Arrow/Restons - Claimform old MBNA 'debt'

[gjindancer]

After a default I was paying £50 (what I could afford) to AG for several years

- last year, out of the blue

- the payment was stopped and I started getting nuisance calls from a number of DCA's,

and then eventually a letter from Wescot, then a letter from Restons demanding the sum in full.

 

I did the whole CCA request and I just got rude letters from Restons back saying it was all non-legal rubbish they didn't have to reply to.

 

Finally I got a N244 court order back in march

- I submitted my defence (no cca supplied) and the case was stayed.

 

 

I heard nothing for months until finally, out of the blue in September,

Restons were applying for a Lift of Stay,

Summary Judgement and to strike out my defence.

 

Their legal fees were itemised on the N244 and came to £516 - annoying and I'd prefer not to pay for their trouble making - but not OTT either

 

I responded requesting the CCA again and later in the month they finally provided a photocopy of the CCA.

 

My problem all the while was ensuring I was paying the debt back to the correct DCA as I had requests for the money from multiple DCA's

 

With this in mind I wrote requesting to come to an out of court agreement and pay a monthly sum of £50 - which they seem to have agreed to on a Tomlin Order.

 

However their fees now come to £1500 and of course are added to the original debt.

 

This includes a court appearance fee of £450 - which is rich considering we would not be going to court if the agreement is signed.

 

Although with a few days to go it seems easier to roll over and pay the fees - I feel uneasy about doing so.

 

From what I can see a tomlin order is just an agreement staying the court case

- which means they would be at a liberty to start court proceedings

and ad an extra grand or so into the mix on a yearly basis.

 

I'm considering getting legal advice but I'd appreciate any help from the community.

 

- Can extra fees be added after the fees stated on a N244?

- if I go to court now I don't feel I have much to lose as it looks like I'm paying for their appearance in any case.

 

Thanks

 

Dan

[jackreacher]

Did you have a written agreement allowing you to pay the £50 a month lower repayment fee? Post up the CCa agreement, terms and conditions, Defaut notice. Lets have a look at what they have.

 

Who was it with originally and what is written in their particulars of claim..

 

If you do the above you will get more help.

 

Regards Jack

[gjindancer]

Hi,

 

The original debt was with MBNA, I don't think it's worth posting the CCA agreement - it's a photocopy but I don't think it is reconstituted and I'm not really trying to dispute the debt.

 

My issue is with the sudden break in accepting my monthly payments, the very confusing number of DCA's after the money that followed and finally Restons demanding full payment and refusing to send the CCA until the final hour.

 

I think the court costs in this are unreasonable as this could have been resolved amicably - especially when they are now apparently accepting the £50 per month - with an extra £1500 added on of course.

 

I do intend to make a claim regarding any charges / PPI on the debt to claw back costs - but I assume this action would be a separate battle?

[havinastella]

In your first post you say ' I got an N244' Do you mean a N1 court claim???

 

When was the account opened? If it was before April 2007 they would need the 'ORIGINAL' CCA and not a photocopy.

 

How much are they claiming from you? If this was small claim, legal costs cannot be claimed so you are being completely mugged off.

 

I think we need the full story including all the facts before we can advise, although if you are in Court in two days, there may be little we can do for you.

[jackreacher]

Agree with havinawifebeater:-) As much info as poss.

 

My issue is with the sudden break in accepting my monthly payments, the very confusing number of DCAicon's after the money that followed and finally Restons demanding full payment and refusing to send the CCA until the final hour.

 

I ahve just won a case against MBNA with the same issue... I had proof that MBNA had agreed a lower repayment plan and they breached it first in a similar way as yours. The court found in my favour and dismissed their claim. What they have done is against Bcobs/Cobs and this overrules any CCA agreement. They promised not to take you to court as long as you paid in line with the NEW agreement.

 

this is an easy argument as all judges understand Estoppels. (promises) In the new bilateral agreement estoppels were made and they breached those estoppels. You have proof you paid the lower amount for several years keeping to your side of the agreement, they then stopped it for no reason..(have you proof they stopped the new agreement plan? if so take it to court

 

.. I also have good knowledge of MBNA Agreements. You may as well post it up and if the agreement is rubbish we will tell you why. You don't have to contest the debt, just that is was done /issued unlawfully and therefore it can not be enforced. Have you done a further defence or a witness statement yet?

