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

[teaboy2]

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

AT the risk of getting banned again

The court in a civil case decides who has the right to reclaim goods or liabilities under a contract.

It does not matter who the debtor or claimant is or where they come from it is about who is liable under the agreement.

Once the judgment is made, it is possible that inforceing this judgment may be a problem.

But the actual proceedings leeding upto the judgment are not effected by the nationality of either party, as long as the contract was drawn up under the jurisdiction of the CCA.

Peter

If a court does not have jurisdiction over both claiment and debtor they do not have the legal jurisdiction to make any such judgement or court order. The case simply can not go ahead and neither can the claim.

According to what you said above, a claiment would be able to go to court get a judgement regardless of whether the defendant knew about it or whether the defendant was under the jurisdiction of the UK courts or not, which is simply not true. It would breach so many of the defendants rights i would dread to list them not to mention international law that governs court geographical jurisdiction. A courts jurisdicition is just that, geographical if you reside outside of that geographical territory then you are not under the jurisdiction of that geograpahical territory or its courts or its laws.

[Guest]

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

Hi As a final attempt

The court is saying who has the rights to liabilities under the contract, it does not mater where the parties are, jurisidction is only relevant as far as the contract is concerned.

The contract was made and beached in the UK.

Last word

Peter

[teaboy2]

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

So what your saying is that if a russian business man, came to the UK for 7 days, signed a business contract with a british company to supply the russian mans company with goods, and the russian failed to pay for said goods, breaching the contract that the british courts would have jurisdiction, simply because the the contract was signed in the UK. That is simply not true, unless there is a specific clause in the contract stating the UK court has jurisdiction in any legal dispute or enforcement of said contract.

However if no such clause exists in the contract granting the UK courts jurisdiction. Then as such the UK company can not seek judgement or get judgement in the UK courts without the Russian businesman agreeing to UK court's jurisdiction first. Once the claim is issued all the Russian man has to do is acknoledge the claim then file an application within 14 days disputing the UK courts jurisdiction. Once he does that, its end of story. Unless off course the UK company can take it to a russian court, which is highly unlikely as their is no agreement between britian and russia that would allow the UK company to take it to a russian court where it is heard under UK law - so the UK company has no chance of enforcing the contract at all. There only option would be to sell the debt to a russian company who can then take it to a russian court.

Now even though a CCA is regulated under UK law, it does not make it a reciprocal agreement, so all the debtor has to do is acknowledge the claim and then put in and application disputing the UK courts jurisdiction over him/her.

Just because a contract is govern by UK law such as a CCA, it does not give the UK courts automatic jurisdiction over a person residing outside of the courts geographical jurisdiction. As such they can not make judgement or enforcement against a person outside of the courts jurisdiction. It would be a breach of international law and the debtors rights.

[Guest]

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

So what your saying is that if a russian business man, came to the UK for 7 days, signed a business contract with a british company to supply the russian mans company with goods, and the russian failed to pay for said goods, breaching the contract that the british courts would have jurisdiction, simply because the the contract was signed in the UK. That is simply not true, unless there is a specific clause in the contract stating the UK court has jurisdiction in any legal dispute or enforcement of said contract.

Yes if the contract was made here a british judge would have the right to decide who was liable under it, common sense really


.

Peter

[teaboy2]

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

Peter both parties are liable and have liabilities under contract - no judge is needed to decide that.

Point is a judge in a UK court can not "enforce" or "pass judgement" on in regards to liabities owed by a party that does not reside in the UK as that party is outside of the UK courts jurisdiction. Only if that party agrees to the UK courts jurisdiction can the UK court enforce any liabilties that party owes under said contract.

International law simply prevents UK courts and any other nations courts from extending its geographcial jurisdiction beyong its sovereign territory, if a court extended its jurisdiction into that of another countries territory it would be in breach of that other nations sovereign territorial integrity aswell as international law.

For example Argentine laws can not be applied in the falklands nor can any judgement passed in argentina against falklander islander be valid (unless the islander committed a crime in argentina and was arrested in argentina, or resided in asrgentina at the time a civil claim was made). As it would be in breach of the falklands territorial integrity as well as international law if argentina tried to impose its law on a falkland islander residing in the islands or a company doing business in the islands.

