wycombe V Restons (MBNA)

[foolishgirl]

 

I will get two rough defence statements drafted - one if Reston's do not respond to my CPR 31.14 and CPR 18 requests where I will file an embarassed defence and go for the Summons to be struck.

 

Secondly a defence statement if Reston's do produce evidence challenging the validity of any contract documents if they do not bear my signature. I strongly suspect they do not have the original contract and I will probably receive some cobbled together garbage. Anyway I am going to work on these rough drafts today so I have something to work from.

 

 

Excellent idea Wycombe, preparation is the key :)

 

Don't work too hard though if you're still recovering, a relapse is definitely not a good idea.

[wycombe]

Again my thanks foolishgirl.

 

I have spent most of the day trawling through various parts of the forum and have found much useful information. But I do not want to tread on any toes by using someone elses outlined defence strategy. I have cut and paste an outline defence that I can change and alter depending on what Reston's do in regard to my information requests re CPR 31.14 and CPR18. If I need to give credit and acknowlegement for what is after all mostly someone else's research and hard work this I am willing to do - except unfortunately I did not make a note of whose hard work I am using as a basis! But will search it out if necessary.

 

The defence strategy I have located is quite long and quotes a lot of case law which I will need to look up and check. Presumably such case law is easy to locate (using Google?). I have already located the Consumer Credit Act of 2006 as I wanted to check and confirm that it is indeed the 1974 Act that applies on agreements before 2006. So far this has confused me so a pointer to the correct part of the Act would be welcome if anyone can point me to the correct part. When producing a defence mentioning case law to back up an argument would it be advisable to mention the case law and then attach the salient points as an appendix to the defence statement?

 

Basically I do not want to produce a defence statement that is too lengthy if certain parts can be referred to in appendices. Anyway I am becoming cross eyed now after reading and trying to absorb so much information - so will return to the fray tomorrow.

[foolishgirl]

You can use any defence you find on this site that suits/can be amended to your own needs Wycombe. You do not have to credit to anybody, most are 'cribbed' from another anyway & members post on here for the benefit of others.

 

You are right to be wary of quoting long case law etc. in your defence. Short & snappy is more likely to get your defence acknowledged by a DJ with a large case load & you should reserve all the expounding until your witness statement. As yours would seem to be a relatively simple case, keep it as concise as you can.

 

Of course if you have to file an embarrassed defence, it can just be matter of a few lines i.e. no amended POC served, no docs supplied, no case to answer!

[supasnooper]

You may wish to read the info in this link, just in case Restons don't comply with your CPR 31.14 request - http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

[wycombe]

Thanks to both supasnooper and as always foolishgirl for their input.

 

I have several various scenario rough defence statements drafted which can be altered and played with depending on that responses are forthcoming from Reston's. What I do not want to do is be in a panic when the date looms to actually file a defence! Whilst waiting I will continue to trawl through the various forums on here and try to familiarise myself with some of the case law mentioned. I have now managed to work my way into the 2006 Consumer credit Act and found the bit about the 1974 Act being in effect on pre 2006 agreements. Starting to find it easier to understand all the legalese language as well!

 

I may, also, have found an organisation I can use to get a legal opinion of what I am doing as I go along as well. (Free I hope!) This is the 'Community Legal Service' based in Sheffield and run by 'Shelter'

 

Anyone have any experience using these people? If there is any interest I can post further details - but this is, it appears, for people like me with an almost non existent income (ie on State benefits of one sort or another).

[foolishgirl]

 

I may, also, have found an organisation I can use to get a legal opinion of what I am doing as I go along as well. (Free I hope!) This is the 'Community Legal Service' based in Sheffield and run by 'Shelter'

 

Anyone have any experience using these people?

 

I don't know anything about them Wycombe but be aware that legal services organisations deal with all sorts of legal matters & whilst their advice may be sound, they may not have the specialised knowledge of the CCA & its various offspins that you will need to fight your case. Bit like going to a GP for a heart operation!

[citizenB]

Summons was issued on 26th March and received 31st March. It was sent by ordinary mail. My ackowledgement was sent by Recorded Delivery 31st March. It looks as if I have until about the 20th April or thereabouts to get a defence statement ready.

