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

[jackreacher]

Could all you wise and wonderful Caggers link onto my Lloyds case as I am in court on the 16th with this one and it is really confusing/annoying me.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?414663

 

Regards Jack

[jackreacher]

The judge has taken two months to consider the legal arguments on this one.

The Judgement day is the 22nd August. He is allowing 2 hours for judgement. Does anyone know what I should take ie, if there will be more legal discussions or just the ruling?

 

I am thinking it will be the ruling but two hours seems a lot... So maybe treat it as another trial?

[BRIGADIER2JCS]

The judge has taken two months to consider the legal arguments on this one.

The Judgement day is the 22nd August. He is allowing 2 hours for judgement. Does anyone know what I should take ie, if there will be more legal discussions or just the ruling?

 

I am thinking it will be the ruling but two hours seems a lot... So maybe treat it as another trial?

Sounds like a " narrative " judgement is coming, just be prepared with all documents that may be mentioned in the judgement.

[shamrocker]

Sounds like a " narrative " judgement is coming, just be prepared with all documents that may be mentioned in the judgement.

 

What is a narrative judgement?

[BRIGADIER2JCS]

What is a narrative judgement?

The Judge will start at the begging of the case, referring to submissions/statements /evidence etc. put before the court how he views it, the relevance of it and what Law applies or does not apply each part of the case is reviewed in this way to

make it clear how his judgement has been reached.

2 hours is quite short given that he has been considering the case for 2 moths.

[shamrocker]

The Judge will start at the begging of the case, referring to submissions/statements /evidence etc. put before the court how he views it, the relevance of it and what Law applies or does not apply each part of the case is reviewed in this way to

make it clear how his judgement has been reached.

2 hours is quite short given that he has been considering the case for 2 moths.

 

Ah, ok. That sounds fair. Hopefully it's for the benefit of the claimant, in giving them the proper reasoning behind rejecting their claim.

[BRIGADIER2JCS]

Ah, ok. That sounds fair. Hopefully it's for the benefit of the claimant, in giving them the proper reasoning behind rejecting their claim.

The judge will explain his reasoning on each pertinent point so listen carefully make notes of anything you are unsure of.

[jackreacher]

Thanks Brigadier, I will treat it as a trial and take everything again. Better start refreshing my mind.

 

The trial took 7 hours and remember it is only the small claims court. The judge wants to find in the claimants favour , basically said as much. Just taking his time to work out how to do it.

 

They actually pleaded in the court room they did not need to supply a s62 or s63. They confirmed they had a reconstituted Application form I provided Case evidence from Carey to say it was not enough as I had from the beginning contested there were any prescribed terms. They also pleaded they did not have to supply s88 (4) (A) the oft notice as the agreement was from 1998. I showed the judge this was from when the default notice was sent.. still the judge would not rule!

They fell down on loads more points.. including estoppel. Non compliance s78. We will see.

[jackreacher]

just a quicky.. (there may be more coming)

 

The judge took notice of my defence that the 'Notice of assignment' from both mbna and Idem had not been signed. Just wondering how important this was?

 

funnily it came directly after the barrister had made a big point of how the DN WAS signed. I just piped up both NOA were not signed and you have just told the court how important it was that documents must be signed ..lol

[BRIGADIER2JCS]

just a quicky.. (there may be more coming)

 

The judge took notice of my defence that the 'Notice of assignment' from both mbna and Idem had not been signed. Just wondering how important this was?

 

funnily it came directly after the barrister had made a big point of how the DN WAS signed. I just piped up both NOA were not signed and you have just told the court how important it was that documents must be signed ..lol

 

 

Promising Jack!

[jackreacher]

Industry [2003] UKHL 40 where Lord Nicholls of Birkenhead said:- para29

 

“The court's powers under section 127(1) are subject to significant qualification in two types of cases… The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.”

“These restrictions on enforcement of a regulated agreement cannot be side-stepped”

 

Can anyone tell me what the "one exception" is?

 

Also if a senior judge gives an order can a lower judge ignore it?

 

in court tomorrow and just checking.

[shamrocker]

I can't answer your question, but wishing you best of luck for the hearing.

[jackreacher]

I can't answer your question, but wishing you best of luck for the hearing.

 

cheers Shamrocker, report back later. Put it this way If I don't get a result Appeal is commng.

[DonkeyB]

Stick to the facts JR – you NEVER signed the agreement, and it has clearly been altered AFTER you signed it (you didn’t anyway) which is an act that renders any such agreement void.

[jackreacher]

WON CASE DISMISSED :whoo: A BIG THANKS TO ALL THE CAG HELP:whoo:

 

I won on Estoppel. I had proof of a bilateral agreement, I paid in line with that agreement, MBNA unlawfully defaulted &Terminated without me having missed a payment.

