MBNA / Idem... in court Friday 31 March 2014.. help needed. ** Claim Dismissed **

[jackreacher]

Your arguments that did not get submitted can be used again.

 

 

The claimant may decide it is easier to proceed using non litigious debt collecting

methods.

 

Thanks Brigadier.. The judge has left the door open on some strong points.. i wondered why they wee not considered.

 

As for other collection methods .. :lol:

[BRIGADIER2JCS]

Thanks Brigadier.. The judge has left the door open on some strong points.. i wondered why they wee not considered.

 

As for other collection methods .. :lol:

 

 

I guessing the judge had concluded that to pursue the other points would be for another time, and it was not appropriate to continue as the main point was the wrongly constituted default and termination not the non compliance with CCA 1974.

 

 

I'm thinking that the CCA matters will need some considerable court time which was no available at this hearing.

[unclebulgaria67]

I am pretty sure I have come across a few forum threads where a new default notice had been issued involving MBNA. Have a search around on CAG and google on reissued default notices-. I thought someone who posted on CAG had found a Solicitor who specialises in Consumer Credit law who had won on a no win no fee basis.

[jackreacher]

I am pretty sure I have come across a few forum threads where a new default notice had been issued involving MBNA. Have a search around on CAG and google on reissued default notices-. I thought someone who posted on CAG had found a Solicitor who specialises in Consumer Credit law who had won on a no win no fee basis.

 

Thanks Uncle B

sounds good. If the name turns up let me know, & I will have a google..

 

I know they can reissue on a unilateral agreement. but when the agreement is bilateral and they terminate I am unsure how that would work. Surely it would need my consent to enter back into another agreement. After all , the Agreement was terminated unlawfully, .never the less it was terminated. The other party broke the agreement, by terminating while I was paying.. In theory I should have a claim for damages.

 

I will wait for the Estoppel expert..lol

[jackreacher]

Found This ... looks like they may not be able to reissue.

 

Finally got to the end of Goode's excellent clarification.

 

The quote above best sums up the meaning of s 170.

 

An error made as part of a requirement of the act does not represent a breach of contract, but merely the minor breach of a procedure which is correctable under the act.

 

For example, if a justified but technically faulty DN is issued with regard to a genuine default, s 170 would apply, as the issuing of a DN is a requirement of the act when pursuing a default. Outside of s 170; If, say, despite those errors the monies were paid, it would indicate that the debtor accepted the DN to have validity, and in making the payment, accepted the DN with the errors there in - no unlawful act would have taken place. If it was then contested in court that the monies were not due, as the DN had been faulty, the decision would be clear cut: as the DN (either proper or faulty) was a requirement of the act, and therefore protected by s 170, it must be dealt with within the act, and there is nothing to specify that monies paid correctly are recoverable.

 

An error made that is not part of a requirement of the act is not protected by s 170.

 

For example, where a DN is issued by the OC, but no default has occurred, the action has not been taken as a requirement of the act, but as an unchecked error. According to Goode, this would not be covered by s 170, and therefore open to action under common law, meaning that the breach will allow the injured party to take any action available, including accepting the breach as an offer of rescission.

 

So basically, if you follow the act correctly, a simple technical error will not be allowed to breach the overall contract, though your actions will require correction. However, if you act outside of the act in administering the agreement, it will constitute a breach of contract, and you are no longer protected by the act and open to action under common law. S 170 only applies where the act is properly observed.

[BRIGADIER2JCS]

Found This ... looks like they may not be able to reissue.

 

Finally got to the end of Goode's excellent clarification.

 

The quote above best sums up the meaning of s 170.

 

An error made as part of a requirement of the act does not represent a breach of contract, but merely the minor breach of a procedure which is correctable under the act.

 

For example, if a justified but technically faulty DN is issued with regard to a genuine default, s 170 would apply, as the issuing of a DN is a requirement of the act when pursuing a default. Outside of s 170; If, say, despite those errors the monies were paid, it would indicate that the debtor accepted the DN to have validity, and in making the payment, accepted the DN with the errors there in - no unlawful act would have taken place. If it was then contested in court that the monies were not due, as the DN had been faulty, the decision would be clear cut: as the DN (either proper or faulty) was a requirement of the act, and therefore protected by s 170, it must be dealt with within the act, and there is nothing to specify that monies paid correctly are recoverable.

 

An error made that is not part of a requirement of the act is not protected by s 170.

 

For example, where a DN is issued by the OC, but no default has occurred, the action has not been taken as a requirement of the act, but as an unchecked error. According to Goode, this would not be covered by s 170, and therefore open to action under common law, meaning that the breach will allow the injured party to take any action available, including accepting the breach as an offer of rescission.

 

So basically, if you follow the act correctly, a simple technical error will not be allowed to breach the overall contract, though your actions will require correction. However, if you act outside of the act in administering the agreement, it will constitute a breach of contract, and you are no longer protected by the act and open to action under common law. S 170 only applies where the act is properly observed.