 

 

 

 

Hi wycombe, welcome to CAG:D

 

Just to let you know that you are allowed 33 days from date of ISSUE to submit your defence.

 

That is

 

Date of Issue + 5 days for service + 14 days to acknowledge + 14 days to submit defence.

 

By my reckoning you have until 28th April to submit your defence.

 

If your defence is less than 8,000 characters you can do it online by using the password given on your claim form

 

If over, then you will need to send it via Special Delivery sending a copy to both the court and the solicitors.

 

Have you acknowledged service. If not, do so, it is important you let both the court know that you are intending to defend.

 

Sorry to hear you are in so much pain. if you dont receive free prescriptions then you can buy a yearly credit. This can be paid for monthly. .works out to about £10.00 per month.. it is far more economical if you have loads of prescription drugs.

[wycombe]

Thanks foolishgirl - I love the GP analogy!

 

On the phone these people have appeared quite helpful in respect of admitting they knew little about the statutes relating to debt enforcement etc - but they have solicitors and researchers who will give assistance on the telephone. In other words I place my query and they will ring back once they have done the research. At the moment they cannot do anything concrete as I have only just filled in the forms necessary for their assistance and have to wait to see if I qualify (Unfortunately it seems my wife's income seems to come into play again here!). For me any advice/help is welcome. But I do appreciate your point as I have found the advice on here far more helpful and knowledgeable than anywhere else!

 

Thanks also citizenB for your input regarding the time I have to produce my defence statement.

 

Is it advisable to get this in at the last possible moment? It will not be too difficult for me to do this as my local County Court is only a couple of miles from where I live. Whatever I do is dependent on what Reston's do.

 

Thank for the information regarding prescriptions - this I did not know and I will bear this in mind for the future. At the moment I am recovering from one operation (not life threatening - but painful) as as the days pass things become easier so I will soon be able to ditch the painkillers. But I am on the waiting list for a further operation.

 

This may raise an interesting question if I am called in hospital when my case in Court comes up - presumably the hearing would just be postponed until I am fit to attend? My health is more important to me than satisfying MBNA and Reston's.

[foolishgirl]

Is it advisable to get this in at the last possible moment? It will not be too difficult for me to do this as my local County Court is only a couple of miles from where I live. Whatever I do is dependent on what Reston's do.

 

Leave it as long as praticably possible to give Restons time to respond although they are not noted for meeting deadlines!

This may raise an interesting question if I am called in hospital when my case in Court comes up - presumably the hearing would just be postponed until I am fit to attend?

 

When the court send the AQ, you fill in on there what dates you will not be able to attend. You may know by then what date you are due to go into hospital but if you don't & the hearing date clashes with your hospital dates, you can ask the court to reset the date.

 

 

FG

[Meldrew]

I may, also, have found an organisation I can use to get a legal opinion of what I am doing as I go along as well. (Free I hope!) This is the 'Community Legal Service' based in Sheffield and run by 'Shelter'

 

Anyone have any experience using these people? If there is any interest I can post further details - but this is, it appears, for people like me with an almost non existent income (ie on State benefits of one sort or another).

The CLS is about as kosher as you could get. "The Community Legal Service is a network of LSC funded organisations and advice providers that fund, provide and promote civil legal aid services." The Legal Services Commission manages legal aid for the Ministry of Justice. Its consumer self-help portal is Community Legal Advice. Rather odd to refer you to Shelter, but they seem to have access to good debt advice.

 

If you don't qualify for legal aid, firstly check your household insurance for legal cover. If you don't have it, or it's insufficient, as well as CAG's help your local CAB has masses of free information on debt issues and access to bespoke debt advice (it looks from an earlier post that you might have already been to National DebtLine or CAB), and the county court has consumer-friendly leaflets on court procedures. Download county court forms & guidance here. Just grab whatever help you can. If you need help with the case in court, try the CAG 'Buddy' System from the link at the top of this page, or your CAB should know of a local no win no fee solicitor.

