Restons/mbna impending court hearing - urgent help needed please

[ldn_panda]

Hello there, Have been following numerous threads on here over time, which have helped me enormously in getting this far without losing the plot, so thankyou all. You're doing an amazing wonderful job and the success stories are wonderful to read (Fairbyblue a particular favourite !).

 

I have an impending court case this week - an MBNA credit card debt represented by none other than good old Restons. It would help me enormously, if someone could provide some advice with the following points:

 

1) the DN was faulty. Issued without requisite time to rectify. The envelope was UK Mail S - I've been trying to search the site for the evidence that this represents second class mail, which I saw in a thread somewhere.

2) I've seen the Brandon case though. Has the appeal been heard ? Does anyone have a view on the implications of this if the DN was short by a few days ?

2) per statement they charged the account off before issuing the DN (unfairly prejudiced me). I've read conflicting things concerning what charging off represents, i.e. whether it means the account was terminated, done for tax purposes, puts a stop on the account etc. They stopped charging interest a month before, not sure if that provides evidence it was terminated at that point too ? I put in a SAR but haven't yet had a response so don't have customer management system logs to validate term date.

3) restons provided all reconstituted docs but did not provide evidence of audit trail/how reconstituted; simply stated they were provided by debt management team who reconstituted them from their systems and restons believe them (ah, that's nice). Do I have an angle with this ?

4) I remember seeing on a thread a letter from Restons stating they knew that they had no case where the DN was faulty. I haven't been able to find it since. Could someone point me to it ? Can I use this in any way?

 

Thankyou for any help you can provide !

[diddydicky]

more appropriate to your situation is the Harrison V Link/MBNA case recently in which the judge ruled that bad DN = no enforcement.

 

 

clear cut- if the DN is bad then unless it is put right by the service of a valid dn then any legal action brought on the back of the invalid dn will fail

 

 

you can use the comments of the judge in the harrison case viz mbna's incorrect contentions re first class service

 

if you already have been served with court papers- then they have already gone with the invalid DN- so your defence - apart from any other defects in their case needs to refer to this case and the fact that they do not have a cause of action

 

i would apply for a strike out myself on this basis as to continue would be a waste of everyones time and expense

 

no doubt others will advise

[NewToTheFight]

Re item 4 in your request list

http://www.consumeractiongroup.co.uk/forum/showthread.php?160395-Restons-Court-Action-***-WON

 

About the recon docs. If you can prove their 'opinion' to be flawed, with the Dn maybe, you call into question the validity of their other evidence

[ldn_panda]

Hi DD and New to The Fight. Thanks very much for taking the time to respond.

I will reread the Harris case as suggested. I have made a N244 App to Strike Out, mainly citing faulty DN. However, I haven't referred to any cases, rather CCR rules. Can I take copies of the relevant cases with me and refer to them ?

 

I followed the thread but couldn't find the Reston's letter I was thinking of...it was a letter from them to a judge admitting that they basically didn't have a case where the DN was faulty. Is there a way to contact the site team to see if they can help locate it ?

 

re the second class mail, again thanks for the tip re the Harrison case. In case I need evidence that the UK Mail is definitely 2nd class , I do remember someone posting evidence (UK Mail terms or something) onto someone's thread, but just can't locate it.

 

Likewise on the charge off point, I remember someone posting some evidence that had been given by MBNA themselves - someone working there had answered as to what charging off means, basically saying it meant termination. Was thinking that would be useful to have, but again can't find it.

 

One thing I forgot to ask about is how to deal with Reston's response to my N244. They stating that because I haven't filed a defence, oppose my app to strike out, they are applying for summary judgement. What are the implications of this and how do I best deal with this in the event my app does not succeed ?

 

Finally had a bit of a nightmare with getting my app in. Restons didn't provide docs until week ago, I updated my app to strike out (first time didn't have the full picture on DN etc) and sent it off. I didn't include the right fee so it got returned. I sent back straight away but worried my docs won't get accepted as it is too late...any advice on the best way to approach this on the day with the judge/restons....ask to get considered, defer etc ?

 

thanks everyone

[diddydicky]

Hi DD and New to The Fight. Thanks very much for taking the time to respond.

I will reread the Harris case as suggested. I have made a N244 App to Strike Out, mainly citing faulty DN. However, I haven't referred to any cases, rather CCR rules. Can I take copies of the relevant cases with me and refer to them ?

