MBNA/Restons taking me to court

[Redfish]

Today I received a Claim Form for MBNA from Restons, for Northampton County Court. I'm new to this so would appreciate any/all help. There doesn't seem to be a court date that I can see?

 

So this is my case: It's one of MBNA cut and paste jobs, and from what I've read on this forum time and again they've not been able to produce the original in court and have withdrawn at the last minute. My defence is based on that - I only signed an application form (they only mention receiving an application form in my SAR stuff, not an agreement). They have reduced this application form in size and pasted terms and conditions next to it, and given a heading to make it look like a regulated agreement.

 

As to the default notice. It is dated 8 Feb (Monday) and was sent 2nd class (so would have received on Friday 12 Feb), the date to remedy breach is BEFORE 25 Feb (a Thurs). So am I right in counting this up as too few days? Only 12 clear days. Can someone confirm?

 

Also I noticed on the DN it says "Paragraph 8 of that agreement provides that you must repay immediately the amount of any arrears on the account. you are in breach of that clause....". However no para 8 in the cut and paste 'agreement' - at the top of the pasted on terms it does say these are only terms 1, 2 &3 and that terms 4 to 19 are found in the full copy - but they did not send me the 'full copy' in response to my CCA request and nothing in my SAR. I can find an appropriate para 8 in the current T&Cs however.

 

In addition the current T&Cs do not match the application form as that the data protection information states that section 11 must be read before signing, but their current T&Cs have section 11 as altering the agreement, nothing to do with data protection.

 

These two T&C issues show that the DN does not relate to the 'cut & paste' agreement, and that the current T&Cs do not relate to the agreement, and that the absence of section 11 in the T&Cs at the time of the agreement mean the data protection is non compliant.

 

Can anyone see a problem with that reasoning?

 

 

Also now I have to fill out these court forms, I need to send a defence to the court. Can anyone help me writing that?

Edited March 30, 2010 by Redfish

[supasnooper]

You won't see a court date on the paperwork as you first need to complete the Acknowledgment of Service and indicate that you will defend all which you can do online.

 

This then gives you an additional 14 days to the 14 days allowed to submit a defence.....so work out when your defence is due by using the date on the claim form and add on 5 days for delivery plus 14 days and then add on a further 14 days.

 

Make a note of this date in your calendar, on your wall planner etc.

 

Next, send off a CPR 31.14 request to Restons asking for any documents mentioned in the Particulars of Claim.

 

Also read this link as well - http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

Did you get the Comms Log in your Subject Access Request from MBNA ?

If so, check all the dates closely.

 

I'd advise that you do some research on this duo on the forum to see how they play the game and read some top advice on the way.

 

Here's some bedtime reading but do seek out more -

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/170484-fairbyblue-mbna-restons-court.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/160395-restons-court-action.html

 

and also Robcags thread, although this is HFC & Restons, there is some top stuff from pt2537 in this thread -

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended.html

[Redfish]

Thanks Supasnooper, that's really helpful. I'll acknowledge online and then send off a CPR 31.14. I'll have a good read of those threads first.

 

Can you tell me, I'm thinking of trying to get a direct access barrister to represent me (not sure if I can find one who'll do it - but I've read that some difficult judges give more weight to barristers' arguments than LiPs') - if I do get a barrister, then do I still do all the defence and other stuff like Witness Statement etc myself like a solicitor would?

 

To answer your question about the Comms Log...yes I did get it...but that was back in June last year. Do you think I should send off another SAR?

[Redfish]

Can anyone tell me, I have had a default notice, but no termination notice. If they have issued a court claim against me for the full amount, is it safe to assume that they have terminated...or should I do a SAR again to find out if they have officially? I don't want to show my hand that they have a defective DN when I write my defence unless they have terminated.

 

Does anyone know?

 

PS Not having any luck with getting a direct access barrister who also does CFA...so looks like I'll have to be LiP.

[MandM]

Subbing, be back later .

 

What's the approx value Redfish, under or over £5k?

 

If they're taking you to court then it's pretty terminated

 

And a further SAR to establish dates of recent events would definitely help.

 

M

[MandM]

And yes, they need a compliant DN in order to demand early payment i.e. take you to court.

 

M

[Redfish]

Hi M

 

Thank you so much for looking in. I really do appreciate your help. I am sending an SAR off today.

 

The value is over 15,000 - with all their charges etc I think it's almost coming to £17,000 or so. So it's not a small claims.

