MBNA court Activ Kapital

[shamrocker]

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.

 

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

 

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

 

regards Jack

 

Hi Jack,

 

Thanks for the above. I've just posted on your own thread a few minutes ago.

 

Just so you are clear, the DN they've given me includes TWO pages. Both are MBNA headed. There isn't one from the OFT. Can you send me a link to what this document would typically look like?

 

With regards Clauses 1 & 8, referred to in the DN, there isn't a clause 8 on the 'agreement' they are relying on. In fact, I'm relying solely on the 'reconstituted' agreement for any cross-referencing as the copy of the original is pretty much illegible.

 

I have also picked out a number of minor inconsistencies with both versions of the agreement that would render their claim that the reconstituted version is an 'identical copy' as inaccurate. This is just based on design and layout of the two documents.

 

I also note that you mentioned my 'application form' in the post you made within your own thread. Does 'application form' have any significance with regards someone claiming it's an agreement?

 

Thanks a million!

[jackreacher]

Your Agreement looks like it is just a reconstruction of what was on the back 'Financial &Related Conditions'. Have they supplied what was on the rear. I have a booklet from that era I will dig it out and compare.

 

Have you got a SAR reply? if so go to the main information log. Read carefully the end pages it may well "say recon' agreement/document supplied" or something similar. If you can find this info it will help you tremendously. The Comms logs can really assist your case in all sorts of ways.

 

I wondered why your Application/ agreement looked like this. No real Big heading saying MBNA Europe, Agreement.

No address of the creditor,

 

It does not matter for s78 purposes they reconstitute from anything anywhere as long as it has all the specific information.

 

Is there anywhere it cross refers to a clause number that does not exist. ie please see 1.4 and 1.4 does not exist!! A material difference rather than form.

[shamrocker]

Your Agreement looks like it is just a reconstruction of what was on the back 'Financial &Related Conditions'. Have they supplied what was on the rear. I have a booklet from that era I will dig it out and compare.

 

Have you got a SAR reply? if so go to the main information log. Read carefully the end pages it may well "say recon' agreement/document supplied" or something similar. If you can find this info it will help you tremendously. The Comms logs can really assist your case in all sorts of ways.

 

Have you any T&C's that match the Agreement?

 

Hi Jack

 

Thanks for the prompt response.

 

I never did a SAR on them - just a CCA request when they issued the claim. They didn't provide the agreement until disclosure - this being a single page illegible document with my signature and address on. Accompanying it was another page that simply said - Credit limit: £4,000, plus it had two barcodes. It did not bear any connection to the 'agreement'. Then in their WS that was submitted as part of the SJ application, they introduced a more legible document which they stated was a 'reconstituted' agreement and was for the purposes of assisting the court.

 

That's all they've put forward. There aren't any T&Cs whatsoever.

 

The DJ at the SJ hearing didn't fill me with confidence. He pulled himself off the case because he said he'd formed a view that was prejudice to me, but he warned me to reconsider my position. Totally not what I wanted to hear, but the claimant was keen note this statement by the DJ.

[jackreacher]

Ok! weird! Have you done a full ws or defence statement yet?

[shamrocker]

Ok! weird! Have you done a full ws or defence statement yet?

 

I submitted a WS in objection to the SJ application. The deadlines for the SJ submission sort of fell on top of the deadline for the actual trial WS, so it tied me in knots a bit but I did also submit the second WS for the trial, in accordance with the orders from the court. I've really only focused on the fact that the agreement does not meet with the provisions of the CCA...etc, etc.

 

What are your thoughts?

[jackreacher]

http://www.fca.org.uk/your-fca/documents/information-sheets/information-sheet-default for 884A.

 

where is your second ws?

[shamrocker]

Can I PM it to you?

[jackreacher]

sent you a pm.

[shamrocker]

Just PM'd you Jack.

[jackreacher]

read Carey have a look at paras 113 and 234 for case law on what should be provided. 113 applies to a reconstituted document. Read carefully and compare to what you have received.

