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Restons/MBNA v Me


Ricardino
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Hi Ricardino.....pls do read my thread as suggested by the very helpfull Miss Muppet.

In my case, the DJ let them get away with an application form (illegible) and some T&Cs (not originals) as an 'executed agreement'. He was clearly wrong but the barrister won that argument. They relied heavily on CAREY RULING, even though it was not really relevant.....my fault l guess as l hadn't learnt enough about the whole case. You must read up on CAREY from the many threads on here as they will surely try to use this again, even though it is not applicable.

 

My 2p worth is - check the DN carefully. Is it in the prescribed format and more importantly did they give you enough time to rectify the breach? (ie 2 working days for service + 14 days). Look at a calendar for the year in question and check this. This could be enough to blow their case out of court if defective DN and may even give you grounds for a counter claim for damages.

 

You will get great help here, so keep your chin up, put in the hours of research and you WILL beat these vultures. Regards..............Valdez

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Thanks Valdez, will do. Feel i'm not going to get far with the DN but why are the DJ's allowing Carey if s61 and s85 prove there was no executed agreement? Also would there be any mileage in the fact that the application states the PPI will cost a specific amount and there is no mention of interest? isn't that misrepresentation??

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Have a look at Post 87 here:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/254011-wycombe-restons-mbna-5.html

 

This is to do with the Money Laundering Regulations 2007 which states that financial information must be kept on file for at least six years AFTER closure of an account. I'm sure you could put this to good use in your request for the ORIGINAL agreement/documents.

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"Hi Wycombe, and thanks for all your referals to threads. I've read elsewhere that it doesn't always pay to submit an embarressed defence as a DJ might strike out in favour of the Claimant and am a little confused as to whether i shouldn't just forget about unenforceable agreement in favour of counter claim for

1) total PPIlink3.gif premiums paid to date

2) compound interestlink3.gif at contractual rate charged

3) simple interest expected from the court (if permissible)

This would amount to more than their total claim but then put me in a position of steep legal fees so am wary.

Any other suggestions? given defence needs to be submitted v.v. soon could I make an application to set asidelink3.gif for being unable to plead without the original document to verify if the PPI was lawful (doubtful) or am I looking at having to wait for aqlink3.gif and the original being available at the hearing?"

Hi Ricardino,

 

I've put your comments onto your thread so you can keep all advice/comments in one place.

 

What tack you take is really up to you and dependent on your particular circumstances. In my case I really have nothing to lose against challenging Reston's as I no longer have any money - my only asset being a half share on a joint mortgage. The oppositions tactics in my case appear to be aimed at an eventual charging order on my home. So I am fighting everything tooth and nail. Hopefully this new government may implement one of its manifesto pledges regarding charging orders where they will not be applicable to debts under £25,000. Should this happen MBNA and its acolytes will no longer be able to take such drastic measures to enforce debts and defaults which appear mostly of their own making (in respect of refusing to compromise with those in difficulty).

 

I think (and I am sure I will be corrected if I am wrong on this) that you will still be able to claim for unfair charges etc. if it is found that your agreement is enforceable. How strong do you think your stand is on unenforceability? DN and other points. How confident are you to stand and argue your case in court?

 

Hopefully this post will bump you to the top of the queue and you will get comments from more experienced cagers than me!

 

If you are really stuck with a defence and deadlines are looming click the red triangle for one of the site team to give you some guidance.

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  • 2 months later...

Hi all, am still in the frame with an imminant application hearing and in need of assistance with the court bundle.

Do i need a seperate folder for each parties exhibits or put them together (seperated by indexes) in a paginated form?

Can my folder contain the original documents which can be removed for viewing, and do the pages have to be numbered by computer generated page numbers?

Is it permissible to have each letter of correspondance between the parties on a left and right view respectively or will this confuse the index sections.

Thanks in anticipation

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Thanks miss muppet alas have already been issued with DN from MBNA served in August last year under Section 87(1) for full amount outstanding, which includes the 6 months of added interest. If the agreement is no longer live from what I gather they must provide an original executed agreement (signed, boxes ticked etc...) or is this wishful thinking?

 

Hi.

 

If the original DN demanded to full balance as a remedy, then the DN is faulty. A DN can only demand payment of amounts that are in arrears as a remedy.

 

Does the copy of the DN in the POC have exactly the same content as the original DN? If it doesn't you can challenge their evidence and their witness statement, because the DN in the POC must be a "true copy".

 

As for preparing your bundle, I suggest you follow the links posted on my thread (below) as I found them very useful

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/265332-help-require-default-judgement.html#post3005117

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  • 8 months later...

Hi all, back from the brink with case now going to trial!

So the DN balance is the same on POC as the notice itself. I've been hearing that defective

DN can be made good but if the copy submitted in their evidence differs from the one received

would that weaken the arguement regarding ability to provide accurate copies.

The original t&c's have been supplied twice. First the minimum payment was wrong so they've

simply supplied a copy of both the wrong then right together as part of the a new WS.

I've claimed contractual interest on the PPI which is the focus of that issue and believe the cost

of the premium should have been as described with respect to cost . I'm after authority on the

sale of goods act 14 (2A) if anyone can refer would much appreciate

Ric

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Have you read the following judgment...

