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C2K

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

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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

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Hi C2K,

 

Your findings are very interesting to me as MBNA have also registered a default on my credit report on 31 March 2010 yet the (defective) default notice they sent me is dated 9 April!!

 

There are some great people here who will help you out.

 

All the best,

CM

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Hi C2K,

 

Your findings are very interesting to me as MBNA have also registered a default on my credit report on 31 March 2010 yet the (defective) default notice they sent me is dated 9 April!!

 

There are some great people here who will help you out.

 

All the best,

CM

 

Thanks Chipmeister

 

I think MBNA has a habit of terminating an acoount, then send a DN out.

How did you get on with your case?

 

C2K

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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

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Hi C2K

 

I have some experience, rather than being an 'expert', but the first thing I suggest you do is ACKNOWLEDGE the claim on-line. This is quite straightforward and will get you an extra 14 days (28 days rather than 14) to file a defence.

 

Next (before the 28 days are up) I would suggest you file an "embarrased" defence. This too can be done online and will give you sufficient time to prepare your full defence.

 

As the claim was issued through the bulk centre you will not have received detailed particulars of claim or know what arguments and supporting documents they will be relying on.

 

It's good that you still have the DN and the envelope - these can be compared with the evidence the Claimant will be relying on (when you receive it) and it may show that their evidence is flawed.

 

The documents they will be relying upon are likely to be 1) the agreement 2) the DN and 3) copy statements (but these are unlikely to cover the whole period that you had the credit card) 4) any other correspondence between you and them that they find useful in support of their arguments. After receiving your embarrased defence from the Court this will lead to Reston's issuing a fully particularised claim which will include a witness statement and the above evidence. You will also receive an Allocation Questionnaire from the Court which you MUST complete and return on time.

 

In the meantime, if you could post up your DN and the claim form you received (with all your personal details hidden) the experts here can take a critical look at them.

 

I'll be subbing and will add what I can to help you later on

 

IDaH

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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

 

Hello The Mound

 

MBNA states that the remedy date "by dd/MM/yyyy". However, the prescribed text states "BEFORE THE DATE SHOWN".

 

No repayment, no offer made since default was registered.

 

I am inclined to contest their claim both on the grounds of defective DN (but not 100% sure) and unlawful rescission as the DN was served after having terminated the account by filing the account status as being in default; the lender is effectively sending me a clear message that the account is "terminated/ended/cancelled" according to the CRA's clarification.

 

Thank you for you input.

 

C2K

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Hi C2K

 

I have some experience, rather than being an 'expert', but the first thing I suggest you do is ACKNOWLEDGE the claim on-line. This is quite straightforward and will get you an extra 14 days (28 days rather than 14) to file a defence.

 

Next (before the 28 days are up) I would suggest you file an "embarrased" defence. This too can be done online and will give you sufficient time to prepare your full defence.

 

As the claim was issued through the bulk centre you will not have received detailed particulars of claim or know what arguments and supporting documents they will be relying on.

 

It's good that you still have the DN and the envelope - these can be compared with the evidence the Claimant will be relying on (when you receive it) and it may show that their evidence is flawed.

 

The documents they will be relying upon are likely to be 1) the agreement 2) the DN and 3) copy statements (but these are unlikely to cover the whole period that you had the credit card) 4) any other correspondence between you and them that they find useful in support of their arguments. After receiving your embarrased defence from the Court this will lead to Reston's issuing a fully particularised claim which will include a witness statement and the above evidence. You will also receive an Allocation Questionnaire from the Court which you MUST complete and return on time.

 

In the meantime, if you could post up your DN and the claim form you received (with all your personal details hidden) the experts here can take a critical look at them.

 

I'll be subbing and will add what I can to help you later on

 

IDaH

 

Hi IDaH

 

Thank you for your info. What should I exactly state in the defence section, would just a brief bullet points outlining the reasons behind the defence be sufficient at this moment?

 

I will try to upload the docs for your further comment later today.

 

Thank you.