 

Importantly he said "the Claimant Idem DCA could issue a new Default notice and add more money and interest" .... The claimant has said they will do that. Is there anything I can do to stop that happenning.. accept the termination etc, I know there are differing views on this subject.

 

He did not find in favour of me on any CCA point, I believe this was because he knew very little about it but knew an awful lot about estoppel and my Estoppel rgument was strong. I believe he made his mind up about the Estoppel in the final hearing but still took two months to deliver his judgement.

 

This will make you laugh/or cry... The claimant pleaded the OFT (884A) notice did not have to be included under statute law. I pleaded it was not included and the statute law said it had to be....so an easy legal factual matter. The Judge found I was legally correct but still found it was included and sent...

 

I say it wasn't included the claimant says it was not included.. The Judge says " it was included"...lol ??

 

 

Thanks Again for you support XX

Jack

[DonkeyB]

Never in doubt (phew...).

 

This needs an estoppel expert. I thought that the new bilateral agreement would supersede the original. I’m not sure they can go back... I have a gut feel the judge is mistaken. Wouldn’t be his first mistake, IMHO, as you have shown.

 

Well done.

[shamrocker]

Well done for today jackreacher. I bet it was a satisfying result, albeit you still have concerns about them coming back at you.

 

I've got a hearing involving an ex-MBNA (issued 2005) credit card in just over a week. It's in Fast Track and my defence centres on CCA breaches...they've produced an illegible signed version plus a reconsitituted version, which in itself isn't compliant. Were there any lessons you learned within your CCA arguments? Was it solely on the DN you argued? The judge warned me that it wasn't looking good for me at an attempted SJ hearing a while back, but I've kept going on the basis that I feel my defence is sound in law.

 

Again, well done!

[jackreacher]

I managed to prove by my logs the illegible agreement was reconstituted = A. why was it illegible when it is recently reconstituted. Importantly the FRC did not read/cross refer accurately. , 8.4, 8.11 and 9.4 were mentioned but not contained in either document.

 

The terms and conditions did not contain any prescribed terms which they have to do if it is a s63 executed agreement.

 

No cancellation notices on any terms and conditions.

 

S78 failed for the above reasons and I used the original document had to be included.

 

In a fast track these points would have won the day, the judge used some common sense and did me a favour by using the estoppel for dismissal. If he had cocked up on his CCA ruling which was not his strong point the claimant would have good grounds for appeal.

 

 

Let me know what your CCA points are and if I have any info I will pas it to you and you can glean what you want from it. PM me or I can jump on your thread.

 

I must be doing something right as that is LlOyds and MBNA gone.

 

regards Jack

[jackreacher]

Never in doubt (phew...).

 

This needs an estoppel expert. I thought that the new bilateral agreement would supersede the original. I’m not sure they can go back... I have a gut feel the judge is mistaken. Wouldn’t be his first mistake, IMHO, as you have shown.

 

Well done.

 

Thanks DB. That is LlOyds and MBNA gone in the last two months.... a always your input has been invaluable.

 

Another Classic from yesterday. Me, "the claimants s62 contains no prescribed terms and no cancellation notice it therefore fails under s62, and s64".... the Claimant, "so what if the s62 is not set out as prescribed by the statute, he has had the money and no prejudice has occured"

 

The judge ruled the s62 complies..lol (IMHO, for the reasons already given ) so I am not bothered, still a Classic.

 

I suppose the lesson is, not all judges are happy dealing with the CCA. Estoppel is still good. if they have defaulted and terminated while in an agreement plan.. use it to your Advantage. It may win the day!

 

hopefully someone will come my way about my default problem

[shamrocker]

Thanks Jack. I'm busy this weekend but will be getting my head back into things on Monday/Tuesday, so will be in touch then. I have my arguments and counter-arguments pretty much planned out based on what I know and have read up on, but I feel that I could really do with bringing a bit more on board should it be needed. The opposition have used a poor attempt at an agreement as the basis of their claim, but I can't help feeling that I'll be up against an unsympathetic judge on the day...like I was at the SJ hearing.

[citizenB]

I don't think they can simply issue another default notice !

[jackreacher]

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

[BRIGADIER2JCS]

I don't think they can simply issue another default notice !

The judge can allow a new compliant DN to be issued especially in situations like this, happens

quite often.

[jackreacher]

The judge can allow a new compliant DN to be issued especially in situations like this, happens

quite often.

 

If the claimant started new proceedings, would I still be allowed to argue all the CCA issues or just the DN?

 

I am thinking the whole thing starts again??

[BRIGADIER2JCS]

If the claimant started new proceedings, would I still be allowed to argue all the CCA issues or just the DN?

 

I am thinking the whole thing starts again??

 

 

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.