Is a DN issued whilst in breach of a S78 request invalid?

[Zak464]

Hi All

 

I am in court early next week and am desperately trying to structure a skeleton argument.

 

The background to this is that Restons on behalf of MBNA

Are taking me to court regarding a credit card balance - they issued proceedings whilst being in breach of a section 78 request.

 

They then applied for a summary judgement against me. Fortunately the Court dismissed their application on the grounds that their response to the s78 was illegible. (And thanks to some fantastic advice from this forum )

 

To be honest at that point I pretty much heaved a sigh of relief and hoped they would discontinue - now the final hearing date is less than a week away and im starting to panic

 

After much reading of this forum (again) it seems that an invalid DN can be a killer argument in court. Hence my needing some case law to point to the fact that issuing a DN whilst in breach of a section 78 request renders it invalid.

 

Also the default sum includes interest and charges added whilst the s78 breach was happening - is this enough to invalidate the DN.

 

I keep reading the CCA but the wording is tricky i.e. "the lender is not entitled to enforce the agrreement" - but i seem to recall reading a while ago that adding interest and issuing DN's does not constitute enforcement

 

Also MBNA have now issued me (& the court) a witness statement from a Dianne Powell along with documents provided by MBNA's "reconstruction experts" that she says are identical to the agreement I would have signed! (is this even relevant at this stage? - should I call her as a hostile witness? - if so how do i go about doing this?

 

My guess is that they are going to use the argument that a reconstituted agreement is valid from the Manchester/Carey case - but seeing as they have only come up with a ledgible (unsigned copy) a week before court will this even count?

 

Apologies for a long and rambling post but obviously after over a year of this MBNA nightmare i am very keen to avoid snatching defeat from the jaws of victory.

 

Any advice or pointers gratefully received - thanks all

[postggj]

How Can They Introduce New Evidence At This Stage

 

If They Are Doing This You Need To Demand To See The Original Agreement

 

I Would Be Sending A Letter To The Court To Strike Out This Witness Statement

 

to Enforce An Agreement In Court It Has To Be The Original Not A Reconstructed One

 

This Is An Abuse Of Process

[postggj]

Your Court Bundle As Well As The Sols Should Be In Court Long Ago

 

They Just Cant Add Any More With Out The Permission Of The Court

[Zak464]

Thanks Postggj

 

The court order following dismissal of the summary judgement gave a 28 day deadline to get in any docs that we would rely on in court - i got mine in on time but Restons didnt. The order gave a further 14 days to give any witness statements which they did get in on time but i must admit i have been wondering if the docs attached to the witness statement were allowable or not.

 

The judge also ordered that any originals would have to be produced in court - i cant see Restons /MBNA being able to do that (in fact this whole reconstituted agreement nonsense further implies that they dont have one).

 

If they dont follow the court order is that enough for them to lose on the day?

 

I am working away from home this week so cant add any scanned docs unforunately