 

C2K

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Hi IDaH

 

Thank you for your info. What should I exactly state in the defence section, would just a brief bullet points outlining the reasons behind the defence be sufficient at this moment?

 

I will try to upload the docs for your further comment later today.

 

Thank you.

 

C2K

 

 

Please find attached the docs as promised. Is this DN OK?

CountyCourtClaim 23.07.2010.pdf

MBNA DN 08.02.2010.pdf

Experian - clarification on DEFAULT status history 8.pdf

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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

  • Haha 1

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Not disagreeing with Mould about embarrased defences "not working" BUT it is unlikely you willl have all the documents you request under CPR 31.14 in time to file a full defence before the time limit expires - hence the embarrassed defence is a holding defence until you have all the information required to submit a full defence. The other point is that CPR 31.14 only allows you to request copies of documents disclosed. The only disclosed document at the present time, based on the claim form you have received, is the alleged contract.

 

When they issue a fully particularised claim, Restons will no doubt claim your DN was sent First Class. Therefore, with a date of Monday 8th February they will claim service on the 10th February. So, a 'by' or 'before' date of 25th would give you at least 14 days to respond, as required under Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) Schedule 2(3). So that is not an argument on it's own - you will have to argue that the DN was not sent First Class but by another (slower) postal service and get Restons' to prove otherwise. If they can't THEN the DN would be invalid.....

I would suggest that if at this stage you bang off an application for a strike out based on the DN being faulty you will be unlikely to succeed. Wait until the Claimant claims First Class post was used for service - THEN you can challenge it - at the moment, I would suggest, you are not in a position to do that.

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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

 

Not disagreeing with Mould about embarrased defences "not working" BUT it is unlikely you willl have all the documents you request under CPR 31.14 in time to file a full defence before the time limit expires - hence the embarrassed defence is a holding defence until you have all the information required to submit a full defence. The other point is that CPR 31.14 only allows you to request copies of documents disclosed. The only disclosed document at the present time, based on the claim form you have received, is the alleged contract.

 

When they issue a fully particularised claim, Restons will no doubt claim your DN was sent First Class. Therefore, with a date of Monday 8th February they will claim service on the 10th February. So, a 'by' or 'before' date of 25th would give you at least 14 days to respond, as required under Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) Schedule 2(3). So that is not an argument on it's own - you will have to argue that the DN was not sent First Class but by another (slower) postal service and get Restons' to prove otherwise. If they can't THEN the DN would be invalid.....

 

I would suggest that if at this stage you bang off an application for a strike out based on the DN being faulty you will be unlikely to succeed. Wait until the Claimant claims First Class post was used for service - THEN you can challenge it - at the moment, I would suggest, you are not in a position to do that.

 

Thank you so much for your input guys

 

I have not even acknowledge the service yet because I am not so sure about what and how to construct my defence statement.

 

If you guys have read the background of this case, I am actually thinking defending the claim on the grounds of unlawful repudiation, registered the account as being in default before DN was sent. Should I need to mention this in my defence statement?

 

I have not sent CPR 31.14 as yet. I actually have a copy of DN Restons sent me that in response to my request and it is a reconstructed one, but the contents are identical to the true copy that MBNA sent (see previous attachment).

 

With regard to the proof of posting of the DN, glad I kept the envelope following other caggers advices, it was sent via UKMail S, not sure what it stands for, but I would have believed the big S means standard class, perhaps other gurus will enlighten me - copy of the envelope is attached for comment.

 

I am worried about that defending on the grounds of ineffective DN alone might not give a strong argument as I have heard many stories of DJ lottery; day or two short might be ruled as "typo" or "De Minimis". That's why I am inclined to start my argument including unlawful termination (reasoning is provided in my first thread). Many thanks.

 

Further advices will be greatly appreciated.

MBNA DN envelope.pdf

Edited by C2K

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Hi

 

I agree with you that defending on the basis of a DN which is only defficient in not allowing you enough time to remedy (by two days max) is pretty weak and likely to fail the 'Judge Lottery'. You need something more watertight and which ultimately you could appeal if you get the wrong decision from a DJ.

