MBNA / Reston - URGENT - Defense sruck out! pls Help!

[deepindebt102]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Hi Peter,

Thanks for your reply,

I was filing the following defence in a nutshell, I was not prepared and did not ask for help from anyone so some of the points I guess are not even relevant and maybe childish. ahhh

1, I was divorcing in the last few years and the court established that it is a joint debt (but on sole name) . Ex did not contribute, I lost job, could not pay the interests.
2, I have not heard from Reston before, no contact made, calls, nothing
3, contacted MBNA many times but got no CCA and any other documents requested.
4, we are selling matrimonial home and will be able to make payments when it is done (but will have no funds for full payment, only about £5-7k)
5, I am servicing otherdebts in the region of £30k+

I was thinkig about trying to go down to contest the jurisdiction as I am now living abroad.

MBNA issued default notice in Oct 2011, I have got the court claim in Nov 2011 and filed in defence in Dec, then as aresult they have tranfered the claim to my local Court, I was unaware of this as I was already living abroad, there was a deadline on the 27th Feb when I shall attended but could not.

Since then I requested CCA again a few days ago and SAR from the lender.

Thanks for any suggestions Peter,

Regards
John

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

HI

Firstly realisitc grounds for contesting the enforceability of the agreement.

Did the default notice give you 14 clear days before the claim commenced?

Did they comply with the section 78 request and return a true copy of the agreement ?

YOu can state that you have no knowledge of ever signing an agreement, and require to see a copy to condirm:
A) that it was signed and
B) that it was compliant with the consumenr credit act

Was the default notice correct i the sums stated for remedy?

Was the claim correctly particularised, liabilities interest itemeised etc.

All the above are justifyable claims, also the iability to attend the heaing because of your personal circumstances should be enough to have a default judgment set asside and new hearing re scheduled IMO.

Peter

[MIKE770]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

do not use section 78 but section 61 ? I believe is the correct section for them to produce an accurate copy of actual agreement, as strict proof would by be required by you, others I am sure can give actuaal section 61 number.

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

do not use section 78 but section 61 ? I believe is the correct section for them to produce an accurate copy of actual agreement, as strict proof would by be required by you, others I am sure can give actuaal section 61 number.

I dont know where this came from MIke

Section 78 us the correct way of requesting a true copy of a ruuning account credit(credit card) agreement.
If they do not supply one the connot enforce until they do.

Section 61 is concerned with signing of agreements nothing to do with agreement requests.

Peter

[MIKE770]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

I dont know where this came from MIke

Section 78 us the correct way of requesting a true copy of a ruuning account credit(credit card) agreement.
If they do not supply one the connot enforce until they do.

Section 61 is concerned with signing of agreements nothing to do with agreement requests.

Peter

Production of an actual signed copy of agreement which is held by O C as strict proof of an existing agreement is in place,.

[teaboy2]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

I dont know where this came from MIke

Section 78 us the correct way of requesting a true copy of a ruuning account credit(credit card) agreement.
If they do not supply one the connot enforce until they do.

Section 61 is concerned with signing of agreements nothing to do with agreement requests.

Peter

Hi Peter

Section 78 is fine to use prior to any legal proceedings, but it should not be used in court as part of a defense (Unless of course they fail to fullfill a section 78 request) as they simply only need to produce a reconstituted version, and have a witness state it was signed - And we all know such witnesses will say all agreements they have processed were signed correctly.

What i believe Mike is referring to is using section 61 as part of the defense to force the claiment in to having no choice to show that the agreement was proper executed by providing the original copy complete with signiture.

[MIKE770]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Hi Peter

Section 78 is fine to use prior to any legal proceedings, but it should not be used in court as part of a defense (Unless of course they fail to fullfill a section 78 request) as they simply only need to produce a reconstituted version, and have a witness state it was signed - And we all know such witnesses will say all agreements they have processed were signed correctly.

What i believe Mike is referring to is using section 61 as part of the defense to force the claiment in to having no choice to show that the agreement was proper executed by providing the original copy complete with signiture.