 

CCCS and PayPlan can manage payment of debts that you've accepted, but they're funded by the credit industry so won't examine or challenge liability. Debt management firms are in it just for profit, and they won't challenge debt validity either. Don't even think about going anywhere near the commercial firms offering to clear your debts. They're highly unlikely to do what they promise, and you'll end up losing extortionate up-front fees. Same warning applies to IVA managers, if you ever want to consider that.

 

Adding to foolishgirl's excellent advice, don't try to argue legal points that you don't fully understand - you'll just trip yourself up if asked to explain your case in court, possibly handing judgement to the claimant by lack of credibility. Put yourself in the claimant's shoes: do you understand the defendant's argument; do you think he understands it? The more lengthy, convoluted and complicated your argument the harder it is for the claimant and judge to follow - and the more scope for them (and yourself) to misunderstand. Restons will by now have had quite a few similar defences from CAGgers, and I guess have probably figured out how to deal with them.

 

Always remember - KISS (keep it simple, stupid!).

[wycombe]

Again thanks to both foolishgirl and meldrew for their advice. Things on my side are fairly quiet as I wait to see what responses are forthcoming from Reston's. So I am using the time to read up on as much as I can and make notes of anything I think is or may be important and putting this into a loose leaf file indexed according to the point at issue.

 

I must admit to extreme nervousness about the whole thing as I have never been in a similar situation before and all this is a totally new experience (and eye opener!). To calm down I just think of a far worse situation I was in when working in Kuwait during the Iraqi invasion and being imprisoned by Saddam's regime. In retrospect this situation is far easier - at least they can't shoot me for debt!

 

As soon as I hear from Reston's I will post the info here for comments.

[foolishgirl]

A

 

To calm down I just think of a far worse situation I was in when working in Kuwait during the Iraqi invasion and being imprisoned by Saddam's regime. In retrospect this situation is far easier - at least they can't shoot me for debt!

 

 

OMG wycombe, this is a flea on your shoe!!

 

BTW remins me please - when is the deadline for your CPR31.14 up & what date do you have for the defence filing deadline?

[wycombe]

My deadline for filing a defence is 28/4/10 but I will file a couple of days before. Presumably I send a copy to Reston's? By Recorded Delivery?

 

The CPR 31.14 request was received and signed for by Reston's on 6/4/10 so presumaby I should get an answer on or before 13/4/10

 

The CPR 18 request was delivered and signed for on 1/4/10

 

"OMG wycombe, this is a flea on your shoe" - So my wife keeps telling me!! She and the children were with me but Saddam let them go! Even so I still find all this debt/court/harassment business very unsettling. Anyway I try and remain optimistic - where there is life there is hope!

[foolishgirl]

 

The CPR 31.14 request was received and signed for by Reston's on 6/4/10 so presumaby I should get an answer on or before 13/4/10

 

 

No presumably about it, just a should!!

[wycombe]

Just a quickie:

 

When I file the defence - does this go to Northampton? Or my local County Court? I think I read somewhere on here it goes to the issuing court then the case gets transferred. But I have been doing so much reading lately I may be getting a little cross eyed!

[Jeff2000]

Just a quickie:

 

When I file the defence - does this go to Northampton? Or my local County Court? I think I read somewhere on here it goes to the issuing court then the case gets transferred. But I have been doing so much reading lately I may be getting a little cross eyed!

 

 

Hi,

 

 

If you have registered your intent to defend, you should receive an acknowledgement from the Court. This will or rather, should include confirmation that the case is to be transfered. At least this is what happened in my case.

 

Others will correct me if this is no longer the case.

 

You could, of course, give Northampton a ring tomorrow morning to find out what is happening with your case.

 

 

Best wishes, Jeff.

[wycombe]

Thanks Jeff2000. I thought what you stated but then I was trawling through another part of the forums and came across a post where the defendant sent his defence off to Northampton so made a mental note to double check where it went.

 

If I get nothing in the mails shortly I will do as you say and give then a ring.

[foolishgirl]

Jeff, I think the format now is that the defence has to be filed with Northampton who will send an AQ out before it gets allocated to the Defendant's local court.

