MBNA county court Summons " Help Please

[Old Cogger]

The re-created default notice MBNA sent me was dated the 8 March 2010.

 

In order to remedy the breach i had to make a payment by the 25 March 2010.

 

I make the DN out by one day, could somebody clarify this also please.

 

8TH MARCH 2010 - Monday so 2nd class UK Mail = 11th March 2010, start clock on 12th March 2010 = 14 days =25th March 2010, so 26th March 2010, but DJ would allow 1 day it seems, from some post. of course also no proof letter actually posted on the 8th. so seems prob o.k. if any help.

[manchestman]

Having only just discovered I now have a summary judgment hearing date set for 3 Sept, I'm in much the same boat, Dizzy, so I am really impressed with your achievements and I do believe you will give it your best shot.

I don't want to patronise you, Dizzy, but please accept a big "Well done"

[AndyOrch]

Ok DD subject to anymore input you need 4 copies one for the Sols/Court/and retain 2 for yourself (take 2 with you incase the Court mislays theirs) Send recorded Del at the least and retain receipts.

You ok with all up to now?

 

 

Andy

[ASR]

Hi guys,

I am soo confused and panicking. I just feel like all the doors have closed on me

the only thing that keeps me going is my 7 month old starring at me with his puppy eyes.

anyways I have received a court action by Restons on behalf of MBNA.

 

The story in short is I have a cc with £4500 taken out on or around 2004

ive been struggling to make payments they offered me a short settlement for £2k last year but i did have

money. After which I made some payments here and there of around £50-£100.

 

They kept on calling me on my mobile but I just didnt know what to say to them.

I then got a letter from them saying I have limited time for them to help me.

 

Then I get a letter from Restons beginning of August giving me 2 weeks to fill in the income and expenditure form and propose a payment plan in which i stated £50

I was abit late in sending them the forms and they got it on the 18 august.

I then get another letter saying £50 in not enough and that they will be processding with legal action.

 

I started to panic and rang them and begged him not to take it to court and that I can borrow £100 and pay that a month, he was absolutely arrogant and refused saying we will take it to court.

 

Now yesterday I received a court action and just dont know what to do.

I know this thread is in the same subject but there are so many posts that I just dont know where to start.

 

Can someone please help me as I am really confused.

 

thanks

[AndyOrch]

Hi ASR and welcome to Cag

 

You need to start you own thread on this firstly.In the meantime dont talk on the phone dont send any I&Es.

 

Regards

 

Andy

[DizzieDiva2010]

It should be its one of mine with your details in:p

 

Hi Andy. I have used your witness statement, added parts of Diddy's and put in a few parts of my own that i had noted down. Please would you be kind enough to look over it, and feel free to suggest any amendments. I will be posting it very soon. Thank you DD

[AndyOrch]

I preferred the first version DD I would attach the background part as an exhibit and refer to it within your WS and mark it as Exib1.Otherwise yes good to go.

 

 

Regards

 

Andy

[DizzieDiva2010]

Having only just discovered I now have a summary judgment hearing date set for 3 Sept, I'm in much the same boat, Dizzy, so I am really impressed with your achievements and I do believe you will give it your best shot.

I don't want to patronise you, Dizzy, but please accept a big "Well done"

 

Thank you, it has been very very stressful, being overloaded with all this information. All the best with your case. DD

[DizzieDiva2010]

Ok I shall do that. Thanks. DD

[Old Cogger]

Hi guys,

I am soo confused and panicking. I just feel like all the doors have closed on me

the only thing that keeps me going is my 7 month old starring at me with his puppy eyes.

anyways I have received a court action by Restons on behalf of MBNA.

 

The story in short is I have a cc with £4500 taken out on or around 2004

ive been struggling to make payments they offered me a short settlement for £2k last year but i did have

money. After which I made some payments here and there of around £50-£100.

 

They kept on calling me on my mobile but I just didnt know what to say to them.

I then got a letter from them saying I have limited time for them to help me.