[Guest]

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

Peter both parties are liable and have liabilities under contract - no judge is needed to decide that.

Yes this is correct.

Both liable irrespective of where they live

Peter

[labman]

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

Good Morning both,

An interesting debate. I have not read ALL the thread, so forgive me if my opinion is incorrect. The initial post certainly seem to hang on the definition of the word 'enforcement.'

I'm sure you both know this, but for the benefit of others reading this thread there is a clear distinction between 'judgment' and 'enforcement.'

Judment is the official decision of a Court of Law. A final judgment resolves the issues involved in the lawsuit, and determines the rights and obligations that each party in the lawsuit has. For example, in a civil case, the Court may find the defendant liable and award money to the claimant, or it may find the defendant not liable and award the claimant nothing.

In this case, let's assume that the defendant is living in another part of Europe, so he does not turn up to court. In this case a 'default judgment' is likely to be awarded against him.

Now the judgment has been made, the judment against the person living abroad can be 'enforced.'

Enforcement of a civil judgment arises when a money judgment or order for support is not paid. Although most people comply with a judgment issued by a court, some people simply ignore the judgment and do not pay. When a person does not pay, enforcement is required to make them give the claimant the money owed.


If a claimant who has been awarded money or support wishes to enforce that judgment, he will usually need to go back to court in order to do so if the other party (called the "judgment debtor") is not paying.



Enforcement can be carried out in foreign countries, judgment cannot is the common understanding.



HOWEVER this issue has now been massively complicated by 'extraterritorial jurisdiction.' Initially intended for crimes such as terrorism, child sex offences, etc... the issue of extraterritorial jurisdiction has now spread into ordinary day to day offences and there is, at present, no conclusive answer of which I am aware. Excuse the pun, but 'the jury is still out!'


The European Court of Human Rights seems to be judging each case on its own merits, thus every case stands or falls on its own merits.



If my understanding of the debate above is correct, there is therefore no right or wrong answer. Usually the judgment could only be heard here, but enforcement could take place elsewhere. Sometimes, if pushed far enough, the European Court of Human Rights may enable the case to be heard in a different jurisdiction.



I hope this settles the issue - I wasn't expecting this sort of reading on a Saturday morning, nor do I want to see two of my friends fall out over this! :beagle:

[mystery1]

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

An English company can't take a Scot to court in England.

http://www.govanlc.com/suedinengland.htm

Civil Jurisdiction and Judgments Act 1982 This covers the UK.

M1

[Guest]

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

Good Morning both,

An interesting debate. I have not read ALL the thread, so forgive me if my opinion is incorrect. The initial post certainly seem to hang on the definition of the word 'enforcement.'

I'm sure you both know this, but for the benefit of others reading this thread there is a clear distinction between 'judgment' and 'enforcement.'

Judment is the official decision of a Court of Law. A final judgment resolves the issues involved in the lawsuit, and determines the rights and obligations that each party in the lawsuit has. For example, in a civil case, the Court may find the defendant liable and award money to the claimant, or it may find the defendant not liable and award the claimant nothing.

In this case, let's assume that the defendant is living in another part of Europe, so he does not turn up to court. In this case a 'default judgment' is likely to be awarded against him.

Now the judgment has been made, the judment against the person living abroad can be 'enforced.'

Enforcement of a civil judgment arises when a money judgment or order for support is not paid. Although most people comply with a judgment issued by a court, some people simply ignore the judgment and do not pay. When a person does not pay, enforcement is required to make them give the claimant the money owed.


If a claimant who has been awarded money or support wishes to enforce that judgment, he will usually need to go back to court in order to do so if the other party (called the "judgment debtor") is not paying.



Enforcement can be carried out in foreign countries, judgment cannot is the common understanding.



HOWEVER this issue has now been massively complicated by 'extraterritorial jurisdiction.' Initially intended for crimes such as terrorism, child sex offences, etc... the issue of extraterritorial jurisdiction has now spread into ordinary day to day offences and there is, at present, no conclusive answer of which I am aware. Excuse the pun, but 'the jury is still out!'