 

Would you be able to count the days on my DN to tell me if I'm right in thinking it's 2 days too short? It is dated 8 Feb (Monday) and was sent 2nd class (so would have received on Friday 12 Feb), the date to remedy breach is BEFORE 25 Feb (a Thurs). Would really appreciate a second mind on this, just to make sure I haven't made a mistake.

 

I am a little worried about being an LiP so any tips on preparation and how to handle myself in court would be really welcome.

 

Thanks!

 

Best

Red

[MandM]

Hi Redfish. yes, I agree with your view on the dates .

 

I can post you a couple of threads on what to expect in court but you're a long way from that yet. I got my Northampton paperwork in July but didn't set foot in court until the following March - it can be a long process if no other applications pop up along the way.

 

If you need to get this 'latest' comms log info in preparation of your defence then you could ask under CPR18 which enables you to request further info NOT mentioned in the POCs.

 

M

[Redfish]

Thanks M, very nice to have the reassurance about the DN dates...and really appreciate you telling me how long the process takes...that was something I really had no clue of...was getting ready to appear in court within a couple of weeks:shock: A bit of a relief that it takes that long.

[diddydicky]

if the dn stated We" WILL " terminate if you fail to comply- then you can take them at their word- the issue of proceedings merely confirms that they have been true to their word and terminated the agreement

 

in fact, and to be pedantic- where a DN states we "WILL" - you can take this as a termination letter as from the date for compliance as contained in the DN - since they are clearly telling you what WILL happen rather than what might happen

 

it is a statutory notice and they are bound by what they write in it

[Redfish]

DD, they do say they "WILL" terminate on the DN...so that's good news! Thanks that's good to know!

[Pipster2797]

I am a little worried about being an LiP so any tips on preparation and how to handle myself in court would be really welcome.

 

Redfish I'm going to sub to this and help out as just been fighting against Restons regarding a HFC account and although I lost it was because I didn't prepare correctly enough so I will try and help out as much as I can with my experience of what I have learnt off Restons and some of it is beyond belief of what they will try and do but don't be scared by them as with a defective DN you can beat them. It's pretty much all I would have had to fight them on in court as they produced the real CCA in court.

 

Had I prepared enough and had the correct case law its something not just I feel I would of won but others feel it too and I'm preparing for an appeal so keep an eye out for my case and take heart from it as you will get some brillant advice from people like supasnooper, MandM and diddydicky and you will get it right first time to beat them!!

[Redfish]

Thanks Pipster

 

Yes, I can see that it is important to not only have the right documentation (and analysis of that documentation), but also it is important the way it is presented in court...I can see that it may be very easy for the other side to throw in some reference to case law or legal procedure and I wouldn't know what they were talking about - then I would start feeling lost and out of my depth. I think it is a state of mind, some people naturally would have the confidence to deal with that, and not feel undermined or attacked by the other side's tactics...especially as you say, if they had done enough preparation before hand...I'm not sure that I would in the moment.

 

Also I can see that some judges can be okay with LiPs, others can be dismissive of us, and it is just pot luck whether we get a decent one. And it seems many judges don't have a good grasp of the CCA, so they may tend to defer to the other side's barrister because of their specialist knowledge.

 

So these are all considerations we need to address. I had wanted to get a public access barrister who would act on a 'no win no fee' basis, precisely because I was concerned about issues of presentation and more extensive specialist knowledge. I thought I knew my case well enough to direct them. But it didn't seem easy to find such a barrister, so luckily I have now found a solicitor thanks to someone on CAG. That solicitor, based on seeing a scan of my DN, has now said they will take up my case on a 'no win, no fee' basis. So I'm feeling a bit relieved.

 

Of course, I'm still very concerned that it goes right, having taken it all this far. I think this solicitor sounds quite good, as the first thing I was asked for was the Claim Form, the DN and statements (funnily enough not the agreement) - so it seems as if they know their stuff, I don't know the barrister they will be using, so I have to find that out.

 

Good luck in your appeal Pipster, I hope it works out. I'll have a read of your threads.

[LB145]

sub

[LB145]

Hi Redfish - have you started on yoru defence?

[Custard Creams]

sub

[Redfish]

Hi Redfish - have you started on yoru defence?

 

Hi LB, also wrote on your thread. I handed my case over to a 'no win no fee' solicitor who has said that cases like this rarely go to trial...they are handling it all, I think primarily based on the faulty DN.

