MBNA court Activ Kapital

[The Mould]

What were the Claimants’ costs for the 1st SJ hearing?

Kind regards

The Mould

[Ganymede]

Thankfully the letter from the court arrived this morning. Here is a copy:

 

[ATTACH=CONFIG]52359[/ATTACH]

 

Let me try to make a fist of this myself...then perhaps some of you can chip in.

 

The court orders that the claimant file the bundle within 28 days of 16/07/14. This bundle is to include documents relied upon by me, the defendant. Does this term 'documents' include, in my case, the authorities?

 

The Claimant's solicitor has stated a deadline of 5th August to have my list of documents? Is this a standard request and it the timeframe reasonable?

 

Their solicitor, in their email yesterday, stated that I could send the documents by email. Could I, therefore, just pdf the authorities and send them across?

 

Sorry for such basic questions, but that's the level I'm at right now.

 

Many thanks

 

Sham

 

As I said, you don't do your own bundle as the Claimant's solicitor does it.

 

Send a pdf of everything you want included in the bundle to the solicitors today.

 

You need to try and agree the contents of the bundle as well.

[shamrocker]

Hi TM - thanks so much for your continued support.

 

Their costs were £2.5k

 

With regards the list I should send to their sols, do I simply itemise the list and go on to state that I have only included the actual documents not already in their possession?

 

Presumably, I am only using their evidence and then using the authorities to support my defence against the evidence...right?

 

Thanks again,

 

Sham

[The Mould]

Yes and request that they send you the full list to be agreed between the parties before they compile the bundle for the SJ hearing.

It was important to see the order because at the hearing the judge said both parties to prepare a bundle so it is not necessarily always the case that the Claimants’ sols undertake such.

Kind regards

The Mould

[shamrocker]

Yes and request that they send you the full list to be agreed between the parties before they compile the bundle for the SJ hearing.

It was important to see the order because at the hearing the judge said both parties to prepare a bundle so it is not necessarily always the case that the Claimants’ sols undertake such.

Kind regards

The Mould

 

Thanks TM. I fully understand your reasoning.

 

I am pretty sure he stated '....where you will both' submit a bundle, but I may have got it wrong. But anyway.....

 

As suggested by you, I think I should be relying upon:

 

 

1. Claimants’ particulars of claim ( always state the date of each document in your list) ....OK

2. Your Defence ....OK

3. Claimants’ reply to your Defence (if any) ....I'm not aware if any reply

4. Claimants’ application notice for SJ ....OK

5. Claimants’ 1st WS in support of SJ ....OK

6. Your 1st WS in opposition of SJ ....OK

7. Claimants’ 2nd WS evidence in reply ...OK

8. Both of the credit agreements ...OK

9. Copy of the default notice ...OK

10. Copy of inter-party correspondence that is not marked “without prejudice” - There hasn't been any

 

Authorities -

CCA 1974 s61,

CCA 1974 c127,

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983,

Dimond v Lovell,

Three Rivers District Council, ED&F Man Liquid Products,

Wilson v First County Trust,

 

Can you suggest any others that I should add?

 

The luxury with being able to email them is that I don't need to meed the postal deadline, so I have a few extra hours.

 

Thanks as always,

 

Sham

[Ganymede]

Thanks TM. I fully understand your reasoning.

 

I am pretty sure he stated '....where you will both' submit a bundle, but I may have got it wrong. But anyway.....

 

As suggested by you, I think I should be relying upon:

 

 

1. Claimants’ particulars of claim ( always state the date of each document in your list) ....OK

2. Your Defence ....OK

3. Claimants’ reply to your Defence (if any) ....I'm not aware if any reply

4. Claimants’ application notice for SJ ....OK

5. Claimants’ 1st WS in support of SJ ....OK

6. Your 1st WS in opposition of SJ ....OK

7. Claimants’ 2nd WS evidence in reply ...OK

8. Both of the credit agreements ...OK

9. Copy of the default notice ...OK

10. Copy of inter-party correspondence that is not marked “without prejudice” - There hasn't been any

 

Authorities -

CCA 1974 s61,

CCA 1974 c127,

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983,

Dimond v Lovell,

Three Rivers District Council, ED&F Man Liquid Products,

Wilson v First County Trust,

 

Can you suggest any others that I should add?

 

The luxury with being able to email them is that I don't need to meed the postal deadline, so I have a few extra hours.

 

Thanks as always,

 

Sham

What was in their original bundle at the first SJ hearing?

 

Just e-mail your own documents and authorities that weren't included and ask the solicitors to add them.

 

The solicitor should then e-mail you the trial bundle index with a list of everything that will be included in the trial bundle for your agreement.

[The Mould]

Their SJ application was supported by the 2 agreements which the Claimant claims are one and the same. The agreement is improperly executed and subject to the 1974 Act before it was amended.

