Pudsters14 vs MBNA

[Cornucopia]

Right and finally this is the DPA close up.... I consider this is an application form and not an agreement as there are a number of prescribed terms missing.........

 

 

Hmm Pudsters, sorry, just jumped on quick as I am at work! It does seem to me that this is unfortunately an executed agreement. We were sent an application form and nothing else and it actually says "Application Form" on it with no T&C's or anything. Yours seem fairly comprehensive.

 

How old is this account is you don't mind me asking?

[Cornucopia]

May 2004 - so nearly 3 years old

 

OK, that explains how they seem to be able to produce. Ours (or rather husband's) is 11 years old.

[Cornucopia]

Corn, aren't the prescribed terms missing such as apr etc? I know they are in the T&Cs on the back but it does say on the front of the form that they can change the type of card if they want to? just wondering...

 

I think (although others may disagree) that is is acceptable to have the apr on the back. I think the type of card would be to do with your credit scoring ie : they may give you a platinum rather than a gold, for example with a higher limit and a better rate. In our case, my husband apparently applied for a Gold card but was actually given a Platinum.

 

This is only the second time I have seen something resembling an executed agreement. Can I suggest you post it (or the link) onto the CCA thread. Also, have you asked M55, he's pretty good with these things.

[Cornucopia]

I can offer a little bit of advice here as I am in the middle of a case too.

 

Advice according to my Barrister...

 

You don't need to refer to exhibits at all. Your bundle of documentation will suffice. Also, if you refer to case law, this should be enough, there is no need to quote all of it in your defence (however, you could put photocopies in your bundle if you so wish).

 

In my opinion, your biggest ace here is the defective default notice. I would refer to that only fleetingly, you do not want to give the claimant the opportunity to go away and attempt to repair it. They can do this, although there are pitfalls in doing so and it is likely to be viewed as an abuse of process.

 

I was also advised to keep my witness statement as simple as possible, the facts only and the effects the situation had on me personally.

 

Remember also the Rankine case. They threw in too much on the basis that they might win on some of the points, but aside from the costs risks, this meant they shot themselves in the foot.

 

I hope this is helpful and I am only passing on the benefit of my own personal experience. Remember that the court will take into account that you are a LIP and I am sure will be impressed with all your hard work thus far.

 

Good luck.

 

Regards,

 

Corn x:)

[Cornucopia]

Right, hang on a minute.......you should have received court directions. Firstly, you would have entered your defence. Secondly, you would normally issue your document disclosure list, as would the claimant and it's at this point that you can ask for copies of documents on their list to see that they haven't got something you don't know about. Next comes your witness statement. You do not need to refer to case law in this. It is simply a summary of what has happened. Your bundle should contain everything on which you intend to rely. In my case, my bundle is everything from the word go. I will PM you.

[Cornucopia]

Hello Corn!

 

Nice to see you back on CAG.

 

 

 

It's an Ace all right! I also agree it's best to keep that one as low key as possible until you can nail the banker to the floor with it.

 

However, if it's after they have Terminated the alleged Account, there is no logical way they can repair an invalid Default Notice once the alleged Agreement has ended. I don't trust them not to try and recreate one, but in many cases, they often leave themselves no scope to do so...i.e. many Terminate straight after the end of the Default Notice, so leave themselves zero time to conjure up another one.

 

The dangerous grey area is after expiry of the invalid Default Notice and before they Terminate. There can sometimes be a little window of opportunity for mischief there!

 

But going back to invalid Default Notices in general, Surfaceagentx20 put this rather well:

 

 

 

His CAG Thread below is well worth reading:

 

A Tale of a Dodgy DN

 

Judges are starting to wake up to the Default Notice issue, and a few cases have been thrown out recently where the Claimant/bank either could not produce one, or had an invalid one. That is, of course, the proper thing for them to do!

 

Cheers,

BRW

 

Hello, nice to see you too!

 

Regarding default notices, it is possible for the claimant to realise that they have screwed up, terminate the current case, re-issue a new default notice and start all over again. They can do it, but as I said, it is very risky and full of pitfalls. My barrister told me to make little of it so that nobody was particularly alerted to it. It holds a lot more strength than the s.78 argument!

 

Regards,

 

Corn x:)

[Cornucopia]

Ok I get what you are saying... i think... I entered my defence and the judge ordered a directions hearing. Then she ordered a list of things that needed to be done prior to a new date for full hearing which is early march. This is the last part of that list. She wanted 1. Claimant to file a fully particularised POC. They have done this. 2. An amended defence from me... I have done this.... And then she wanted witness statements and copies of all the docs we intend to rely upon.... it's this bit i'm stuck with.... I have typed up a witness statement as per one I found on here. But I don't know what documents I'm disclosing or how to set it out etc.... Pudst x x xx

 

I have PM'd you, I am happy to show you my witness statement so you can see how simple it really needs to be. I am sure it is just a case of cutting and shuffling what you have already.

 

As I said, just include everything in your bundle, in sub-sections, clearly marked and perhaps a section for case law if you so wish. It needn't be complicated and you're doing really well, so panic not!!

 

Have you not done the disclosure documents list yet? Have you not been asked to do it?

[Cornucopia]

BRW, I know you're not having a pop! I am merely imparting the words of my eminent barrister!

 

You're right though, they can try and probably won't have a hope in hell, but it doesn't mean they won't!!!

 

Also, as a side issue, and I normally wouldn't divulge such personal information but Pudsters and I have just discovered that we are actually Facebook friends without even knowing it! What are the chances of that??!! Goes to show that we never know who's paths we are crossing on the sites.....a cautionary tale indeed!!

 

I can help her a bit more personally now!!