 

I followed the thread but couldn't find the Reston's letter I was thinking of...it was a letter from them to a judge admitting that they basically didn't have a case where the DN was faulty. Is there a way to contact the site team to see if they can help locate it ?

 

re the second class mail, again thanks for the tip re the Harrison case. In case I need evidence that the UK Mail is definitely 2nd class , I do remember someone posting evidence (UK Mail terms or something) onto someone's thread, but just can't locate it.

 

Likewise on the charge off point, I remember someone posting some evidence that had been given by MBNA themselves - someone working there had answered as to what charging off means, basically saying it meant termination. Was thinking that would be useful to have, but again can't find it.

 

One thing I forgot to ask about is how to deal with Reston's response to my N244. They stating that because I haven't filed a defence, oppose my app to strike out, they are applying for summary judgement. What are the implications of this and how do I best deal with this in the event my app does not succeed ?

 

Finally had a bit of a nightmare with getting my app in. Restons didn't provide docs until week ago, I updated my app to strike out (first time didn't have the full picture on DN etc) and sent it off. I didn't include the right fee so it got returned. I sent back straight away but worried my docs won't get accepted as it is too late...any advice on the best way to approach this on the day with the judge/restons....ask to get considered, defer etc ?

 

thanks everyone

 

you must disclose to the court and then other side in advance what cases you intend to refer to for authority- just as they must...in order that they can refer to it as well if they need to

[ldn_panda]

hmm ok well, then looks like I can't refer to Harris....or other docs. I should have come on here to ask earlier, but just been swamped with trying to get the app done, working very long hours, looking after a little one etc..... my own fault, but thinking it would still be useful to have copies of those docs and that I could always ask them a direct question on the matter....have they ever admitted a faulty DN renders claim invalid ? although don't want to try and be too clever .

 

are you able to help with my questions on SJ and late docs ? or know who could ?

 

thanks again

[ldn_panda]

Hi DiddyDickky, I've just been reading the long thread on s87 between you and PeterBard and it raised a concern in my mind.

If one's defence goes along the lines that the lender has issued a faulty DN and terminated the contract, should the debtor still state that they accept the lender's unlawful rescission ?

From previous threads the argument went that this would mean only arrears up to term were due, but there was a possible counterclaim for damages (citing relevant case law).

There was reference to somebody accepting termination (pumpkinhead) and wondering if the view has changed ?

[NewToTheFight]

http://www.consumeractiongroup.co.uk/forum/showthread.php?124572-HFC-No-Agreement-Amended-defence-help-please-**WON**/page14

Read the letters, about 1/2 way down is the admission that they know they cannot proceed without a correct Dn, apologies for sending you to the wrong place.

Re point 3

You have an angle which it may well benift you to explore, the method for document storage and retrieval are worth investigating

There is also a CPR rule that says the original document should be available

Link to Harrison

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

 

See Diddy's post 2 he is much more experienced than me

 

Watch Restons for giving you no advance notice of their costs, they may not even give you witness statements before you get to court

Regarding your late submissions, apologise to the court & try to prove you were waiting for them

IMHO

[ldn_panda]

Well, app to strike out failed - the Judge wouldn't even consider my points about a faulty DN & being prejudiced as they had terminated the account before issuing the DN and then gone on to enforcement action...stated that it was a matter for trial only.

And then he tried to put the frightners on me about how the claimant's costs could add on another 11 k to the claim.

 

But the part I found really interesting, unfortunately in hindsight, was how he asked the claimants counsel about matters of law, how he should interpret certain cases and let her quote from cases that they hadn't put in their witness statement. I learnt a very valuable lesson - there's always a silver lining . And next time I will be asking the judge why he is asking her to clarify some part of the law when she is clearly prejudiced against me and that if they carry on like that I will be asking for an adjournment.

 

but now I have to put my defence together.....which mainly hinges around an invalid DN followed by enforcement action (claiming the balance etc) but being preceded by termination.

 

I'd really appreciate help with a few points

 

- how do i prove that UK Mail S = 2nd class

- how do I prove what charging off means.

 

thanks !

[ldn_panda]

could anyone help with my questions ? I have to get my defence in this weekend, after N244 thrown out, seemingly faulty DN isn't even a case for considering N244 per my judge, but then again he thought it acceptable to take a lesson in case law from the claimant's counsel.

 

Working insane hours at work, plus a little one to look after, not leaving me much time at all to get this together, so any help is gratefully received