Me vs Restons(MBNA) - defence the claim on the grounds of "Unlawful Rescission"

[indebtandharrased]

In respect of Part 31.14 requests for copy docs being relied upon, a Reply to a Pt 18 request is considered as a statement of case as it is signed off with a statement of truth (you need to read the Practice Directions to the CPR's)

 

 

So, you are saying that first make a Part 18 request and when you receive the response apply under CPR 31.14 for copies?

[diddydicky]

the fact of the account being recorded as defaulted with the cra's prior to the serving of the DN, in my opinion- would not entitle you to claim unlawful repudiation unless the creditor had also written directly to you demaning payment of sums not yet due/termination- so i think that you are flogging a dead horse in that respect.

 

If the DN was dated 8th and sent 2nd class the remedy date is 26th so in this respect it would be at least one day out (two if the DN states that you must remedy BEFORE 25th - since this would then be the 24th)

 

have you accepted the unlawful repudiation (rescission is not the correct term) since the DN?

[RobinWayRobinme]

Not exactly. I'd suggest get off straight away a 31.14 requesting copies of docs relied upon in POC and send Part 18 Request giving 7 days for replies to both. Depending on answers to Part 18 (if they state in reply they are relying upon other docs and their answers will depend on how you word Pt 18) send another 31.14 based on their reply.

R

So, you are saying that first make a Part 18 request and when you receive the response apply under CPR 31.14 for copies?

[C2K]

the fact of the account being recorded as defaulted with the cra's prior to the serving of the DN, in my opinion- would not entitle you to claim unlawful repudiation unless the creditor had also written directly to you demaning payment of sums not yet due/termination- so i think that you are flogging a dead horse in that respect.

 

If the DN was dated 8th and sent 2nd class the remedy date is 26th so in this respect it would be at least one day out (two if the DN states that you must remedy BEFORE 25th - since this would then be the 24th)

 

have you accepted the unlawful repudiation (rescission is not the correct term) since the DN?

 

Hi DD

 

No I did not sent my acceptance since DN. But as soon as I was aware of the account being registered as default. I sent my acceptance on 6/02/2010 using the correct term "unlawful repudiation", with the following lines:

.............I note from the credit reference agency (Experian) that you have recently registered this account as being in default on 29 January 2010, which is number [8] under the account status. Surely, by filing the account status with a number of [8], you were effectively sending the following message to me:

 

Experian’s explanation of status history [8]

 

“The account is in 'default'. You failed to keep to your credit agreement and have not responded satisfactorily to requests to bring your payments up to date, so the

credit agreement has ended

.”

 

 

The rupudiation has been further confirmed from the information you provided on 11 February 2010 that in response to my Subject Access Request that the account was indeed “charge-off” as of 29 January 2010.

 

 

No doubt your recent action clearly signified that you no longer regarded the account/agreement as a legal binding contract and did not want to perform on your part. Accordingly, I am fully satisfied that the account has been unlawfully repudiated

as from 29

January 2010 for which I have accepted..............

 

So, in your opinion I will have better chance if I defend the claim on the basis of defective DN? The clock is ticking, urgent help needed please.

 

Please can you also comment on the attached agreement, is it enforceable? (the quality of this copy is pretty much the same as the one I've got from MBNA)

 

Thank you.

MBNA CCA.pdf

Edited July 30, 2010 by C2K

[barrowby]

Hi C2K,

 

I'm subbing to your great thread as I am also in the Mix with MBNA (although not Restons but Optima) received my POC from Optima last week and have aknowledged service. i too have a defective (by 2 days) DN and a dodgy CCA.

 

I have just sent them a CPR 31.14 request and also SAR so see what that brings!!

 

The guys on here will help no end....

[Chipmeister]

Hi C2K,

 

I'm subbing to your great thread as I am also in the Mix with MBNA (although not Restons but Optima) received my POC from Optima last week and have aknowledged service. i too have a defective (by 2 days) DN and a dodgy CCA.

 

I have just sent them a CPR 31.14 request and also SAR so see what that brings!!

 

 

In my experience it hasn't brought anything!!! ;-)

[indebtandharrased]

Hi DD

 

No I did not sent my acceptance since DN. But as soon as I was aware of the account being registered as default. I sent my acceptance on 6/02/2010 using the correct term "unlawful repudiation", with the following lines:

.............I note from the credit reference agency (Experian) that you have recently registered this account as being in default on 29 January 2010, which is number [8] under the account status. Surely, by filing the account status with a number of [8], you were effectively sending the following message to me:

 

Experian’s explanation of status history [8]

 

“The account is in 'default'. You failed to keep to your credit agreement and have not responded satisfactorily to requests to bring your payments up to date, so the

credit agreement has ended

.”

 

 

The rupudiation has been further confirmed from the information you provided on 11 February 2010 that in response to my Subject Access Request that the account was indeed “charge-off” as of 29 January 2010.

 

 

No doubt your recent action clearly signified that you no longer regarded the account/agreement as a legal binding contract and did not want to perform on your part. Accordingly, I am fully satisfied that the account has been unlawfully repudiated

as from 29

January 2010 for which I have accepted..............

