MBNA county court Summons " Help Please

[manchestman]

So what will they try next, banning the use of reference libraries.. logging into bailii ? They really are on thin ice with that kind of thinking.

Makes you laugh really, I mean just imagine if judges starting points were that financial institution's written claims and statements were treated as gospel and LIPs had to prove every part of their defence ... as if!

[Peterbard]

Sorry to hijack this thread but I need and urgent question answering and Peterbard's message box if full!

 

I have a court hearing on Wednesday with Restons/MBNA similar to DizzieDiva (and quite a few other people on here!) I have just come across a thread on CAG where Peterbard makes comments on Cancellable agreements (below) which I need urgent info on. The section he wrote was;

 

This section of the Act forbids the court from enforcing any, “cancellable agreement” if the debtor has not received the required information to be able to cancel the agreement if they wished.

A cancellable agreement is one that gives the debtor the extra right (For a short time) to stop the agreement from continuing even after it has been executed (signed by both parties).

This section 127(4) will not apply to all agreements because not all agreements are cancellable so the first question is;

 

IS MY AGREEMENT CANCELLABLE

 

This depends not only on the type of agreement you have but on the way the agreement was discussed (The Antecedent Negotiations) before the agreement was executed. These are set down in section 67 of the ACT.

 

The Following are agreements that are not cancellable on a conventional Regulated Agreement:

 

A. Agreements that are secured on land.

 

B. Agreements that are signed at or within the creditors premise or place of work.

 

C. Agreements that have been signed by the detor without any prior face to face discussion with the creditor.*

 

So any agreement executed under any of the above conditions is immediately binding on both parties.

 

*In the case of condition C. many credit providers, particularity credit card companies voluntarily give cancellation periods and if this is the case it will be mentioned on the agreement.

Usually in a box just next to the signature box, if this is the case they are to be treated in exactly the same way as if they were conventional cancellable agreements.

 

Restons are saying in their Skeleton that the included Cancellation rights in my agreement are only "contractual" and not "statutory" and, therefore, what they need to provide in Court only relates to a "Non Cancellable" agreement as their was no preceeding discussions? Having read the passage above can I just ask if anybody knows if Peterbard's comments are based on any law/ruling/OFT guidance I could use in court to back up what he has said?

 

Apologies again for the hijack but any info (or pointers to the right thread) would be greatly appreciated!!

 

Eggboxy1

THis quote was take from a piece i wote some years ago before Rankine and was the percieved view at the time.

 

Rankine alterd this by saying that the obligation to give copies in tis case was not statuory but only of the regulations and therfore not subject to sectoin 127. It is still a beach of section 65 though.

 

As for the other comments

Please grow up

 

Peter

Edited February 16, 2011 by Dodgeball

[Peterbard]

Hi

Sorry and yes the quote was taken dirrectly from the OFT guidline available at the time

[DizzieDiva2010]

You all just entertained me for half hour lol good read. The Judge i had at my last hearing was in favour of the internet being of assistance to a lay person.

[DizzieDiva2010]

To Judge ********

 

I write to you as my trial of this claim has been allocated to the fast track because Reston Solicitors state that the claim is not suitable for the small claims track as there are technical consumer credit act issues involved which are not straight forward and could not be dealt with at a 1

hour hearing for summary judgement.

I inform you that I agreed in principle 2k contained within a Tomlin Order and I am making payments and therefore I disagree that the case cannot be dealt with in the Small

Claims Court.

Reston Solicitors estimate the hearing trial will take 1 day, they have put that their costs incurred to date are £2000 and they estimate the overall costs are likely to

be £6000. The costs far out exceed the debt amount.

I am trying my best to clear my debt and cannot afford to incur these huge costs and ask that the claim be dealt with in the Small Claims Track considering the amount is

£2500.

Any Advice please members?

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Can I send this letter to the Judge or not?