That will be one for the judge to decide should it become necessary Jack.

I think it's wait and see what come up. I guess there will be a lot of discussion going on else where.

[shamrocker]

Plan for the worst, harshest most prejudiced pompous barstuard and you will be pleasantly surprised.

 

i can not find the front of you Application form what post is it at

 

Hi JR.. was this directed at me?

 

Assuming you checked through the thread related to my case, there aren't other pages for the agreement other that those I've posted on the thread. That's what the claimant is relying upon as evidence of the agreement.

[AndyOrch]

Nice result Jack...delighted that you have manage to resolve this.

 

Regards

 

Andy

[jackreacher]

Hi JR.. was this directed at me?

 

Assuming you checked through the thread related to my case, there aren't other pages for the agreement other that those I've posted on the thread. That's what the claimant is relying upon as evidence of the agreement.

 

Yes Shamrocker..lol

 

what post is the front of your application at.. I will have a look through.

[jackreacher]

Nice result Jack...delighted that you have manage to resolve this.

 

Regards

 

Andy

 

Thanks Andy.. Couldn't have done it without your input... I know I am hard work but somehow with CAG help I have managed two amazing results

Still waiting on my lloyds/ SCm cheque but it is coming and have reached a fair agreement over my costs. (Donation Coming)

 

Andy, any idea if they can reissue a DN on a bilateral agreement when they are the breacher??

do you think they will reissue? Cost them a lot of money so far to fail.

 

Regards to you as always Jack

[AndyOrch]

The agreement has been terminated once litigation proceeds....you cant backtrack to correct an error as there is no longer an agreement to correct.

[jackreacher]

Thanks Andy, Bloody Brilliant news. :whoo:

I know there are varying theories on this but am assured by what you say.. I see it your way as well. nothing else makes any sense.

 

I am allowed to apply for wasted costs from my second hearing .. about £500 because that as the one and only time I had any legal rep.Barrister. But they did not comply with Judges orders and it as adjourned. How do I do that. The Judge ordered no costs. So I am not sure if the wasted order application can go ahead?

[shamrocker]

Yes Shamrocker..lol

 

what post is the front of your application at.. I will have a look through.

 

Hi Jack

 

Here's the agreement in page 8 of my thread... http://www.consumeractiongroup.co.uk/forum/showthread.php?404641-MBNA-court-Activ-Kapital&p=4570471&viewfull=1#post4570471

 

I just noticed that you had posted on my thread. Thanks for that!! As you probably noticed, I've been assisted by Andy and, to a greater degree, The Mould. Consequently, I think I have the basis for a decent defence, but given that you've been through this with an MBNA account and seem to have a knack for doing well in the lion's den, I felt it was worth asking if you had anything to add.

 

BTW, I haven't seen The Mould on here lately. Does anyone know if there's any problem? Wishing you well TM, if you're looking in.

[AndyOrch]

You should have raised the question of costs during any hearings.

[jackreacher]

It was raised in the final hearing. it was also raised in judges orders.

The judge never gave me a chance in the judgement hearing. I thought it was one of those things you applied to the court for as it was in judges directions. Valuable lesson learned!

[DonkeyB]

Didn’t case law clarify that a new DN could be issued? Phoenix v Kotecha? The reasoning given was that the account could not actually have been terminated as the DN was faulty – this is what scuppered the ‘rescission’ arguments.

 

However, in this case, I think the creation of a new agreement possibly voids the original.

[BRIGADIER2JCS]

Didn’t case law clarify that a new DN could be issued? Phoenix v Kotecha? The reasoning given was that the account could not actually have been terminated as the DN was faulty – this is what scuppered the ‘rescission’ arguments.

 

However, in this case, I think the creation of a new agreement possibly voids the original.

 

 

Yep producing a new compliant DN is allowed quite often.

If a new agreement/rewrite is made it takes precedence. (provided it is agreed and accepted by the debtor, not done without the debtors knowledge as a certain now defunct company tried to do).

[jackreacher]

I think what is important is the bilateral agreement succeeded the original agreement and it was the creditor who breached the bilateral first. In my opinion, Under normal circumstances I would have an automatic claim for damages. (then I am biased lol)

 

The Bilateral may not even fall under the CCA regs who knows?

 

I suppose technically they breached the bilateral agreement and also wrongly defaulted the original agreement.

 

I am with Andy on this as it is not the same as the Harrison Dn, which was still within the original unilateral agreement.

 

they wont come back any way despite their threats..

[jackreacher]

Hi,,

 

I now need to get hold of a copy of the judgement. How do I do this?...how much? do I have to pay for all of it, as it is 2 hours long? I just want the last 1/2 hour

 

Is there any cheap way of getting hold of it. benefits, child support unemployed etc.

