BUMP

 

Anyone able to help with the defence please?

Many thanks in advance

Keith

[supasnooper]

Unfortunately defences aren't templated as each case is different.

 

Your defence should counter the Claimants points listed on the Particulars of Claim.

 

If Restons have not supplied you with a copy of the contract then you could possibly use the defence written by Lilly white at post #6.

If you do use this, please do research what has been said and why.

I say this as you may have to explain this to a Judge.

 

If they have supplied the contract (agreement) then you would have to construct a defence based on the technical aspects of the contract.

[keith4444]

Hi Supasnooper,

 

many thanks for your help again! The issues my Father in Law has are as follows:

 

1) He was issued with an "Important Default Notification" then a "default notice" I'll post these below as I think they cannot be traced back to him:

 

 

Now is the first one an actual valid default notice? If so I'm 99% certain its not been enforced correctly and the 2nd is null and void.

 

 

2) You ask if he has been supplied with an agreement, but he has only ever received an application form which doesn't have the prescribed terms on it. So do I mention this or just the fact they still haven't supplied a valid agreement?

 

Thanks for your help again

 

Keith

[supasnooper]

The first scan is just a default notification that MBNA are now required to send out when the account lapses into arrears.

 

The second scan is the Default Notice that is issued under s87 of the Consumer Credit Act 1974.

 

Do you have the envelope that the second letter came in ?

 

I ask this as MBNA usually send out their Default Notices by UKMail Special delivery which is deemed a 2nd class postal service.

 

Moving on the Default Notice would be deemed ineffective as they have failed to give you the 14 clear days to rectify the notice.

 

A Judge would take the date of the DN as the date of postage. We then add on 4 working days for 2nd Class post.

Working days are Monday to Friday excluding Public Bank holidays.

 

So, it would be deemed served on Monday 11th January. You are then entitled 14 clear calendar days to rectify the DN which would allow you until Monday 25th January 2010 to pay the arrears stated on the Defaukt Notice.

 

MBNA have only allowed you until Saturday 23rd January to rectify and as such, have failed to follow the law.

 

For more info, read the link below -

 

B_R_W's post on DN's

[keith4444]

Hi Supasnooper

 

Thats excellent news many thanks for that. I had done some reading up on timescales but was not aware of the 4 days for 2nd class rule.

 

Also I would like you to take a look at the application form he has been sent, would it be OK to pm this to you as I have been warned about posting it up here?

 

Let me know please

 

Keith

[diddydicky]

A CPR 18 request would mean they had to reveal everything in the PoC. It does mention a contract.

 

However, 31.14 also applies to anything they will seek to rely on in court.

 

So, clearly, they don't want to offer any evidence other than the PoC? How weird...

 

i think you have that ar*e about face donkey!!

[DonkeyB]

Yeah, I have. Whoops! Sorry! Too many oats that day.

 

But I think you mean 'buttock about muzzle'. Remember, I am not human.