 

Then I get a letter from Restons beginning of August giving me 2 weeks to fill in the income and expenditure form and propose a payment plan in which i stated £50

I was abit late in sending them the forms and they got it on the 18 august.

I then get another letter saying £50 in not enough and that they will be processding with legal action.

 

I started to panic and rang them and begged him not to take it to court and that I can borrow £100 and pay that a month, he was absolutely arrogant and refused saying we will take it to court.

 

Now yesterday I received a court action and just dont know what to do.

I know this thread is in the same subject but there are so many posts that I just dont know where to start.

 

Can someone please help me as I am really confused.

 

thanks

 

O.K. for a start copy NI court papers up/download onto site cover up personal details and any Barcode, also letter etc you have, do not panic sound to familiar trying to unlawfully pressure you, we on here will assist so do not panic, there are people on here been there abd can advise you each step of the way.

[Old Cogger]

somebody move their thread to make their own pls.

[DizzieDiva2010]

Claim: - XXXXXX

IN THE XXXXX County Court

 

BETWEEN:-

 

 

 

MBNA Europe Bank Ltd

Claimant

 

and

 

XXXXXXXXXX

Defendant

 

 

 

Exhibit 1 Attached

 

 

 

Witness Statement

 

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Defendant terminated the contract.

 

3 I contacted Citizens Advice Bureau debt management for debt advice and had an appointment on 26 March 2010. I sent three emails to MBNA exhibit (MBNA1,2,3) and attempted numerous telephone calls to MBNA to reach an amicable payment plan with them which was unsuccessful. MBNA took action against me without taking reasonable steps to come to a realistic payment arrangement with me. The account has been terminated unlawfully, I do not agree with the balance, therefore the account is in dispute and this is unfair business practice by MBNA.

 

4 MBNA did not give me adequate warning before taking me to trial and did not follow Pre Action Protocols 28 days before. They ignored reasonable offers made to them by myself.

 

5 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated. I am assuming and presuming nothing and putting MBNA to strict proof of claim as they initiated this.

 

6 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

7 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry CAEI1f NOD.

 

8 I understand the claimant claims that NOD stands for Notice of Default.

 

9 The claimant representative Reston’s solicitor has already admitted in a letter dated Friday 4 June 2010 that they are unable to produce the original copy of the default notice but instead sent me a re-created copy of the Default Notice 8 March 2010.

 

10 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

11 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

12 Moreover, The claimant claims the default notice was sent on the 8 March 2010 and that the default notice if it could be seen by the court would show it had allowed 14 days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed 14 days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the 8 March 2010 and gave 14 days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a letter before action on the 1st April 2010 demanding payment, being just 5 days after the claimant claims the default notice was sent.

 

13 The delivery of the letter before action is good evidence that on or before 1st April 2010 the Claimant terminated the agreement.

 

14 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on 12 March 2010 the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on 8 March 2010 and which gave to me 14 days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

15 without prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the original claim is incorrect and they therefore request the claim value to be amended to £2519.71. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations.

 

16 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

17 The claimant also claims £555.23 in charges and interest from 24 July 2008 to 22 February 2010. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

18 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

 

Date: 27th August 2010

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Signature

 

 

Attachment: attached Exhibit 1

 

 

Exhibit 1

 

The Background

 

On 10 May 2010 the defendant made a s78 request under the Consumer Credit Act (“The Act”) to the claimant for a true copy of an executed credit card agreement, any document referred to in it and a signed statement of account. Where the claimant has varied the terms of the original agreement he is also obliged to send a copy of the original terms and conditions as well as the current terms and conditions as amended.

 

In addition the claimant was obliged under the Cancellation Notices and Copies of Documents Regulations 1983 (3) to provide copies of documents that were “easily legible”.

 

The claimant ignored the original request and follow up letters and sent in response, the document exhibited as (MBNA2). This was a set of “current terms and conditions” and did not fulfil the claimant’s obligations under S78 of the act which required them to be accompanied by a copy of the original terms and conditions.