Yes, Teaboy is right that was what I was obviously not clear about within my statement, it being the point I should of made clearer, sorry Pete.

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Yes, Teaboy is right that was what I was obviously not clear about within my statement, it being the point I should of made clearer, sorry Pete.

Yes it is true , but in the OPs cse i do not think they have replied to the section 78 request.

This means that the enforcment cannot continue, the OP is facing default judgment and is looking for legitimate reason to chalelnge, failure to comply is just such a reason.

Once the copy has appeared you can use unenforceability under section 65/127 as a reason why the agreement is irredemably unenforceable, and part of that reason may well be that the contract was not properly executed as per section 61, but just yet we do not know what they will come up with.

Peter

[MIKE770]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Yes it is true , but in the OPs cse i do not think they have replied to the section 78 request.

This means that the enforcment cannot continue, the OP is facing default judgment and is looking for legitimate reason to chalelnge, failure to comply is just such a reason.

Once the copy has appeared you can use unenforceability under section 65/127 as a reason why the agreement is irredemably unenforceable, and part of that reason may well be that the contract was not properly executed as per section 61, but just yet we do not know what they will come up with.

Peter

Point taken, keep it in limbo for now & see what transpires.

[deepindebt102]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Thank you very much Guys,
your are amazing, you gave me some hope to challenge it! Thanks!

Any chance you could help me to draft this letter to the court? if you could give me some pointers I would appreciate very much.

If I understand well, I need to challenge that I have not provided the CCA based on section 78 of CCA act.

further, can I mention that I am no longer resident and I want the hearing to be taken place abroad?

This is the draft I have so far:

Dear Sirs,

I hereby formally inform you that since 5th January 2012 I am no longer resident of the United Kingdom.

I have already not been residing in the UK when the case was transferred under your County Court’s jurisdiction, neither I was informed of the Court Hearing on the 27th February and such, I could not attend in person to contest the County Court’s jurisdiction and advise the Court that I wish my case to be heard by the ABROAD Court system.

I hereby withdraw my previous defence what I have filed on the 14th December

I have contacted the Claimant and its appointed solicitor in registered Royal Mail service to request a copy of my Consumer Credit Agreement, pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974). It is my second attempt to recover such documents as it was comfortably ignored by the Claimant and Restons Solicitors as well.


I do not recall ever signing the Costumer Credit Agreement and until it is provided, I do not accept this debt. I require to see a copy to confirm it was signed and it was compliant with the consumer credit act.

Sincerely,
John

[deepindebt102]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Dear Peter,

I am attaching the claim form if you could kindly take a look?

I am not 100% sure if it is following your question of:
"Was the claim correctly particularised, liabilities interest itemeised etc."

Thanks
Regards
John

[deepindebt102]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Hi Guys,

I was requesting CCA from Reston from my new address abroad.

As a matter of urgency, I asked a friend in the UK to have it printed out and send it to Restons recorded delivery with a £1 cheque.I have got back a letter from restons addressed to my old address and it gets forwarded to my abroad address via Royal Mail that they can not communicate with me as the letter CCA letter I sent to them was NOT SIGNED!

It was digitally signed from the other hand

Obviously, I can not sign a letter to them as they can use my signature to reconstruct a CCA, what options do I have?

Thanks
Regards
John

[Guest]

Re: MBNA / Reston - URGENT - Defense sruck out! pls Help!

Yes the POC is a bit thin isnt it.

Simple defense. You put the to strict proof thar a properly executed and signed agreenment ever existed.
They are in breach of section 78 in that they have failed to supply s true copy of the agreement, requested on***** regesterd letter number**** and therefore the greement cannot be enforced under 78(4).

You dispute that an agreement was ever signed as required under section 61.

I presume they have sent statements and reminders to your old adress without you having to request the with a signed document so what is the problem with the true copy?
You may wish to remind them of this.

Tell them that they will not be able to enforce untill they comply, or sign with a modified sig that you would recognise if duplicated.

Peter