 

Regards Jack

[DonkeyB]

You need form EX107, but you need to apply for the tapes via a court-authorised transcription service (who will act as your agent). You fill in the form and apply, and the tapes are delivered to your transcriber.

 

Google is your friend – try ‘court transcription service’.

 

I used a company in Milton Keynes which was fast and cheap, but there’s plenty out there to request quotes from.

 

Not sure if you can ask for just part of such a short hearing – ask the transcriber.

 

Doubt there’s any concessions – it’s a private rather than public service.

[jackreacher]

You need form EX107, but you need to apply for the tapes via a court-authorised transcription service (who will act as your agent). You fill in the form and apply, and the tapes are delivered to your transcriber.

 

Google is your friend – try ‘court transcription service’.

 

I used a company in Milton Keynes which was fast and cheap, but there’s plenty out there to request quotes from.

 

Not sure if you can ask for just part of such a short hearing – ask the transcriber.

 

Doubt there’s any concessions – it’s a private rather than public service.

 

Hi DB,

 

The hearing was adjourned for 2 months while the Judge considered the legal arguments... two months later he gave his judgement that took " 2 Hours...

 

I can't afford near £400.

 

The Estoppel that won it for me was really detailed and would be of use to many in the future. Particularly as I had stopped paying 18 months before court proceedings. Normally you still have to be paying a token payment to win estoppel , (from what I have read).

 

regards Jack

[jackreacher]

A few months ago I won my case on estoppel, the claimants case was dismissed. They are now threatening to come back in with fresh proceedings.

 

Probably just grasping at straws...Should I send a reply if so I will definitely need some input. Regards Jack.

 

We write further to the above matter and following the judgement hearing on 22 August 2014.

 

At the hearing the court ordered that the claim be dismissed but also dismissed your counterclaim. The court made an order of no costs in relation to the parties costs in these proceedings.

 

To explain further, the Deputy judge Stacey dismissed all of your submissions made in your defence and counterclaim, save for that relating to the estoppel point. The court was of the opinion that the evidence in these proceedings, suggested that there may have been a payment agreement for £40.00 per month at the time the notice was issued. Consequently, the court found that MBNA were stopped from defaulting and terminating the agreement. I had the new agreement in writing .

 

We would like to point out the judge went through your defence in detail and went to lengths to explain that all the other points raised by you were dismissed. Some points raised were not ruled on.

 

The court points to the terms of the agreement and that a valid default notice was sent to you when the account was terminated. The court explains that by a letter dated the 25th January 2012 Idem capital Securities gave notice of the assignment of the account to you.

 

As to the Agreement itself, the court found that the evidence was very clear in support of the claimants claim namely that the agreement was fully compliant with the consumer credit Act and that the claimant is entitled to enforce the agreement. The judge concluded in his comments when handing down the judgement that the credit agreement remains in force.

The court has added that provided the claimant issues a default notice and it not remedied, terminates the agreement, it will then be in a position to obtain Judgement.

 

The Court has explained that as the account is considered to be alive account, the claimant may be y to apply interest and charges. Which would have applied since 2011. In the event the claimant wishes to issue fresh proceedings, it may well be that the claim could be significantly higher to take account of further interest and charges which may have accrued since 2011. The Court does not say the account is alive and I consider it to be dead.

 

The Judge informed you that whilst you may not have won (typo error Hmm?) this claim, due to the estoppels point, the agreement is enforceable and the sums are therefore due and owing. He never said, that he said “it may be that you could reissue a new default notice, he was not a CCA expert!..”

 

In the circumstances, we are instructed to invite your proposals for payment. We confirm that the of £5,000 remains due and owing. Therefore, we ask that you contact us as soon as possible and no later than 4.00pm 10 October 2014.

 

Our Client may well be willing to accept proposals for payment to be paid by monthly instalments but this is something we need to discuss further detail with you.

If we do not receive a response from you by 4.00pm 24 October 2014, we reserve our clients right

[AndyOrch]

Post moved to your own thread Jack...not sure why you posted on Shamrockers?

 

Andy

[jackreacher]

Post moved to your own thread Jack...not sure why you posted on Shamrockers?

 

Andy

 

Thanks Andy.. no idea either..pannicking. Any feed back on the above letter.

 

Apologies to shamrocker..

 

regards Jack

[jackreacher]

Didn’t case law clarify that a new DN could be issued? Phoenix v Kotecha? The reasoning given was that the account could not actually have been terminated as the DN was faulty – this is what scuppered the ‘rescission’ arguments.

 

However, in this case, I think the creation of a new agreement possibly voids the original.

 

In this case the Claimant has now stated the court found the Default notice to be good..???

 

not sure how any of this fits together now. My Own opinion is, As the New bilateral agreement was breached by MBNA first the whole thing is over and done with. Nothing I have seen or read can take it back to the originall CCa agreement. Not unless I agree to do so.

 

The claimant has been to court to ask for me to repay money. The claim was dismissed.