 

just trying to help.

[gjindancer]

Not a small claim I think as the debt remaining was £6020.

 

I'm going to do my witness statement very soon

 

The CCA was from 2002 I've attached it with T&C's

[jackreacher]

it should be in the small claims as it is under £10,000

 

The signed piece of paper is not a proper agreement it does not contain interest rates the other 3 bits of paper purporting to be the accompanying T&C's are to small to read which is weird as the signature page comes up large. .

 

Does clause 11 contain the data act as stated in the signed page.

[gjindancer]

[ATTACH=CONFIG]54044[/ATTACH][ATTACH=CONFIG]54045[/ATTACH][ATTACH=CONFIG]54046[/ATTACH]

 

Hopefully These are bigger

[jackreacher]

ok! so in clause 14 it refers to clause 1.2..where is that?

[gjindancer]

Two pages to come..

[jackreacher]

Two pages to come..

 

shows I am looking..lol

[gjindancer]

[ATTACH=CONFIG]54047[/ATTACH][ATTACH=CONFIG]54048[/ATTACH]

 

Here are the first two - I'm off to bed soon as I'll be up with the bairn at 5am but I'll be back early tomorrow - I appreciate your replies.

 

Dan

[jackreacher]

happy to help Dan, more experienced caggers will be along now you have provided info.

 

I would fight this one, but the choice is yours.

 

 

 

Ok so the t&C's are not part of the original agreement. Clause 14 refers to making alterations under clause 1.2 ......1.2 is nothing to do with making alterations. They have failed to supply you with the required documents under s78(1) the debt is unenforceable as things stand.

 

As there is a major discrepancy they will have to provide the real agreement in court if you push for it,,, I bet they wont have it!

 

You need to google Carey V hsbc and look at the last page for what they are required to provide. They fail on a lot of points.

 

So you now have the estoppel breach and a failed s78. I bet the default notice is bad as well..have you got a copy?

[gjindancer]

Some carey vs hsbc seems to be pro creditor? Looking at the search results im not sure what should be in my favour apart from the terms and conditions inconsistency.

[dx100uk]

it would be better to put all the pix into a word doc

then PDF that please

 

 

dx

[dx100uk]

can you fill this out please too

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**(1-Viewing)-nbsp

[AndyOrch]

Hi gjindancer

 

Reading between the lines you have not accepted the Tomlin Order yet?

 

You are in court next for their application to lift the stay and request SJ?

 

Andy

[gjindancer]

Ive not accepted the tomlin yet. if I dont ill be in court on the 5th. Have to go to bed now but will be back tomorrow

[AndyOrch]

Then accept it and pay the debt monthly avoid the CCJ and avoid their application costs......unless you think you can succeed at trail.

 

Andy

[jackreacher]

What they have provided you with is not the whole of your your real agreement though is it? This is just a balance transfer request. I can't see how they can enforce with just a balance transfer request.

 

You have to fill in your address, income earnings etc to complete an Application form / Agreement.. Nothing on the front before the signature specifically referring to anything on the rear so no prescribed terms, seems lacking in everyway. Again Carey paragraphs 7 -23 (I think) will give you a good idea of what it should contain and in what order. Carey also explains there must be a specific reference to something on the rear or attached.

 

As Andy has said, I think you have to decide which way you are going to go. He can also answer your costs questions.

[jackreacher]

Some carey vs hsbc seems to be pro creditor? Looking at the search results im not sure what should be in my favour apart from the terms and conditions inconsistency.

 

 

What they have provided you with is not the whole of your your real agreement though is it? This is just a balance transfer request. I can't see how they can enforce with just a balance transfer request.

 

You have to fill in your address, income earnings etc to complete an Application form / Agreement.. Nothing on the front before the signature specifically referring to anything on the rear so no prescribed terms, seems lacking in everyway. Again Carey paragraphs 7 -23 (I think) will give you a good idea of what it should contain and in what order. Carey also explains there must be a specific reference to something on the rear or attached.

 

When you make a positive assertion, ie , "I did sign the agreement but it did not come with terms and conditions or complied with the CCA" ..Carey says the creditor will have to provide the document, front and back as a copy or reconstituted will not be good enough for the "proof purpose".