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

 

http://www.dailymail.co.uk/news/article-1362603/Judge-writes-customers-20-000-credit-card-debt-hearing-hounded-repay-money.html

 

The above case was initially started by Mr Harrison in order to obtain an injuction against Link Financial in order to stop them harrassing him. Link decided to counterclaim for the account balance and MBNA were brought into the fray.

 

MBNA had several stabs at providing a "true copy" of the agreement.. with none of them being correct.

 

With respect to the Default notice. They are only permitted to ask for the arrears, you are advising that your DN demanded the whole amount to be repaid. Were you given the required amount of time to repay which is 14 clear days.

 

Are you saying you are counterclaiming for PPI and contractual interest ?

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Uploading documents to CAG ** Instructions **

 

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1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

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2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Thanks CB

and thanks for the links. Already up on Harrison v Link (MBNA) and have the SOGA in the bundle already.

Pretty sure the DN allowed 14 days but they (sols) have claimed the one sent for full balance came

from the SAR (made 9 months later!) but have proof to disprove that statement.

My main contention was the original T&C's which were wrong but they've remedied (presumably on the back of Kotecha)

in their last WS. The charges are still wrong but that old chesnut deminimus will no doubt be raised again at trial.

My defence was to contest the amount of the claim based on a refund of the PPI and contractual interest charged on it as well as the

unreasonable delay in dealing with my s78 request. (it took 15 months to get a recon agreement and didn't even receive the original T&C's

until after the AQ stage.

Doesn't the interest charged on the PPI amount to mis-selling? How can a product be qouted as costing X but then accrue interest?

My skeleton has 4 points of dispute.

1) PPI refund (offered as a concession but not until 15 months after request)

2) Original T&C's also recons (mis-stated minimum payment - despite 4 legal professionals saying otherwise now remedied)

3) DN requests full balance not remedy (they produced the correct form on the same date? did the bank make 2 that day?)

4) Precedent condition (this allows the creditor to waive the holiday period reduced interest rate for cheques by reducing /not seeking a minimum payment - which they did in the final month - thereby mis-stating the actual offer).

The fact they took the option to do this must have left alot of consumers who made balance transfers with their cheque book

and didn't think to read the small print, with a much larger interest bill. I'd guess that most MBNA customers still didn't spot it to this day.

Any suggestions most appreciated.

Ric

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  • 2 months later...

!!!URGENT HELP NEEDED TODAY!!!!

 

Hi all again,

 

have been offered a Tomlin in order to settle the dispute but Sols won't sign except by their firms name,

i.e. no signature by a specific person,

This seems odd to me as they are not signing for and on behalf of the bank (although the case no is detailed)

 

Is this normal practice?

 

Have till Monday so please advise as mayyer of urgency.....

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Dont know the answer, will flag for site team attention.

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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  • 4 weeks later...

Hi Ricardino,

I'm back on after a while away. Restons trying for summary judgement on me, stating UK Mail S means 2 business days inc weekends and also that my account wasn't terminated prior to DN (charged off).

Just wondering how you go on ? Looks like they made you an offfer ? hope this worked out for you. Just wondering if you got anywhere proving charging off = terminated? Or can point me somewhere ?

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Hi Ricardino,

I'm back on after a while away. Restons trying for summary judgement on me, stating UK Mail S means 2 business days inc weekends and also that my account wasn't terminated prior to DN (charged off).

Just wondering how you go on ? Looks like they made you an offfer ? hope this worked out for you. Just wondering if you got anywhere proving charging off = terminated? Or can point me somewhere ?

 

Sorry Ricardino, hijacking your thread, Idn panda have you used the attached link to wrestle information from them, or did you SAR them at any time?

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

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Hi Miss Muppet, thanks for your post

 

yes sorry to hijack...do I need to move to diff thread ?

I did SAR them, which shows that there was no changes to the account after charging off. Restons confirm the account was terminated so my argument is that the charging off must be when the a/c was terminated since any amendment to the a/c must be reflected in the a/c history.

My defence is that the termination happened before the issue of DN, which was invalid. I have seen arguments that termination cannot occur after a faulty DN as they are prevented from doing so by statute, but this entry and their subsequent written confirmation shows that they did.

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Hi Miss Muppet, thanks for your post

 

yes sorry to hijack...do I need to move to diff thread ?

I did SAR them, which shows that there was no changes to the account after charging off. Restons confirm the account was terminated so my argument is that the charging off must be when the a/c was terminated since any amendment to the a/c must be reflected in the a/c history.

My defence is that the termination happened before the issue of DN, which was invalid. I have seen arguments that termination cannot occur after a faulty DN as they are prevented from doing so by statute, but this entry and their subsequent written confirmation shows that they did.

 

Yep, quite right, You prob know this already but but the correct format for default notices is in Consumer Credit (Enforcement,Default and Termination Notices) Regs 1983 a copy of which should be on the site, it does sound like an unlawful recission of contract doesen't it - Start your own thread by clicking New Thread Button, your thread is certainly worthy of discussion. Good luck!

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idnpanda, it might be better to ask your questions on your own thread, that way everything is in one place :)

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?298424-Restons-mbna-impending-court-hearing-urgent-help-needed-please

 

Your thread is linked above if you were having trouble finding it :)

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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