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

[RobinWayRobinme]

Did you take a copy of the unexecuted agreement before returning it to lender? or was a a copy of executed agreement complying with s.63 of CCA? Its not very clear but I'll try to look over it a little later today.

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.

[C2K]

Did you take a copy of the unexecuted agreement before returning it to lender? or was a a copy of executed agreement complying with s.63 of CCA? Its not very clear but I'll try to look over it a little later today.

R

 

 

OK, let me clarify. In response to my s78 cca request MBNA sent me a copy of the application/agreement (as previously attached) together with a recon'd cca with full T&Cs.

 

No, I didn't take a copy before returning the application/agreement to the lender. The other side of the copy they sent me is just some promotional material, nothing relates to the actual application/agreement and I have never received a full T&Cs for sure.

 

Just had a good read about s63 of CCA 1974, I believe the s63(1) applies to my case and this cca may not have been properly executed according to s63. as the requirement for Lender to send an executed cca, that would have included full T&Cs including 'Right to Cancel' etc. has never met.

 

Having done my research on the subject about CPR 31.14. I think there's of advantage in getting them to supply the contract they mentioned in the POC, I have therefore adopted and edited the CPR 31.14 request sample letter in the forum and sent to Restons today.

 

It may be too late to perfect the letter now, but please do take a look at the attached copy and let me know if it makes sense.

 

Many thanks.

CPR 31.14 Request 03.08.pdf

[RobinWayRobinme]

Just had a look at letter. Although a couple of bits in there that IMO maybe not needed, the content has everything you need for a 31.14.

[Davetherave12]

Subbing!!

[squidward]

Hi C2k

 

Very interesting I have a very similar cas as to yours

 

you can have a look here http://www.consumeractiongroup.co.uk/forum/legal-issues/267633-help-arrow-global-court.html

 

Good Luck

 

Squidward

[C2K]

Hi C2k

 

Very interesting I have a very similar cas as to yours

 

you can have a look here http://www.consumeractiongroup.co.uk/forum/legal-issues/267633-help-arrow-global-court.html

 

Good Luck

 

Squidward

 

Hello squidward

 

Agreed. I have just finished reading your thread and found the advice from all those experienced caggers of useful to me too.

 

I will be watching with great interest as your case progresses.

 

Good luck too.

 

C2K

[bustthematrix]

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

Yes, that's at least one thing but try and find at least one other thing within the body of the agreement itself. You want to cast enough doubt to show that the lender is perjuring the court, if indeed they are!

[bustthematrix]

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.

C2K, is this what was sent to you in response to a S78 or is it your own copy of what you signed? If you have an original, you will want to post it up asap (private details suspended). If it's IEA, it's game over.

 

It does look non-compliant in at least the following respects (but I am not a CCA expert so be warned!)

1) An application form yet an agreement???

Section 59 of the Consumer Credit Act 1974

59 Agreement to enter future agreement void

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations.

2) Clearly Illegible T&C's are not acceptable

3) No signature from creditor. This ties in with 1) above. The reason there's no creditor signature slot is because it is an application form! It appears to have been converted into an agreement but was not designed as one and so would not have been presented to you as one but rather as an application form!

[bustthematrix]

C2K

 

Further to my comments about the application form not being a valid agreement, have a look at this post http://www.consumeractiongroup.co.uk/forum/mbna/242602-county-court-claim-received-19.html#post3036518 for some excellent points on rebuttal of application forms as invalid agreements and recons as unacceptable evidence.

 

It seems clear that the application form-cum-agreement you have posted up in #42 does not conform to more than one regulation and is therefore not a compliant agreement, IMO!

 

HTH

[barrowby]

Subbing....Great Thread and I am in a similar position so gleening what I can!

[C2K]

C2K, is this what was sent to you in response to a S78 or is it your own copy of what you signed? If you have an original, you will want to post it up asap (private details suspended). If it's IEA, it's game over.

 

It does look non-compliant in at least the following respects (but I am not a CCA expert so be warned!)