[LB145]

Hi LB, also wrote on your thread. I handed my case over to a 'no win no fee' solicitor who has said that cases like this rarely go to trial...they are handling it all, I think primarily based on the faulty DN.

 

I hunted for a no win no fee solicitor and couldn't get one, I would be really interested for another thread of mine that is with MBNA but on a much bigger scale.

[Redfish]

Just PMd you with the details.

[jamanji]

hi there

i would be really intrested in the solicitor as i think i will be needing them in the near future for MBNA

It would be much appreciated

J

[Redfish]

This is an update on MBNA and the solicitors...they lost the case for me! Even though it was pretty strong, I doubt very much if MBNA could have produced an original agreement in court, and the default notice was defective, so the most they could ever hope to get would be the arrears...however the solicitors have just sent a letter saying the case was lost and now we have to act to pay the entire sum to MBNA or make an arrangement with the court to pay a monthly amount based on our income. The solicitors won't even tell us how the judge's decision was reached, nor how the barrister argued, nor even who the barrister was! I have made a complaint to their Managing Partner...if I hear more I will post up here. But I can see how awful it is when a solicitor makes decisions and you are left out of the loop but have to pay the consequences.

[MandM]

Damn shame. Sorry to hear this Redfish.

 

And 'yes' - as much info as you can draw out of this and post up will help others.

 

Did you attend? or did the Sols do it all? Did the Sols not even give you a copy or 'your' defence?

 

Again, sorry to hear this. If appeal is not a route for you then work double hard now to minimise the repayments. Have you applied for a redetermination, done your I & E etc?

 

M

[Redfish]

Hi M and M, thanks for the commiserations. The sols did it all...but reading up on LB's thread, I realise the same may have happened to her as to me...the judge may have accepted a reconstituted copy...who knows. No, the sols did not give us a copy of my defence...so I should ask them that too, thanks.

 

I know the sols have asked us to act quickly to ensure we don't get a charging order on our house, to arrange payment...so I guess that is what you mean by redetermination??? So I need to do an income and expenditure?

[LB145]

Hi Redfish - another unbelieveable decision! - why are these laws in place if they can be ignored and overridden! - its in black & White!!!! - cant comment exactly on your case as you will need the info from your solicitors but I know first hand how blown away your feeling!

my experience was Restons will not contact you - they do not write to you about the case - I thought that they would send a letter claiming their victory but they didn't, I turned to in-laws in desperation for help but this took longer for funding to be in place and had to call Restons to let them know that the payment would be made in full but it would take two further weeks - he was very surprised that I would be making the payment and asked if I wanted to make installments - after this pleasant conversation I was really surprised that he went straight for application of charging order on my property.

 

Obviously you are going to have to take all this in because it really knocks you down - pick yourself up and be positive - find out how you make installments either by calling Restons themselves or applying to the court - I have no knowledge so i cannot advise.

 

Although I made the payment in full - again another solicitor mistake - the monies did not become available until 1 day after the 30 day deadline - so I still have the CCJ registered. My thoughts are with you - check out Wycombe's MBNA/Reston as you may find some info on there.

[MandM]

Hi M and M, thanks for the commiserations. The sols did it all...but reading up on LB's thread, I realise the same may have happened to her as to me...the judge may have accepted a reconstituted copy...who knows. No, the sols did not give us a copy of my defence...so I should ask them that too, thanks.

 

I know the sols have asked us to act quickly to ensure we don't get a charging order on our house, to arrange payment...so I guess that is what you mean by redetermination??? So I need to do an income and expenditure?

 

You need sight of the court order. The sols, as confident as they may have been, should really have had your I&E etc up their sleeve in case they/you lost. But that's water under the bridge so make the best of where you're at now! I'm guessing that they left it as 'payment in full by ......".

 

Whatever you offer Restons probably won't agree to so no doubt they'll be a further hearing to establish the amount.

 

My guess is that Restons will go for a CO quite quick so get the ball rolling ASAP on your side.

 

IF you can get your Sols acting for you that should help. As they made a bit of a lash of this they may even be willing.

 

M

 

PS. Here's a link to an Insolvency Helpline fact sheet. It gives you the info you need to get the payment levels set at what you can afford.

 

If the CO issue raises its head then hopefully you can deal with that with a few pointers on CAG.

 

Hope it helps.

 

http://www.insolvencyhelpline.co.uk/downloads/pdf-files/08_reducing_payments_or_suspending_a_bailiffs_warrant_on_a_county_court_judgment.pdf

Edited October 14, 2010 by MandM
Added PS