 

I have read carey about 30 times and am still finding things. the problem for us non legally trained minds is we do not read things in the same way as the legal gents on here. it takes us a longer time to crack the nut.

[shamrocker]

Thanks Jack. Yes, I have found Carey to be useful for certain angles....moreso to satisfy myself that it didn't support the claimant with regards reconstituted agreement. Lo and behold, they've included it in their trial bundle.

 

I must admit that I haven't read the whole Carey case yet, but will attempt to read it a few times this week. I agree, getting your head around this legal stuff takes some perseverance....enlightening all the same.

 

I'll keep you posted.

 

Sham

[shamrocker]

Hey JR...

 

I tried to PM you but it's not allow me due to your inbox already using too much space. It's just to say I've emailed you.

 

Cheers!

 

Sham

[shamrocker]

A question for you guys...

 

I just realised that the original 'Notice of Allocation to Fast Track' has a line at the bottom - "Each party must file a completed pre-trial checklist no later than 8 August 2014". With everything going on around this SJ hearing (stroke mini-trial) and being away for a couple of weeks I failed to take notice of this earlier. Obviously, I have not done anything about it.

 

This is with regards to the main trial which is set for end of September, but I have the SJ hearing next week for which I have complied with all instructions.

 

What's the situation with my failure to address the above pre-trial checklist order?

 

Cheers,

 

Sham

[jackreacher]

shamrocker ... the judge may ask you to put your argument as a series of questions.. I expect you know that but thought it may be useful to others reading this thread. Use the English you are comfortable with, no posh legal accents. No malice and speak clearly.

 

 

 

Again keep it really basic. I like to ask them if they understand; for example s78 of the CCa and case law surrounding it.. (particularly if they have brought Carey in as case law themselves to say "a 'recon' Agreement is good enough for the proof purpose").. let them explain and if they are wrong show why and where they are wrong.... (If they agree and thank them).. have printed copies of CCa s8 and carey para 133 and 234 and hand to their barrister and judge. Show they have not complied.. then the judge has no choice but to adjourn or throw them out.... simple example below.

 

Good simple straight to the point questions. ie "would you accept that there should be a fuller set of terms and conditions with this agreement". (will induce a yes answer, if they answer no, (1)have a look through some other terms and conditions and explain what is missing; (2)hand out your copies of the cca and para113 and 234 of Carey so they can read it) Then ask , "So you agree this is not therefore a full executed copy of the agreement as required under s78, under those circumstances It also can not be a copy of the executed agreement that complies with ....60,61,62,63 (whichever is your strongest point). Form your questions to suit the way you normally speak.

 

Just change the above to suit your strong points. Give them no room to wriggle. Trap them in with statute and case law. The judge will not take a lot of notice of "your legal opinion" as you are not legally trained.

[shamrocker]

Good stuff Jack. Thanks for this!

 

Sham

[shamrocker]

I appeared for my SJ hearing today and lost! SJ and costs granted.

 

I won't say too much now as I haven't got the energy to fully elaborate, but feel free to ask questions.

 

Basically, they twisted the case around using p.199 of Carey to state that I, as the debtor, had to prove agreement was improperly executed at inception. I tried to explain that the context in Carey was completely different, but the judge bought it.

 

I had planned to bring the cancellation notice into the argument but was so confused by what went before that I just didn't think about it at the time - it may have been useful in casting some doubt. I don't truly understand the cancellation notice requirements anyway, if I'm perfectly honest. I doubt it would have made little difference though, given the way things transpired.

 

I did receive a skeleton argument about five minutes before going in and the judge gave me a bit of time to read it. I'm inclined to think it would have been more proper to have had it in advance as they'd obviously sent a copy to the judge in advance. I'll make a copy of this at some point and post it up as it may prove useful for anyone going through something similar.

 

You live and learn, and all that.

 

Special thanks to the resident experts, particularly The Mould (where have you been?), but also Andyorch and Ganymede. I would also like to single out jackreacher as he's been emailing me stuff behind the scene. I'd have been properly banjaxed without him.