 

The claimant also sent to the defendant (MBNA1) what it alleged to be a copy of the original executed agreement and which contained no prescribed terms nor any reference to them and was clearly not a true copy of an executed agreement as required to be provided by s78 of “the Act” - and was in any event illegible. I put them to strict proof that the front of the application form has anything to do with the reverse.

 

Further that an unfair relationship was also created due to the mis- selling of PPI to the defendant who was at the time a civil servant and whose employee benefits exceeded those of the PPI and that in fact her employee benefits precluded any claim against the PPI policy and will so give further grounds for successfully defending the claimants action. Exhibit (MBNA4) payment protection cover dated on statement 24 July 2008.

 

 

 

FAILURE TO COMPLY WITH CPR31.14 AND CPR18

 

The claimant has twice been asked by the defendant prior to any proceedings to admit if he does not have the original executed agreement, On both occasions he has ignored the invitation (MBNA1)

 

The claimant could have made this admission many months ago and that the matter could then have been resolved without the costs and the involvement of the court process.

 

The witness for the claimant MBNA makes a statement at paragraph 5 in her witness statement suggesting that the defendant is acting “speculatively” and trying to avoid her obligations.

 

The court should be aware that the defendant has never denied obtaining or using a credit card facility with the claimant- and understands that even if a debt is legally unenforceable it still remains- however in this case, the claimant has in any event unlawfully repudiated the alleged agreement.

 

The claimant themselves have ignored a Subject Access Request not providing me with all the details of the account from its inception to the time of the Subject Access Request therefore this has not been fully complied with and the account is now in further dispute. I have now written to MBNA stating that they are breaking OFT rules and I have now put in a complaint into the Financial Ombudsman advice given by North XXXXX Advice Centre on the 25 August 2010.

 

 

The claimant’s solicitors Reston’s, appeared to have adopted their client’s obstructive methods in avoiding their CPR responsibilities. The reasons being given for non compliance being trite and disingenuous

 

The defendants CPR 31.14 and CPR18 requests sent to the claimant were dated 10 May 2010.

 

The claimant’s solicitor responded to the requests by letter dated 12 May 2010 stating that they acknowledged receipt of my request, made pursuant to CPR 31.14, but the documents I have requested were not mentioned in their particulars and therefore CPR 31.14 did not apply. However their Particulars of Claim states a Contract dated on or about 28 November 2000, so where is it, they have sent me an application form.

 

It is suggested that Reston’s were fully intent on frustrating the defendant’s ability to compile a full defence and that the reasons given as to not complying were trite and childish

 

 

Their POC fails to mention that it is a regulated agreement and mentions a contract on a date, so they must produce the original copy of the executed agreement.

 

 

THE CREDIT AGREEMENT

 

 

The defendant has admitted signing a pre contractual application form on 15 November 2000 and which is not itself an executed agreement and which is not binding on any future agreement

 

 

The first page of the document produced at MBNA1 and referred to in Miss Tippings statement as purporting to be an original agreement is in the opinion of the defence taken from the pre contractual application form referred to in the preceding paragraph.

 

It is noted that Miss Tipping does not claim this document to be a true copy of an executed credit agreement nor could it be in any event. It is not signed by the creditor- and crucially contains no space for him to do so - as would a genuine agreement, and is not in the form required by the Act. Nor is it headed as a regulated agreement would (must) be headed. The declaration immediately above the signature refers to itself as this application form.

 

Further evidence that the document is a part of a pre contractual application form can be found in the exhibit marked MBNA1 and which Miss Tipping claims in her statement as being a reconstruction of the full terms and conditions that were present at the time the defendant signed the alleged agreement and which the prescribed terms of the alleged agreement referred.

 

 

 

[ASR]

Ok I shall do that. Thanks. DD

How do I start a new thread?

[AndyOrch]

How do I start a new thread?