 

So, in your opinion I will have better chance if I defend the claim on the basis of defective DN? The clock is ticking, urgent help needed please.

 

Please can you also comment on the attached agreement, is it enforceable? (the quality of this copy is pretty much the same as the one I've got from MBNA)

 

Thank you.

 

Do you know the LAST date you received a statement? I ask this because there are terms and conditions which apply to the Creditor as well as the Debtor.

 

Currently MBNA t & cs include this one:

 

7 Statements

 

7a

We will choose your first statement date. We will then produce your statements about one month apart. If you ask, we may change the statement date.

 

7b

We will send you a statement showing the payments you have made to us and all amounts we have charged to your account since your last statement. We will do this every month, unless there have been no transactions during that period and you do not owe anything. We will normally send the statement within three business days of the statement date.

 

 

So, if they stopped sending you statements in December '09 or January '10 or any time before the DN date, THEY have broken their own t & cs, which is a sure sign that they have terminated - or simply broken (defaulted on) the agreement.....

Edited July 30, 2010 by indebtandharrased

[C2K]

Do you know the LAST date you received a statement? I ask this because there are terms and conditions which apply to the Creditor as well as the Debtor.

 

Currently MBNA t & cs include this one:

 

 

 

 

 

So, if they stopped sending you statements in December '09 or January '10 or any time before the DN date, THEY have broken their own t & cs, which is a sure sign that they have terminated - or simply broken (defaulted on) the agreement.....

 

Thanks for that info. The last statement dated 07/01/2010 and the DN dated 08/02/2010, so they seem to have broken no T&Cs under the agreement.

[indebtandharrased]

Thanks for that info. The last statement dated 07/01/2010 and the DN dated 08/02/2010, so they seem to have broken no T&Cs under the agreement.

 

 

Except that, had you paid up within the time limit provided on the DN they would have missed at least one statement to you - the one due in February. Under the act, if you remedy a default then the status quo of the agreement before the DN was sent is supposed to be fully restored. It appears to me that you haven't actually defaulted until the end of the 14 days allowed for remedy. I think you can safely say that the agreement was ended by MBNA at or before the time that the February statement was due - which is about the same time as the DN was sent. That is in breach of the CCA.

 

For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must first serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement –

(a) to terminate the Agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

(e) to enforce any security.

 

The key phrase in Section 87(1) important in this case is: “is necessary before”.

[C2K]

Except that, had you paid up within the time limit provided on the DN they would have missed at least one statement to you - the one due in February. Under the act, if you remedy a default then the status quo of the agreement before the DN was sent is supposed to be fully restored. It appears to me that you haven't actually defaulted until the end of the 14 days allowed for remedy. I think you can safely say that the agreement was ended by MBNA at or before the time that the February statement was due - which is about the same time as the DN was sent. That is in breach of the CCA.

 

 

 

 

The key phrase in Section 87(1) important in this case is: “is necessary before”.

 

Thank you again IDaH

 

No, I stopped making any contractual payments soon after they had only provided an illegible CCA, which is non-compliance at the time I believe.

 

I will certainly take your comment on board and explore further following this direction.

[diddydicky]

if the agreement they sent is unreadable then they are in breach of s77/79 and may not enforce

 

threatening court action to recover anything other than arrears would be enforcement.

 

I would defend first on the fact that they have no cause of action to claim payment of sums not yet due under the agreement by virtue of their failure to comply with s77/79 secondly and alternatively on the UR

[C2K]

if the agreement they sent is unreadable then they are in breach of s77/79 and may not enforce

 

threatening court action to recover anything other than arrears would be enforcement.

 

I would defend first on the fact that they have no cause of action to claim payment of sums not yet due under the agreement by virtue of their failure to comply with s77/79 secondly and alternatively on the UR

 

Thanks DD

 

What if they have also sent a recon'd copy? I would have believed that an original and legible copy must be produced at hearing, a recon'd copy merely satisfies cca request under s77/78 of CCA 1974. Is that right?

 

What about the defective DN? If I use this as extra ammunition, does it mean that I have accepted the cca as a valid one as it stands?

[diddydicky]

According to the OFT i should add!!

[C2K]

Ok, I have just completed the AOS online. Now I am not sure how to formulate my defence in the most effective way and I urgently need further advice from you guys.

 

Docs already in hands: -

 

1. MBNA cca - personal details & my sig. are OK, but PTs is presented but unreadable

2. Separate PTs - about 1/3 of A4 size copy

3. Recon'd T&Cs - headed Credit Card Agreement with my personal details

4. DN - 2 days out at best, sent via UKMail S, envelope available.

 

Defense basis: -

 

1. Unreadable TP, no T&Cs - no cause of action

2. Defective DN+UR - no cause of action (but no acceptance letter sent)

3. UR - registered the account being as in default before DN (which means the account is terminated according to CRA, confirmation letter from Experian to back this argument, acceptance sent to MBNA). According to SARS, the account was charged-off on the same default date.

4. DN says I was in breach of the clause (para. 8 of the agreement) which I have entered with them; surely I would not have possibley verified the details without a full T&Cs of the agreement before a requested T&Cs was sent.