 

Sham

[AndyOrch]

Sorry to here this Shammy...its not a nice feeling losing in court...even worse when you know legally you are correct.Take time to come to terms and when you are ready if perhaps you could in detail run through your experience today for other posters to glean.

 

Regards

 

Andy

[jackreacher]

Just back from a lovely weekend away to hear of your bad news..

It would be interesting to hear more detail but only when you are ready..

 

As Andy said you were technically correct in many ways.. You can only pay what you can afford and there are many on here to help you with charging orders etc .. should it come to that.

 

I still ****es me off that they do not comply with a s78 the case is wrapped up and you have to pay costs...

[shamrocker]

Thanks Andy. I think the lesson for me is to react better to certain situations way in advance of ending up in court, particularly when you're not experienced in that situation. I was really surprised that they'd not produced any t&cs, but now we know why.

 

Yes, I'll definitely post an account of what took place. I think the skeleton document will prove quite useful to some CAG'ers.

 

All told, I'm glad it's over. How they're going to be paid is a different matter - but I'm quite aware of the options here and possible outcomes.

[shamrocker]

Cheers JR... s.78 was a strange one. On one hand their counsel was saying it didn't apply because the agreement was ended. He admitted this claim hadn't been handed down by the higher courts, but he was putting that forward in this instance. But, that not being the case, his position was that they had complied in any case. I referred to s.78 itself...."executed agreement and all terms" etc, and stated that it was clear that important terms were missing, but little heed was given. I really needed someone with the proper legal training and experience in there as I couldn't assert the arguments in the correct manner.

 

As you said in email, a positive assertion should have been made in my witness statement which would have contested specific points that perhaps they would have been pinned on in court.

 

It's unfortunate that this was the outcome, but we learn and move on. Hope some onlookers can learn something from my experience too.

[jackreacher]

Cheers JR... s.78 was a strange one. On one hand their counsel was saying it didn't apply because the agreement was ended. He admitted this claim hadn't been handed down by the higher courts, but he was putting that forward in this instance. But, that not being the case, his position was that they had complied in any case. I referred to s.78 itself...."executed agreement and all terms" etc, and stated that it was clear that important terms were missing, but little heed was given. I really needed someone with the proper legal training and experience in there as I couldn't assert the arguments in the correct manner.

 

As you said in email, a positive assertion should have been made in my witness statement which would have contested specific points that perhaps they would have been pinned on in court.

 

It's unfortunate that this was the outcome, but we learn and move on. Hope some onlookers can learn something from my experience too.

 

 

Quote Originally Posted by ims21 View Post

An example would be where there is no sum due under the agreement.

 

That's not a valid reason...creditors must still disclose copies of agreements ...unless it has been terminated and even then it must be retained for up to 6 yearsicon for historic and money laundering reasons.

 

Andy

 

It seems that their council gave you a way out by saying the agreement had been terminated so they did not have to supply the CCA. As they could only not supply if there was no sum due! lol F'ing hindsight.

 

Are you going to post the skeleton up?

 

Regards Jack

[shamrocker]

Yeah, lots of things have crossed my mind since the hearing. All if's and but's now.

 

Ok, I'll have a go at posting the skeleton now - have lots of scribbles and personal details to edit out first so not sure how long it will take....shouldn't be too long.

[jackreacher]

You are not alone with the ifs and buts... right to the very top it must be the same.

[shamrocker]

The opposition's summary judgement hearing skeleton is attached below for anyone interested.

 

[ATTACH=CONFIG]53108[/ATTACH]

[jackreacher]

The opposition's summary judgement hearing skeleton is attached below for anyone interested.

 

[ATTACH=CONFIG]53108[/ATTACH]

 

Thanks Shamrocker. Enlightening, in the future you will know your arguments better and have studied Carey..lol

 

it will be interesting to see what the site team has to say about the s78 termination and non supply.

 

I do not agree. Most accounts are terminated and the claimants still have to supply s78. ( I feel he may have got his terminations mixed up.)