 

 

Beginner's guide

 

Regards

 

Andy

[DizzieDiva2010]

Hey guys im done and really proud of myself for getting this far, but with thanks to you all for your advice, help and guidance. Many thanks to Andy and the rest of you for all your kindness and support. I could not have come this far without this forum.

 

I hope i can help others in the future and will be on here alot as i have many of creditors to beat.

 

I will kindly make a donation and have tipped your scales have a fun bank holiday, im off to the post office now.

 

Dizzie

Edited August 27, 2010 by DizzieDiva2010

[ASR]

Ok Mike thanks alot will upload all docs asap

when do i need to acknowledge by?

[Old Cogger]

Ok Mike thanks alot will upload all docs asap

when do i need to acknowledge by?

 

 

DD will tell you more his area that.

[AndyOrch]

Make sure the Sols goes today DD or they will throw the dummy out for not receiving 7 days before the hearing.

 

You too have a good weekend and we will run through a few points next week before said hearing

 

Regards

 

Andy

[AndyOrch]

Ok Mike thanks alot will upload all docs asap

when do i need to acknowledge by?

 

 

Hi ASR

 

Ok sorry for bypassing you somewhat but I needed to concentrate on DDs case.

 

OK start your own thread and post up a copy of the the Claimants P.o.C less any identifiable details.

You have 33 days once said summons is served.5 deemed served and 28 days 14 to AoS and a further 14 should you wish to defend and submit a defence

Get your thread up and running and we will take it from there.

 

Regards

Andy

[Dotty50]

http://www.consumeractiongroup.co.uk/forum/showthread.php?274943-Restons-mbna-court-action-help-me-also-please&highlight=

 

Here is ASR's new thread, if anyone can assist

[DizzieDiva2010]

Make sure the Sols goes today DD or they will throw the dummy out for not receiving 7 days before the hearing.

 

You too have a good weekend and we will run through a few points next week before said hearing

 

Regards

 

Andy

 

Posted Reston's & the Court recorded delivery, i assume they won't recieve it until Tuesday of next week due to bank holiday, but at least I have proof of the date I posted it. Dizzie

[Dotty50]

somebody move their thread to make their own pls.

 

Its already been done Mike.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?274943-Restons-mbna-court-action-help-me-also-please&highlight=

[DizzieDiva2010]

Morning DD

 

Its not a case of admitting the debt its about the principle the interest the missing payments the manner of the Claimant.I dont think for one min you are going to win this case should it get to trial.However you will argue your points along the way and if you argue well they may even throw the towel in and you are back to squire one with you payment plan and more importantly no CCJ.

As i have said before consider this a game and the name of the game for the Claimant is for you to give in role over and accept.Irrespective of whether the amount is correct or incorrect.If you was short changed in your supermarket you would soon argue your point so whats the difference here.

Dont let the laws and Courts berate you,its County Court a room and table and chairs and a handful of folk no wigs no stands.Make your point why the summons is incorrect argue your point in your own words no need for legal speel.

Choice is yours but if you dont its a CCJ on your file for 6 years and one with the wrong amount!!!!

 

 

Regards

 

 

Andy

 

Good points here, I am pleased that I never gave up, why should they have it easy when they have treated me unfairly.

[Chipmeister]

You go Dizzie! Best of luck.

 

CM

[DizzieDiva2010]

Claim: - XXXXXX

IN THE XXXXX County Court

 

BETWEEN:-

 

 

 

MBNA Europe Bank Ltd

Claimant

 

and

 

XXXXXXXXXX

Defendant

 

 

 

Exhibit 1 Attached

 

 

 

 

Witness Statement

 

1 This statement is made in opposition to the Claimant’s application for summary judgment and by which the Claimant contends I have no real prospect of successfully defending the claim against me.

 

2 I do not deny that a contract once existed between me and the claimant. I deny the contract endures since on a day prior to the commencement of this case against me, the Defendant terminated the contract.