 

 

Kind regards

 

 

The Mould

[The Mould]

Yes to the above Sham except that the CCA 1974 sections come under the heading "legislation".

 

 

Kind regards

 

 

The Mould

[shamrocker]

What was in their original bundle at the first SJ hearing?

 

Just e-mail your own documents and authorities that weren't included and ask the solicitors to add them.

 

The solicitor should then e-mail you the trial bundle index with a list of everything that will be included in the trial bundle for your agreement.

 

Hi Ganymede

 

I think TM may have answered your question above - but I didn't receive anything from them except the agreement, credit card statements, DN, NOA, debt chasing letters. This was in addition to their WS and attached as exhibits.

 

My approach is to prove that the agreement upon which they rely is in irredeemable breach of the CCA 9174, which will call upon their evidence in order to establish the nature of that actual agreement they are trying to enforce, followed by then referring to the statutory requirements and authorities that back up my stance.

 

Thanks for your input, I really appreciate it!

 

Sham

[shamrocker]

Yes to the above Sham except that the CCA 1974 sections come under the heading "legislation".

 

 

Kind regards

 

 

The Mould

 

Thanks TM. I think that's me ready to go now.

 

Sham

[Ganymede]

I think TM may have answered your question above - but I didn't receive anything from them except the agreement, credit card statements, DN, NOA, debt chasing letters.

 

I wasn't asking what your legal arguments were going to be, sorry if I wasn't clear. I was referrign to the actual bundle.

 

I was asking what specific documents they had included in their origianl trial bundle. You won't need to send them their Claim Form or your Defence etc as i imagine that these were included last time? Just your own documents and authorities/case law etc that you want to be added in.

[The Mould]

OK Houston, time for lift off.

 

 

Enjoy your summer break and catch up on your return.

 

 

Kind regards

 

 

The Mould

[shamrocker]

I wasn't asking what your legal arguments were going to be, sorry if I wasn't clear. I was referrign to the actual bundle.

 

I was asking what specific documents they had included in their origianl trial bundle. You won't need to send them their Claim Form or your Defence etc as i imagine that these were included last time? Just your own documents and authorities/case law etc that you want to be added in.

 

Thanks Ganymede

 

Yes, I was simply going to make the list as above, but only send actual copies of the authorities and legislation. I won't send anything they already have possession of.

[shamrocker]

OK Houston, time for lift off.

 

 

Enjoy your summer break and catch up on your return.

 

 

Kind regards

 

 

The Mould

 

Thanks TM! I will try to have a nice time with the family.

 

There's only one further instruction from the court which is on the original court order that I received prior to the SJ application. It states 'each party must serve a pre-trial checklist by 8th August'. Need I worry about this right now?

 

Sham

[The Mould]

Well, as you are returning on the 5 August you will have 3 days to complete the pre-trial checklist, so perhaps fill it out then, make a note of that time limit set by the Court on this element so as to ensure your compliance on the same.

You have a large number of ‘guests’ viewing today.

Kind regards

The Mould

[shamrocker]

Well, as you are returning on the 5 August you will have 3 days to complete the pre-trial checklist, so perhaps fill it out then, make a note of that time limit set by the Court on this element so as to ensure your compliance on the same.

You have a large number of ‘guests’ viewing today.

Kind regards

The Mould

 

Lol...yes, I did notice that. I wonder if their IP addresses lead us to Kent.

 

Ok, I'll rest easy on the checklist until I return.

 

Thank you again....many times over!

 

Sham

[shamrocker]

Well, as you are returning on the 5 August you will have 3 days to complete the pre-trial checklist, so perhaps fill it out then, make a note of that time limit set by the Court on this element so as to ensure your compliance on the same.

You have a large number of ‘guests’ viewing today.

Kind regards

The Mould

 

The Mould

 

Just throwing this out there, as I'm going to have a quick look through old documentation this evening before sending my documents over to their sols..

 

You may remember me mentioning a few pages back that the repayments on this credit card account were increased out of the blue. I seem to remember receiving a letter from Virgin stating that the minimum repayment now had to be x.x%, thus I just assumed I had to abide by their rules and just carried on paying the new amount until I could no longer afford it.

 

If I can find something related to this that could be contradictory to the agreement relied upon, e.g. minimum repayment, would it be worth including at this stage in your view?

 

Many thanks,

 

Sham

[shamrocker]

Re. above - I just found some old statements which outline certain promotions available on the account. I do recall taking advantage of them back then, but the end of promotion date falls about a year short of when the repayments were increased by £130+ per month.

 

On one particular statement, I'm paying just £27p/m on a £8k balance. In the end I was paying around £330p/m on a £13.5k balance.