Edited February 21, 2011 by DizzieDiva2010

[DizzieDiva2010]

 

 

 

 

Above Second Witness Statement from Reston Solicitors.

 

* I now have the N170 to complete by 7 March 2011.

Edited February 21, 2011 by DizzieDiva2010

[gh2008]

Ah!!!! N157 so it as been allocated to Small Claims Track after all.

 

Andy

 

Are you sure it has been allocated to Fast Track DD??

 

If it is Small Claims and you have all but admitted teh debt and agreed to repay it and all you are fighting over is the repayment schedule then I would be going to Court arguing VERY LOUDLY that the Claimants are clearly wasting both yours and the Court's time !!

 

They should bet no costs other than the normal costs allowed on the SCT - and even that is pushing it IMHO due to their behaviour

[gh2008]

Given time and energy you could rip the WS to shreds as it has clear errors and it a pitiful WS imo full of holes .......

[AndyOrch]

Its Fast Track DD posted info from other threads (SCT) but then she constantly deletes /modifies posts which confuses

readers (as you have been)

 

Andy

[gh2008]

Its Fast Track DD posted info from other threads (SCT) but then she constantly deletes /modifies posts which confuses

readers (as you have been)

 

Andy

 

Thanks Andy for clearing that up - makes it even more interesting a the the reasoning behind their request then

If I were being cynical I would say having had a day in Court already they fancy their chances of being able to treble their money .......

[AndyOrch]

Quite GH but it shouldn't be FT anyway and they have already taken a pasting at SJ hearing.

 

Regards

 

Andy

[DizzieDiva2010]

Its Fast Track DD posted info from other threads (SCT) but then she constantly deletes /modifies posts which confuses

readers (as you have been)

 

Andy

 

Sorrrrrryyyy!

Yes the MBNA case has been allocated to the fast track. What do you think of the letter i want to send to the Judge?

[DizzieDiva2010]

Hi gh2008, why do you think it is full of holes please explain.

[gh2008]

Well, if you read the WS carefully they are pretty glaring

Look at Para 2 and ask yourself

How does the writer know this?

Where are the Prescribed Terms and where are they referred to in the agreement

Are all the documents mentioned in that Para being produced?

 

Those are the sorts of questions you should be asking yourself as you read it - if those questions are answered fine - if they are not then why not.

 

Big hoo haa about date of receipt of the DN whereas what should actually be being discussed/proved is the date of service as that is what matters NOT date of receipt (as that is impossible to prove without it being RD or SD) and business class with UK Mail - have you checked that out on their website yet??

 

Same with the 'hardship agreement' if there is an agreement how can they then take action if you are complying with that agreement - it is nonsense the T&C's of the agreement have been modified by contract with the new hardship terms

 

Should there have been a new DN after breaching the hardship terms agreement ....??

 

There's stuff like that throughout the WS it is not very good at all

 

BUT these arguments need a lot of work and understanding and the ability to understand and argue them against Counsel

 

And don't you think that the methods being used by the Creditor are a bit unfair??

Have a read of the OFT publications for debt collecting

Is there not an Unfair Relationship here

 

But again a lot of work and research required

[DizzieDiva2010]

Well, if you read the WS carefully they are pretty glaring

Look at Para 2 and ask yourself

How does the writer know this?

Where are the Prescribed Terms and where are they referred to in the agreement

Are all the documents mentioned in that Para being produced?

 

Those are the sorts of questions you should be asking yourself as you read it - if those questions are answered fine - if they are not then why not.

 

Big hoo haa about date of receipt of the DN whereas what should actually be being discussed/proved is the date of service as that is what matters NOT date of receipt (as that is impossible to prove without it being RD or SD) and business class with UK Mail - have you checked that out on their website yet?? I actually recieved the DN in a second class post Royal Mail envelope on the 13th March 2010. They have said they sent it first class UKmail!