 

here is a link for the FCA (to which MBNA are signed up to) it will show you how the CCAs78 fails and they can not enforce as things stand.

 

http://fshandbook.info/FS/html/FCA/CONC/13/1

 

As Andy has said, I think you have to decide which way you are going to go. He can also answer your costs questions.

[gjindancer]

I've looked at clause 14 and it refers to 1.8 - which talks of alterations in interest.

 

Unfortunately the quality of their photocopying / my scans is probably at issue here.

 

Looking through the Carey Agreement - the interest rates appear to have been on the back or another section of the form. I can't find any specific requirement the CCA fails under.

 

I do however think the years of payments I made, combined with the fact they suddenly stopped this is the strongest issue I have and I'd hope that I could at least drop the costs if I cant get the debt written off.

 

dx100uk - did you mean you want me to upload all the images as 1 word document?

 

dx100uk - I'll try and go through what I can but at this late stage I don't have a lot of time - I am however having a quick chat with a local solicitor.

 

Thanks

 

Dan

[jackreacher]

I've looked at clause 14 and it refers to 1.8 - which talks of alterations in interest.

 

Unfortunately the quality of their photocopying / my scans is probably at issue here.

 

Looking through the Carey Agreement - the interest rates appear to have been on the back or another section of the form. I can't find any specific requirement the CCA fails under.

(6) If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also either:

(a) a copy of the latest variation given in accordance with section 82(1) of the CCA relating to each discrete term of the agreement which has been varied; or,

(b) a clear statement of the terms of the agreement as varied.

 

The statement of account

 

CONC 13.1.5

01/04/2014

FCA

If the firm possesses insufficient information to enable it to ascertain the amount and date of any sum which is to become payable, it is sufficient to indicate the basis on which they would fall to be ascertained.

Failure to comply

 

CONC 13.1.6

01/04/2014

FCA

(1) Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.

 

It really does fail badly under the CCa s78 request. (read my FCA link about 5 mins of reading combined with summary in Carey)

 

1.8? reads 1.2 to my old eyes...lol. If it is illegible the cca covers that, it is a simple argument and the judges call.

 

 

 

Regarding the agreement ...In my opinion this is a balance transfer request it can not be your Application / agreement as it contains no personnel details. Others may disagree. Look at it from the judges point of view it reads and looks like a as a balance transfer request.

 

They may claim interest rates were on the back..however they come after the signature and there is nothing before the signature referring to anything on the rear or attached. It is pure common sense & normal under contract law for the signature to be at the end of an agreement. Anything after the sig would have to be referred to beforehand. Imagine the socpe for fraud if it was not this way? Certainly helped win the day for me against lloyds.

 

 

 

The estoppel argument is easily understood by your solicitor. Subsequent to the original unilateral agreement you made a new Bi lateral agreement. This is' that you paid a lower amount as long as you paid this amount "You were told " no further action would occur no passing to a DCA, default or termination of your account. You kept to your side of the Agreement . They breached the basic contract law and banking code of conduct , ie they misled you and by breaching first they gave up their right to enforce your debt.

 

The fact you breached later does not matter One breach does not cancel out another.

[gjindancer]

Well I'm off to court tomorrow so wish me luck

 

I spoke briefly to a Solicitor and as the Tomlin was so late, Ive been told it's certainly worth facing a Judge to see if I can get the fees knocked off rather than roll over and pay Restons what they want.

 

Its a small claim under 10k so no legal fees should be charged

 

Restons have been unreasonable in complying to my requests and are partly responsible for causing the break in my payments and causing their own court costs

 

Arrow global have breached my payment agreements and are jointly responsible with Restons.

 

The solicitor believes I've a good chance if I catch a Judge in a good mood.

 

I'm not going to challenge the enforceability of the CCA, but I will mention about the COBS breach.

 

Thanks everyone for your help and I'll let you know the outcome asap.

 

Dan

[jackreacher]

Good luck tomorrow.. If they are going for summary judgement you may have to offer a defence so definitely say they breached the new bilateral agreement first.

 

Honestly I beat MBNA with this defence not 2 months ago! Check the last 4 pages of that case for pointers.

 

You are right to not challenge the CCa as it was to late to bring you up to speed.

 

 

Regards Jack