 

As it looks as though yours will be an extremely short defence Wycombe, it can be done online (lengthy ones require posting as the no. of letters in the text box is limited). In fact, if you have the cash, I would suggest putting in an application for a strike out way before the defence if they fail to respond to your CPR requests. Otherwise you will need a short sharp embarassed defence with an applic. for directions & strike out for non-compliance on your AQ.

[wycombe]

Reston's have finally pulled their finger out and sent me something:

 

http://i1007.photobucket.com/albums/af194/toschka/Copies%20of%20legal%20mail/09April2010.jpg

 

I'm hoping I have done this correctly as I have never used Photobucket before!

 

I think what they stated is a lot of bullsh*t and I believe I can just ignore this. Comments most welcome!

Edited April 9, 2010 by wycombe
typo

[wycombe]

The link above is to my CPR 31.14 request to Restons' and their response to it!

 

Also received was their response to my CPR 18 request:

 

http://i1007.photobucket.com/albums/af194/toschka/Copies%20of%20legal%20mail/09April20102.jpg

 

Do I need to respond to this or just ignore it and argue that they are being totally uncooperative when I file my defence?

 

Again all comments welcome.

[wycombe]

Oh - and I forgot to thank foolishgirl for her commnets re going for a strike out.

 

Money is very tight for both myself and my wife but I may be able to get the money from a good friend (borrow it) - I think the fee is £75? A link to the necessary paperwork for this would be most welcome though I will have a search as well. I have to go out to visit my doctor so will get onto this later.

[emandcole]

Oooh, get them.

 

Miss Tipping loves her little letters doesn't she? She's correct with the first letter, as it went through the bulk centre they don't need to provide copies of anything mentioned in their PofC but that doesn't mean they don't have to provide them.

 

As for the second letter it's none of her business why you want this or what you intend to do with them. Ultimately it's them who've initiated litigation so you have every right to arm yourself with whatever relates to the case, the fact it's a pain in the harris for them is not your fault.

 

You've asked for them, they've made a frankly pathetic excuse to delay sending them. Appears that they're struggling so far, exactly what you'd expect. Seems as if you're supposed to be 'in awe' of the fact they're solicitors and you're also supposed to just roll over and play dead. If they fail to provide you have nothing to answer.

 

I'd write a polite letter back reminding them you have every right to view and obtain anything and everything to do with the case and if they're refusing to provide them you'll simply report that fact to the court. It is not for them to assess what is and isn't of worth to this case or to ascertain your ability to understand and utilise such information, that is your business and yours alone .

[wycombe]

I have drafted a quick reply to send to Reston's and would appreciate someone casting a beady eye apon it to make sure it is OK to send and I have not made any errors. If OK I will mail it tomorrow morning.

 

http://i1007.photobucket.com/albums/af194/toschka/09April20107.jpg

[foolishgirl]

Don't these people make you wild!!

 

Send them this or similar, wycombe...

 

 

DS

 

Claim Ref:

 

I am surprised at the content of your correspondence in response to requests for information under CPR31.14 & CPR18 dated xxxx & xxxx respectively.

 

May I remind you that you instigated this claim against me & that in order that I am able to submit a comprehensive defence, I require you to expand on the inadequate particulars of claim you submitted & demonstrate that your ability to prove your entitlement to the sum claimed.

 

1. The claim form refers to 'a contract dated on or about 08/01/2004'

 

I am aware that a copy of the alleged contract does not have to be attached to the claim form when issued through Northampton CC. I am therefore requesting you provide a copy of it now.

 

2. The claim form refers to '01/03/2010 Default balance xxxxx'

 

I require your evidence that this default balance existed, that it was accurate & that a Default Notice was issued before the account was terminated & you proceeded to enforcement.

 

3. The claim from refers to 25/03/2010 Interest xx.

 

I require proof as to how this sum was caluclated & therefore require you to produce all statements from the inception to date of this alleged account.

 

You are required to provide me with this information under the CPR requests submitted to you & I consider your response prevarication.

 

I therefore have to inform you that unless the above information is supplied to me by xxxxx (give them 10 days to allow for postage) I will make application to the court for an appropriate order, the costs of which will run against you.

 

YF

[foolishgirl]

Whoops, you beat me to it