 

3 I contacted Citizens Advice Bureau debt management for debt advice and had an appointment on 26 March 2010. I sent three emails to MBNA exhibit (MBNA1,2,3) and attempted numerous telephone calls to MBNA to reach an amicable payment plan with them which was unsuccessful. MBNA took action against me without taking reasonable steps to come to a realistic payment arrangement with me. The account has been terminated unlawfully, I do not agree with the balance, therefore the account is in dispute and this is unfair business practice by MBNA.

 

4 MBNA did not give me adequate warning before taking me to trial and did not follow Pre Action Protocols 28 days before. They ignored reasonable offers made to them by myself.

 

5 I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated. I am assuming and presuming nothing and putting MBNA to strict proof of claim as they initiated this.

 

6 At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant.

 

7 The Claimant contends otherwise and in support of its contention that a compliant default notice was delivered to me relies exclusively on a screenshot from a “Mida” system that shows the entry CAEI1f NOD.

 

8 I understand the claimant claims that NOD stands for Notice of Default.

 

9 The claimant representative Reston’s solicitor has already admitted in a letter dated Friday 4 June 2010 that they are unable to produce the original copy of the default notice but instead sent me a re-created copy of the Default Notice 8 March 2010.

 

10 At trial I will contend that the screenshot is inadequate for the purpose of demonstrating the Claimant delivered a compliant default notice. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

11 The screenshot evidences none of these things. The Claimant has already given notice that it will be unable to give discovery of the default notice relied upon. In the absence of production of a copy of that default notice together with evidence from a witness having first hand knowledge that the copy so produced was delivered to me, stating the date on which and the means by which the default notice was delivered to me, contrasted with my evidence to the court that a default notice was not delivered to me, I contend that I have more than reasonable prospects of successfully defending the claim against me.

 

12 Moreover, The claimant claims the default notice was sent on the 8 March 2010 and that the default notice if it could be seen by the court would show it had allowed 14 days for me to rectify any default mentioned in it. Under section 88(2) of the Act, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Besides the fact that merely stating the default notice would have allowed 14 days is non-compliant with the requirement of section 88 of the Act owing to the need to specify a date (rather than an interval of time), it is telling in terms of the Claimant’s credibility that if the notice was delivered on the 8 March 2010 and gave 14 days for me to rectify any default mentioned in it as the Claimant appears to contend, that the claimant’s solicitor sent a letter before action on the 1st April 2010 demanding payment, being just 5 days after the claimant claims the default notice was sent.

 

13 The delivery of the letter before action is good evidence that on or before 1st April 2010 the Claimant terminated the agreement.

 

14 In any event, if contrary to my contentions and expectations, the Claimant should prove at trial that a default notice was delivered to me on 12 March 2010 the Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on 8 March 2010 and which gave to me 14 days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

15 without prejudice to my main contention set out above, the claimant now claims without any good or proper explanation, that the value of the original claim is incorrect and they therefore request the claim value to be amended to £2519.71. Yet they have failed to provide proof of how this figure has been arrived. The claimant’s solicitor however did provide an Appendix which showed various calculations.

 

16 In the circumstances and in addition to my main contention, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

17 The claimant also claims £555.23 in charges and interest from 24 July 2008 to 22 February 2010. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

18 In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

 

Date: 27th August 2010

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

Signature

 

 

Attachment: attached Exhibit 1

 

 

Exhibit 1

 

 

The Background

 

On 10 May 2010 the defendant made a s78 request under the Consumer Credit Act (“The Act”) to the claimant for a true copy of an executed credit card agreement, any document referred to in it and a signed statement of account. Where the claimant has varied the terms of the original agreement he is also obliged to send a copy of the original terms and conditions as well as the current terms and conditions as amended.

 

In addition the claimant was obliged under the Cancellation Notices and Copies of Documents Regulations 1983 (3) to provide copies of documents that were “easily legible”.

 

The claimant ignored the original request and follow up letters and sent in response, the document exhibited as (MBNA2). This was a set of “current terms and conditions” and did not fulfil the claimant’s obligations under S78 of the act which required them to be accompanied by a copy of the original terms and conditions.