 

Same with the 'hardship agreement' if there is an agreement how can they then take action if you are complying with that agreement - it is nonsense the T&C's of the agreement have been modified by contract with the new hardship terms

 

Should there have been a new DN after breaching the hardship terms agreement ....?? I had no choice when breaching the hardship terms agreement due to waiting for my benefit claim to be dealt with. Also I had to close down my Natwest current account and set up a new basic bank account to be able to set up a direct debit for £5 per month to pay this hardship payment. So what i did was when i recieved my benefit i made a payment of £20 and £25 from my second payment which would cover me for a while however MBNA would not accept this explanation. They advised me over the telephone to contact a MR Green via email attaching my income and expenditure, of which i did on three occasions and they ignored me. The next i recieved a county court summons!

 

There's stuff like that throughout the WS it is not very good at all

 

BUT these arguments need a lot of work and understanding and the ability to understand and argue them against Counsel

 

And don't you think that the methods being used by the Creditor are a bit unfair??

Have a read of the OFT publications for debt collecting

Is there not an Unfair Relationship here

 

But again a lot of work and research required

 

Thanks for your input, i will read through the witness statement and i agree there has been an unfair relationship here. I will take a look at the OFT publications for debt collecting.

Edited February 21, 2011 by DizzieDiva2010

[DizzieDiva2010]

How do time orders work & can I apply for one?

Edited February 22, 2011 by DizzieDiva2010

[Chipmeister]

Basically, in their Witness Statement they are saying that the hardship programme is there to assist, then in the following paragraph, admitting that it is not a binding contract and pretty much a waste of time as they will take legal action anyway! How can they possibly claim to be assisting by agreeing to the hardship programe when in order to make what they call a "formal agreement" a debtor has to be in a position to pay either more than they can afford or a lump sum apparent full and final? That's what I would call Hobson's Choice - if you are stuggling you can't fulfill either criteria! Refer the Court to the OFT tap on the nose our friends at Maryland Bank of North America received recently.

[DizzieDiva2010]

Basically, in their Witness Statement they are saying that the hardship programme is there to assist, then in the following paragraph, admitting that it is not a binding contract and pretty much a waste of time as they will take legal action anyway! How can they possibly claim to be assisting by agreeing to the hardship programe when in order to make what they call a "formal agreement" a debtor has to be in a position to pay either more than they can afford or a lump sum apparent full and final? That's what I would call Hobson's Choice - if you are stuggling you can't fulfill either criteria! Refer the Court to the OFT tap on the nose our friends at Maryland Bank of North America received recently.

 

Thank you for your input chipmeister, i have trouble understanding and putting sentences together at times finding all this difficult. I want to send the letter in post; (1280) to the Judge but dont know if its suitable as i have read somewhere you shouldnt mention any of the case to the Judge before the hearing or i would be appointed another Judge! Iv had no responce as yet.

Edited February 22, 2011 by DizzieDiva2010

[Chipmeister]

Thank you for your input chipmeister, i have trouble understanding and putting sentences together at times finding all this difficult. I want to send the letter in post; (1280) to the Judge but dont know if its suitable as i have read somewhere you shouldnt mention any of the case to the Judge before the hearing or i would be appointed another Judge! Iv had no responce as yet.

 

That, I'm afraid, I don't know, I'm not in anyway qualified in respect of whether you should be writing to judges etc! Presumably correspondence should remain between you and Restons, the judge will listen to everything (hopefully!) at your hearing and you should have the chance to speak out.

 

In respect of my comments on the WS, that's my interpretation of what is being said. It's all words and no substance IMHO!

[gh2008]

I'm not sure writing to the DJ will help at all - the AQ is for that, and that's been and gone and the DJ preferred Reston's argument for FT over yours for SCT.

 

You need to get a WS together rubbishing Reston's. You need to put over YOUR story, very clearly and unemotionally, the facts and figures and a little bit of why.