 

However, if you have documentary evidence of what you claimed in your first post:

 

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

 

and with the backup of the letter from Experian, which says that the claimant was telling them, according to industry standards, that the agreement was terminated on 29th January, you may have enough to go for a strike out of the claim, as they would have no lawful grounds for a claim having terminated the agreement along the lines of:

 

Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can now never have a right of action, as they have terminated the Agreement unlawfully. The Agreement was at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach without following the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

Edited by indebtandharrased

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I would avoid an embarrased defence if at all possible. Check out link below if you haven't already. You can agree to an extension of up to 28 days (CPR 15.5) to give extra time for other side to comply with 31.14 etc. If they don't agree tell them you will have to seek an extension by application and will seek the costs of doing so.

R

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

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I would avoid an embarrased defence if at all possible. Check out link below if you haven't already. You can agree to an extension of up to 28 days (CPR 15.5) to give extra time for other side to comply with 31.14 etc. If they don't agree tell them you will have to seek an extension by application and will seek the costs of doing so.

R

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

I quote from the thread you mentioned above:

 

Such a right is found in CPR 31.14 and is concerned with the disclosure of documents mentioned in pleadings, the very place where the Claimant will refer to the agreement relied upon in even the most sparingly particularised claim.

 

It is clear you cannot request under CPR 31.14 copies of documents which HAVE NOT been mentioned/disclosed in pleadings. Therefore CPR 15.5 does not apply.

 

I could be wrong but:

 

If the particulars of claim only mention the agreement, that's all you can expect to get from a request under CPR 3.14. If you want copies of anything else on which to base your claim, you need to wait for the claiment to mention (or disclose) them before you can request copies under CPR 31.14.

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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

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Then make a Part18 request and ask questions then do a 31.14 based on their reply

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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

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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.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.....

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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

 

Are you sure? I thought the wording was:

 

Documents referred to in statements of case etc.

 

31.14

 

(1) A party may inspect a document mentioned in –

(a) a statement of case;

 

(b) a witness statement;

 

© a witness summary; or

 

(d) an affidavit(GL).

 

So it does not cover documents they MAY rely on but have not disclosed at this early stage.....

Edited by indebtandharrased

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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

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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

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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

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Wow...

 

Once again thank you all for your comments.

 

I must admit this CPRs stuff may be too much for me to take in at once. I am wondering if I really need to go through the CPRs process if my intention is to just file an application to have the claim struck off on the basis of unlawful rescission in this circumstances.

 

T.M. you quote:

 

"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."

 

But, IDaH also quotes:

 

"Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can now never have a right of action, as they have terminated the Agreement unlawfully. The Agreement was at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach without following the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87."

 

Correct me if I am wrong or unless I am missing something, I tend to agree with IDaH here and I think I have read something similar to this before; I would have thought that as long as I have accepted the unlawful repudiation, the agreement would have been put to an end, claimant cannot reissue any DN because there is no agreement that they can serve a new DN upon.

 

Since the agreement is unlawfully terminated and I have accepted it as an "injured party", then the subsequent DN served would be of no legal effect, notwithstanding any disput as to whether the DN is in any event compliant. Will I be complicating my defence if I start the CPRs process, especially I am not familiar with the legal procedures at all; I dont even know what is "embarassed" defence!

 

Let me try to clear this up, here I have two defending options to consider; 1). terminating the account on the back of an ineffective DN. 2). on the basis of no DN served prior to terminating the account. These both will no doubt amount to unlawful repudiation, but I am more inclined to take the option 2 as I feel that the argument on the basis of defective DN alone may not be strong enough, it gives me no real confidence due to "DJ lottery", cos' cases have been reported that DJ ruled that day or two short as De minimis, more importantly the purpose was served!!!! (yes I know, we can laugh)

 

So I really need assistance from you guys in focusing on my intended defence that I feel more comfortable with. In fact, it's has always been my argument since Restons first started sending me the intimidating letters until the actual legal proceedings commenced.

 

Am I clutching at straws?

Edited by C2K

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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)

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