 

The claimant also sent to the defendant (MBNA1) what it alleged to be a copy of the original executed agreement and which contained no prescribed terms nor any reference to them and was clearly not a true copy of an executed agreement as required to be provided by s78 of “the Act” - and was in any event illegible. I put them to strict proof that the front of the application form has anything to do with the reverse.

 

Further that an unfair relationship was also created due to the mis- selling of PPI to the defendant who was at the time a civil servant and whose employee benefits exceeded those of the PPI and that in fact her employee benefits precluded any claim against the PPI policy and will so give further grounds for successfully defending the claimants action. Exhibit (MBNA4) payment protection cover dated on statement 24 July 2008.

 

 

 

FAILURE TO COMPLY WITH CPR31.14 AND CPR18

 

The claimant has twice been asked by the defendant prior to any proceedings to admit if he does not have the original executed agreement, On both occasions he has ignored the invitation (MBNA1)

 

The claimant could have made this admission many months ago and that the matter could then have been resolved without the costs and the involvement of the court process.

 

The witness for the claimant MBNA makes a statement at paragraph 5 in her witness statement suggesting that the defendant is acting “speculatively” and trying to avoid her obligations.

 

The court should be aware that the defendant has never denied obtaining or using a credit card facility with the claimant- and understands that even if a debt is legally unenforceable it still remains- however in this case, the claimant has in any event unlawfully repudiated the alleged agreement.

 

The claimant themselves have ignored a Subject Access Request not providing me with all the details of the account from its inception to the time of the Subject Access Request therefore this has not been fully complied with and the account is now in further dispute. I have now written to MBNA stating that they are breaking OFT rules and I have now put in a complaint into the Financial Ombudsman advice given by North XXXXX Advice Centre on the 25 August 2010.

 

 

The claimant’s solicitors Reston’s, appeared to have adopted their client’s obstructive methods in avoiding their CPR responsibilities. The reasons being given for non compliance being trite and disingenuous

 

The defendants CPR 31.14 and CPR18 requests sent to the claimant were dated 10 May 2010.

 

The claimant’s solicitor responded to the requests by letter dated 12 May 2010 stating that they acknowledged receipt of my request, made pursuant to CPR 31.14, but the documents I have requested were not mentioned in their particulars and therefore CPR 31.14 did not apply. However their Particulars of Claim states a Contract dated on or about 28 November 2000, so where is it, they have sent me an application form.

 

It is suggested that Reston’s were fully intent on frustrating the defendant’s ability to compile a full defence and that the reasons given as to not complying were trite and childish

 

 

Their POC fails to mention that it is a regulated agreement and mentions a contract on a date, so they must produce the original copy of the executed agreement.

 

 

THE CREDIT AGREEMENT

 

 

The defendant has admitted signing a pre contractual application form on 15 November 2000 and which is not itself an executed agreement and which is not binding on any future agreement

 

 

The first page of the document produced at MBNA1 and referred to in Miss Tippings statement as purporting to be an original agreement is in the opinion of the defence taken from the pre contractual application form referred to in the preceding paragraph.

 

It is noted that Miss Tipping does not claim this document to be a true copy of an executed credit agreement nor could it be in any event. It is not signed by the creditor- and crucially contains no space for him to do so - as would a genuine agreement, and is not in the form required by the Act. Nor is it headed as a regulated agreement would (must) be headed. The declaration immediately above the signature refers to itself as this application form.

 

Further evidence that the document is a part of a pre contractual application form can be found in the exhibit marked MBNA1 and which Miss Tipping claims in her statement as being a reconstruction of the full terms and conditions that were present at the time the defendant signed the alleged agreement and which the prescribed terms of the alleged agreement referred.

 

 

 

 

 

I am not going to win this case, there is a mistake in my witness statement which is down to rushing to put it together..bit late worrying about it now though i know!!!

 

Does PPI cover you for being self employed?

Edited August 29, 2010 by DizzieDiva2010