1) An application form yet an agreement??? 2) Clearly Illegible T&C's are not acceptable

3) No signature from creditor. This ties in with 1) above. The reason there's no creditor signature slot is because it is an application form! It appears to have been converted into an agreement but was not designed as one and so would not have been presented to you as one but rather as an application form!

 

I dont have the original, this is what I was sent together with a copy of recon'd cca that in response to my request under s78 CCA 1974. They never sent me any properly executed cca copy.

 

They may have complied with s78 cca request in this respect. However, I would have believed that the original docs will have to be there at trial according to HH Judge Waksman's judgment in Carey v HSBC case.

 

You have provided some valid points and these will certainly help me prepare my defence. Many thanks.

[C2K]

Please help!

 

I have today received response to my CPR 31.15 & Part 18 from Restons, I need to file my defence by 4:00 p.m. 25/08/10.

 

Should I respond to Restons, file an ED or fire off a N244 ask the court to strike out the claim on the basis on frustrating my defence?

CPR 31.15 Request.pdf

CPR Part 18 Request.pdf

CPR 31.15 Response.pdf

CPR Part 18 Response.pdf

[diddydicky]

what docs did you ask for in the cpr18?

[C2K]

what docs did you ask for in the cpr18?

 

Thanks DD

 

Please see an attachment "CPR Part 18" from my last post for details.

I see you have recently won a "battle" against Restons, please accept my belated congratulation.

If you have no objection I might structure my defence based on yours.

Further comments will be appreciated.

[C2K]

what docs did you ask for in the cpr18?

 

Thanks DD

 

Please see an attachment "CPR Part 18 Request" from my last post for details.

I see you have recently won a "battle" against Restons, please accept my belated congratulation.

If you have no objection I might structure my defence based on yours.

Further comments will be appreciated.

[ltc1607]

sub

[diddydicky]

yes i see- you fell into the trap of making a SAR request via CPR18 and included stuff that was mentioned in the POC

 

cpr31.14 is for stuff that is mentioned or REFERRED TO in the POC (such as the agreement)

 

CPR18 is for stuff that is NOT mentioned in the POC but which is essential for you to prepare a full defence

 

and much of what you requested- as restons have stated

 

isnt

 

do feel free to use and adapt anything of mine

 

it is not perfect but LIP's are given some lattitude

[C2K]

Hi guys

 

Here's an update on my case:

 

I have filed an semi-embarassed defence together with N244 application for an order to strike out. The court acknowledged receipt of my defence and it was being served to the other side.

 

Todate, I received a General Directions Order from CCBC that the application must be heard on notice to the claimant and transfer the action to my home's court. It also says that I may within 7 days apply to set aside or vary the order under rule 23.10. I must file with the court, and serve on the other parties an application that sets out my reasons for the objection. A fee is payable .......

 

Note:

In my statement of defence submitted along with my N244 I did seek directions from the court that the proceedings be generally stayed for a period of 28 days to allow the Claimant to further particularise his claim and clarify the terms under which he claims against me in such details as required by CPR part 16. Such directions to further require that the relevant documents previously requested by me via my recent CPR18 Request dated 09 August 2010 are disclosed prior to me being expected to submit a defence.

 

What should I do now? Do I have to pay the cost for the application to be heard in my local court? Please can someone provide further advice.

 

Many thanks.

[C2K]

I need to act quick, can anybody help?

 

BUMP!

[C2K]

Bump!

 

Bump!

 

Bump!

[Notasniceasjoe]

Sorry I can't help, but if you need really urgent attention I've previously been advised that by reporting your own post a staffer will take a look at it and can alert someone who can provide assistance.

[citizenB]

have you had a look at diddydicky's thread ? There may be some information on there that will be useful. You could always pm dd and ask him to look in on you.

[diddydicky]

i presume you will have to pay a £75 fee

[C2K]

Thanks DD

 

I am not sure, but I have already paid the fee £40 for my application to be dealt with without hearing?!