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

[The Mould]

I have today received a claim form dated 23/07/2010 from Restons (MBNA) via Northampton (CCBC). I intend to defence the claim but English is not my first language, please I need some guidance.

 

I had a pre 2007 credit card with MBNA with a substantial outstandings. I made a CCA request back in 10/2009, I ceased all further repayments completely only after MBNA just sending me a copy of application form filled mith my personal details and signature, together with a reconstituted agreement with T&Cs in response to my CCA request. Although the PT was presented on the application but totally illegible.

 

MBNA registered the account status as being in default status history '8' on 29/01/2010

 

MBNA served me a DN by UKMail which was received by me on 12/02/2010, the DN dated 08/02/2010 with a remedy date 25/02/2010.

 

I intend to contest the claim on the grounds of unlawful rescission, I will argue that the DN was only served after having terminated the account by filing the account status as being in a default with Experian. According to the 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

".

In support of my argument, I think the crucial point is part of the Experian's explanation as to "default status history '8'" states that the credit agreement has ended. I have since written to MBNA to accept the unlawful rescission. I have also written to Experian asking the CRA to clarify the explanation as to "default status history '8'" should litigation takes place. The CRA replied and confirmed that:

"lenders are fully aware that an agreement/account would deem to have been ended/terminated/cancelled by filing the account status as being in default status history '8'"

.

Further, the comm log MBNA that sent me in response to my SARS has also confirmed that the account was indeed charged off on 29/01/2009.

 

I know I can file an acknowledgement of service online, but I am still a bit confused with the correct procedure and timescale. As I said English is not my first language, I need someone kindly draft a defence statement for me so that I may start the game!

 

Many thanks in advance for those who have helped.

 

C2K

 

Hello C2K

 

What do the words say on the Default Notice for the remedy, does it say 'before the date' or does it say 'by the date'?

 

Do not state 'unlawful recission'.

 

If they have terminated the account on the foundation of a defective/invalid Default Notice, then it is a fundamental breach of contract and the non-breaching party (you in this case) is entitled to treat your obligations as discharged.

 

Have you made any payments since the default or termination or have you made any admission of the debt or made any offer to pay any amount towards the debt?

 

Kind Regards

 

The Mould

[The Mould]

Have you sent in a CPR 31.14 request for disclosure of the documents that the claimant intends to rely on yet?

 

Embarrassed defences do not work C2K!

 

The Default Notice is invalid, generated on the 8th, received on the 12th, remedy date is stated as before the 25th.

 

12th plus 14 days = 26th, however, before 25th = remedy date 24th, conclusion, 2 days short and I have not checked the working (business) days/dates available between those above-mentioned dates.

 

N244 Application notice to the Court requesting and order to strike out claim based on invalid Default Notice - fundamental breach of contract by the creditor, you are not legally responsible for the amount claimed, you are only liable for any arrears that were due before the said breach of contract, you have accepted recission of the contract as the remedy for the non-breaching party and you are entitled to treat your obligations under the agreement as discharged.

 

File and serve the Application notice to Court along with the above and a copy of the Default Notice £75.00 fee and also copy your opponent or his Solicitors in on the indisputable facts, check mate.

 

How much do the arrears amount to?

 

Kind Regards

 

The Mould

[The Mould]

OK, the Default Notice, as it stands is enough for a strike out (N244).

 

The 12th is a Tuesday, the remedy before date 25th is a Monday, so the before day is a Sunday (24th) that means you need to remedy the breach on Saturday the 23rd, however, the statutory 14 business days would take the remedy date to 27th, 4 days short of statutory 14.

 

I agree with IDAH, your credit file info will act as a very comfortable buttress to the invalid DN.

 

Arrears only is what you are liable for.

 

If you plead unlawful recission, the implication is that the agreement is still live or that you want it to go on, that would mean your creditor can re-issue a valid DN and start again.

 

Kind Regards

 

The Mould

[The Mould]

Well, you can request disclosure of a copy of all documents the claimant intends to rely on in the action under CPR 31.14 and using 31.15 you should state that you are willing to cover his reasonable copying costs, then he must comply with your request by not more than 7 days.

 

Kind Regards

 

The Mould

[The Mould]

My calendar says the 12th Feb is a Friday. The 24th is a Wednesday and the 25th therefore is obviously is a Thursday.

 

Statutory 14 days from service (first class) would be 24th Feb (8th + 2 + 14). If you can argue (and prove, as that seems to be the way the Judges work) that the DN was sent 2nd class then the 'by' date would have to be the 26th.

 

As I understand it, weekends only 'count' if they interfere with the postage - i.e. post on a Friday, and both Saturday and Sunday do not count when working out the date of service; BUT the 14 days allowed for remedy does not give you time off at the weekends to cut the grass or do the shopping - the clock is still counting.....

 

Yes, blimey, my mistake, I was looking at January, Doh.

 

So, if the 12th (date received) is a Friday (2nd class), the remedy date is stated as before 25th, so the 24th (Wednesday) is the remedy date, however, I make the remedy date as being the 27th (Saturday) 14 clear days.

 

I understand the shopping and mowing, but shopping and mowing is not part of the legislation contained in the CCA 1974 (amended).

 

If the business is not open on Sunday, how can one remedy on a Sunday?

 

If a party has in his possession a document that he intends to rely on in the proceedings, it is his duty to disclose that document to the other party to the action. CPR 31.11 Duty to disclose continues until proceedings have concluded, applies to both the claimant and the defendant.

 

Cleary in a case such as this type there has to be a Default Notice involved, the creditor will need to satisfy the Court that he has the right to bring the action and demand the amount claimed be enforced by order of the Court, he can only do this by disclosing a valid Default Notice.

 

Again, sorry about the calendar mix-up.

 

Kind Regards

 

The Mould

[The Mould]

I was posting and I was cut off.

 

I had made an error on the calendar, I was looking at January.

 

Kind Regards

 

The Mould

[The Mould]

I am still waiting to hear if my other post will be put up in this public forum.

 

There is nothing in it that is offensive in any way, I was merely correcting my mistake with the dates and going over some futher info regarding Default Notice.

 

Kind Regards

 

The Mould