 

I can't find the letter that I recall informing me of the change to the minimum percentage balance repayments - I did shred quite a few documents. However, the reconstituted agreement they are now relying upon states a minimum repayment of 2.25% of the statement balance by the date shown on the statement. Could I highlight the fact that the payments being made were nowhere near this 2.25% until the point where they increased the payments - therefore, the original agreement could not possibly have contained this specific term?

 

Or do I just stick to the points we've already discussed?

 

Sham

[The Mould]

Re. above - I just found some old statements which outline certain promotions available on the account. I do recall taking advantage of them back then, but the end of promotion date falls about a year short of when the repayments were increased by £130+ per month.

 

On one particular statement, I'm paying just £27p/m on a £8k balance. In the end I was paying around £330p/m on a £13.5k balance.

 

I can't find the letter that I recall informing me of the change to the minimum percentage balance repayments - I did shred quite a few documents. However, the reconstituted agreement they are now relying upon states a minimum repayment of 2.25% of the statement balance by the date shown on the statement. Could I highlight the fact that the payments being made were nowhere near this 2.25% until the point where they increased the payments - therefore, the original agreement could not possibly have contained this specific term?

 

Or do I just stick to the points we've already discussed?

 

Sham

Yes, it is certainly important to raise argument on all discrepancies of the agreement.

Kind regards

The Mould

[shamrocker]

Yes, it is certainly important to raise argument on all discrepancies of the agreement.

Kind regards

The Mould

 

Would a screenshot of my credit history via Noddle for this account satisfy this point, do you think? It clearly shows activity over a number of years, including payments and corresponding balances. It would be difficult to get hold of the actual statements at this point, although I do have one from 2009 here and they have supplied a number of 2011/12 statements.

[The Mould]

Would a screenshot of my credit history via Noddle for this account satisfy this point, do you think? It clearly shows activity over a number of years, including payments and corresponding balances. It would be difficult to get hold of the actual statements at this point, although I do have one from 2009 here and they have supplied a number of 2011/12 statements.

 

 

 

Sham, don’t raise any issues as regards the activity on the account under the agreement because you will be setting yourself up for the Claimants’ counsel and the judge to latch on to this and detract from the fact that the agreement is improperly executed. Don’t go there.

Kind regards

The Mould

[shamrocker]

Ok...I'll just leave it out and stick to focusing on the actual agreement as a document in itself. I agree, best to keep the spotlight on the agreement.

 

I'll get these sent across to them this evening.

 

Many thanks

 

Sham

[fredsed]

Good luck Sham, I hope you have a lovely stress free break! You deserve one. Hope the weather holds for you

[shamrocker]

Hi everyone... first time back on here since having a family break. Just a little update to say that I've received the file bundle. They've included the cases of McGuffick v RBS; Carey v HSBC; Rankine v American Express; and Rankine v MBNA within the bundle. I did receive a proposed index from them after I sent across my documents and didn't see any issue with these cases being included by them, so I just let them carry on.

 

I've read bits, but not all, of these cases previously and can't see how any of them offer any viable support to the claimant's position. I'm sure they'll try to angle them in such a way as to convince the judge and defeat my defence, but I'll try to be ready for this.

 

I haven't got time at the moment to get my head back into this properly, but thought I'd pop on here with an update in the meantime in case anyone has anything to add. I'll ease myself back into it over the coming week. It appears that the hearing is all set for beginning of September.

 

Cheers,

 

Sham

[jackreacher]

hi Shamrock, its &.30 amd I am very hung over from my celebratory MBNA win drinking session last night.

 

I have looked at your thread and the experts (which I am not are all over it), you could not be in better hands.

 

I have only read to page 9 (blurry eye syndrome..lol). So below may already have been pointed oot

 

DEFAULT NOTICE!! your picture showed a lovely red threaded Bundle of the Default Notice 'As sent'. There is no copy of the OFT Sheet that MUST be included. It is as much a part of the DN as the 14 days or the arrears. look at s88(4)(A). it is a killer point in Harrison V link and Santander V Mayhew.

 

Off to bed now.. I promise to look through it all gain over the weekend.

 

88 Contents and effect of default notice.

 

(1)The default notice must be in the prescribed form and specify—

(a)the nature of the alleged breach;

(b)if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

©if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

(2)A date specified under subsection (1) must not be less than [F214] days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those [F214] days have elapsed.

(3)The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the [F214] days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4)The default notice must contain information in the prescribed terms about the consequences of failure to comply with it [F3and any other prescribed matters relating to the agreement].

 

[F4(4A)The default notice must also include a copy of the current default information sheet under section 86A.]

 

(5)A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

Note MUST in 884A, check clause 1 & 8 refer to the applicable clauses in your agreement.

 

regards Jack