 

Questions: -

 

1. Do I still need to fire a CPR 31.14?

2. What exactly the information I need to ask if CPR part 18 in this circumstances?

3. If the argument is on the basis of defective DN, will the Judge view that I have accepted the illegible cca as it stands?

4. If CPR 31.14 is till advisable, will the N244 need to be sent at the same time?

5. Is it OK if I contest the claim by bombarding them with all these; illegible cca, no T&Cs sent at the time the account opened, defective DN and UR? or the best strategy is to start with one at a time, how and where to strike again depending how they responded?

 

Thank you guys in advance for your help.

[bustthematrix]

Thanks DD

 

What if they have also sent a recon'd copy? I would have believed that an original and legible copy must be produced at hearing, a recon'd copy merely satisfies cca request under s77/78 of CCA 1974. Is that right?

YES, and this was highlighted by Judge Waksman in his judgement in Carey vs HSBC. Waksman also said that recons are not, in themselves sufficient as fulfilling the S61 proof requirements under the CCA.

 

You may read up on it here Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009)

The recon is hearsay evidence only and you have to put the claimant to strict proof concerning it. You will want to try and find at least one fault with the recon that shows that at the very least, it is NOT a true copy of the executed agreement.

 

What about the defective DN? If I use this as extra ammunition, does it mean that I have accepted the cca as a valid one as it stands? No it doesn't. The DN is served Under the CCA so if the CCA itself is flawed or IEA, accepting an invalid DN and Termination under it does not make the originally flawed agreement valid! If the agreement was IEA, then you would not really need the defence of a Defective Default Notice, unless you wanted to counterclaim etc.

 

And it is more than just 'extra ammunition'. It is a defence in itself but what you get out of it is somewhat different from an agreement that is found to be unenforceable. Look at the below threads

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/208663-tale-dodgy-dn-further.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

and also have a read of ...Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

[bustthematrix]

Check this out C2K

According to the OFT i should add!!

 

May 2008, Susan Edwards, Head of Credit Investigations and Enforcement, Office of Fair Trading

 

Misleading statements to debtors

 

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

[C2K]

 

Thank you btm

 

In your opinion is this an IEA or just an application form as no full original T&Cs embedded and TPs are hardly readable, although presented.

MBNA CCA.pdf

[diddydicky]

creditors are now putting reconstituted agreements to court to support claims

[C2K]

 

Hello btm

 

Thank you for your info, it will keep me busy all night tonight. I note that:

 

"The recon is hearsay evidence only and you have to put the claimant to strict proof concerning it. You will want to try and find at least one fault with the recon that shows that at the very least, it is NOT a true copy of the executed agreement."

 

How about the inconsistent personal info, will it be considered as a fault; the illegible copy of cca shows my last address where the recon'd one shows my current. It may not have much impact on validity of the cca itself, but at least it proves that it's not 100% of the original....

 

Thanks

C2K

[C2K]

creditors are now putting reconstituted agreements to court to support claims

 

so are they succeeded?

[C2K]

Hello RWR

 

Having done some reading, some caggers say the Claimant is not obliged to provide the contract/agreement mentioned in POC if the claim is made via CCBC.

 

Confused... How should I word my CPR 31.14 in this instance?

[RobinWayRobinme]

Whoever told you that is wrong. If CCBC is used to start claim it is different only as much the claimant doesn,t attach copies of docs relied upon. CPR 31.14 works in exactly the same way and you should use it to get copies of docs before filing your defence. Give them 7 days to reply. Check out the sticky on 31.14 for wording etc.

R

L

 

Hello RWR

 

Having done some reading, some caggers say the Claimant is not obliged to provide the contract/agreement mentioned in POC if the claim is made via CCBC.

 

 

Confused... How should I word my CPR 31.14 in this instance?

[C2K]

Whoever told you that is wrong. If CCBC is used to start claim it is different only as much the claimant doesn,t attach copies of docs relied upon. CPR 31.14 works in exactly the same way and you should use it to get copies of docs before filing your defence. Give them 7 days to reply. Check out the sticky on 31.14 for wording etc.

R

L

 

 

Thank you for your clarification.

 

Please excuse my ignorance, what's the point of getting them to provide a copy of cca that I have already got. Any particular reason for this porpose?

[RobinWayRobinme]

I was not aware you had the original agreement. Has the agreement been properly executed? If not, I would still 31.14 the docs in POC just to see what they have and as is more than likely, the agreement may be a re-conned version that may be totally different to your original. The integrity of the claimant is then put in considerable doubt then.

R

[C2K]

I was not aware you had the original agreement. Has the agreement been properly executed? If not, I would still 31.14 the docs in POC just to see what they have and as is more than likely, the agreement may be a re-conned version that may be totally different to your original. The integrity of the claimant is then put in considerable doubt then.

R

 

Hello RWR

 

I am not 100% sure if the attached cca is enforceable as it stands, no creditor's sig, unreadable PTs, no full T&Cs enbedded, (but it was sent seperately as in recon'd format). Please check out my post #42 and further comment will be appreciated. Thanks again.