 

Why has the envelope not been disclosed already? If you have mentioned it then it has been disclosed so that's fine, if they choose not to make a CPR request to inspect it that's their problem.

 

Get a good WS together - that will be the key. If you can show the WS is rubbish then all the better, copies of comms between you & the OC & Restones that show you were dealt with badly will help as long as it sticks to teh facts.

 

They are determined to make you out as the 'baddy' and you need to turn the tables.

 

I would also mention that you cannot see where the 'complicated legal arguments' have been formed which were the basis for their FT argument.

 

I haven't got time to read the thread - it's 65 pages and it's not easy to follow which doesn't help at all

[DizzieDiva2010]

I'm not sure writing to the DJ will help at all - the AQ is for that, and that's been and gone and the DJ preferred Reston's argument for FT over yours for SCT.

 

You need to get a WS together rubbishing Reston's. You need to put over YOUR story, very clearly and unemotionally, the facts and figures and a little bit of why.

 

Why has the envelope not been disclosed already? If you have mentioned it then it has been disclosed so that's fine, if they choose not to make a CPR request to inspect it that's their problem.

 

Get a good WS together - that will be the key. If you can show the WS is rubbish then all the better, copies of comms between you & the OC & Restones that show you were dealt with badly will help as long as it sticks to teh facts.

 

They are determined to make you out as the 'baddy' and you need to turn the tables.

 

I would also mention that you cannot see where the 'complicated legal arguments' have been formed which were the basis for their FT argument.

 

I haven't got time to read the thread - it's 65 pages and it's not easy to follow which doesn't help at all

 

Andyorch doesnt agree that it should be in the Fast Track nither do I but yes i guess it is a little too late. I cannot understand why i have a different Judge from the last hearing? The barrister told me that MBNA would request a diffenent Judge maybe that had something to do with it. I have already submitted my witness statement can i add to this or not?

 

Do i have to disclose copies of everything i am going to rely on in court to the court, im not sure? I sent a list to Restons.

Im going to end up with a £6000 debt in the fast track!!!

[DizzieDiva2010]

Oh gh2008 i did request the SCT in the aq but the Judge has gone along with Restons!

[DizzieDiva2010]

I would like to write to the Judge's case manager asking what complicated legal arguments there are but am not sure how to word this!!

[Chipmeister]

It's not up to the judge to say what the "complicated legal issues" are - wasn't it Restons who used that term? If so, it's up to Restons to prove it, not you and not the judge before a hearing surely?

[AndyOrch]

It shouldn't be allocated to Fast Track the Court rules are quite clear.Debts of 5K and above can be dealt with in SCT

if the claim is straight forward.Nowhere (that I am aware)does it state that claims below 5K can or should be allocated to FT irrespective of complexity.

I mean how complicated can £2.5 K get? :!:The Claimant from the first AQ as insisted that it be FT and you DD have selected SCT as it should be.

The DJ (initially agreed with the Claimant for what ever reason unknown only to himself and the Claimant) has been steered by the by the Claimant.

The Claimant as steered the Track with the full knowledge and reason to use this as its threat in attempt to stop you DD from defending the matter.

 

However you must submit your N170 shortly which is basically a final check list that both parties are agreed on all aspects before this fiasco continues to trial.

You will have further opportunity DD to broach your grievance on the above matter and make it know what is actually going on here.

Some/most trials, on completion of the N170 are given further opportunity to clarify by way of a Pre Trial Hearing (not always but in most cases FT)

again you will have opportunity to state your grievance.

 

Lastly in the event that you do lose at trial again you must state that you are not in agreement with the Claimants costs and vigorously demand that they be assessed.

Its the DJ that has the last say on the Claimants costs and if he agrees with you will request a detailed assessment which will involve a court appointed Draftsman before any Costs certificate is allowed.So not all is lost.

 

DD do not send that letter you have drafted, its not protocol and smacks of desperation.

 

Regards

 

Andy