The European Court of Human Rights seems to be judging each case on its own merits, thus every case stands or falls on its own merits.



If my understanding of the debate above is correct, there is therefore no right or wrong answer. Usually the judgment could only be heard here, but enforcement could take place elsewhere. Sometimes, if pushed far enough, the European Court of Human Rights may enable the case to be heard in a different jurisdiction.



I hope this settles the issue - I wasn't expecting this sort of reading on a Saturday morning, nor do I want to see two of my friends fall out over this! :beagle:

You beet me to it this was the point i was trying to make.

The diffence between enforceing the agrement and enforceing the judgment.

In the OPs case there is no reason why the agreement cannot be enforced, it is simply a case of the courts deciding who is liable unde the agrement.

Once judgment is made it is upto the claimant to enforce the judgment.
Now it may be that the judgment will have no standing in the OPs country, but that is another matter.

Peter

[teaboy2]

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

A judgement can not be given against a person who lives in another country or/and if they dispute jurisdiction of the claim! (unless their is an agreement between the two countries) Otherwise we would have chinese courts issuing judgements against brits and US Courts issuing judgements against the chinese citizens, do you see just how stupid that is!

Nor can judgement be given when its unknown as to their address, simply sending to last known address is not good enough and will result in automatic set aside when the defendant learns about any judgement, and applies for set aside, where they will then acknowledge the claim and issue and application disputing the courts jurisdiction over them, which they can do from the country they are residing in as that is where the POC will have to be sent too, since that will be their known address after the set aside. Which as a result prevents the court from hearing the claim and making any judgement.

Your confusing a judgement given against a foreign national whilst they are in the UK over that of a foreign national having judgement made against them when they are not in the UK and therefoe not able to defend themselves if they have not received the POC nor do they have to defend themselves if they had received the POC as they could simply apply to dispute the courts jurisdiction.

If i wanted to enforce a claim against a supplier outside of the EU i would have to employ lawyers in the defendants country, but first get permission from the UK courts, and then seek the enforce my claim in court in the defendants own country.

If i had a claim against a national living in an EU country, I can not get judgement in the UK unless they agree to the UK courts jurisdiction. Instead i can either get an EPO from the UK court, which i do not require a judgement against the defendant for in order to get, i can then seek to enforce the claim for payment against the defendant using the EPO. Or i can simply sell the debt to a debt collection company that is licensed to operate in the Defendants country. I can not get a judgement against them in the UK whilst they reside in a different country, unless they happen to be in the UK at the time. It is a breach of international law to issue judgements against a foreign national when they are outside of the courts geographical jurisdiction and living in another courts jurisdiction unless their is an agreement between the two countries that would allow it.

[Guest]

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

Sorry, none of the above applies to the OP. For the reasons previously stated.

Peter

[teaboy2]

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

Your right the whole argument does not apply to the OP as they had choosen to defend but did not receive notice of the claim being assigned to supposed local court as they ceased residing in the UK after acknowledging the claim. As a result they can get the judgement set aside on the basis they were and still are residing abroad as and as such the documents went to the last known address, and not to their current address in another country. This will then restart the whole process where the claiment will have to acknowledge receipt of POC - Though this time they can send an application to the court disputing the courts jurisdiction as they no longer reside in the UK.

All the claiment can do then is either take it to a court in the country where the defendant resides and have the claim heard under UK law or apply for an EPO, to enforce payment (epo does not require a prior judgement) The claiment can not however apply for a judgement in the UK court regardless of the CCA agreement being governed by UK law as UK law does not apply to the country where the debtor is residing. The only other way would be the EU court.

Anyway am not going to make any more posts on the subject.

[deepindebt102]

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

Hi Guys,

First of all thanks a lot for the advice you have just given me! It helps a lot!

I am trying to set the judgement aside, so I am drafting the following letter to them.
Would you please take a look at this draft I have so far? Thanks a lot!

I have heard that there i sa way to request the claimants documents from the Court, I would like to do this but not sure what Act I need to reference there.

-----------------------
Dear Sirs,
I hereby formally inform you that since 5th January 2012 I am no longer resident of the United Kingdom.
Due to my financial circumstances as being unemployed and can not support myself in the UK, and also due to my ill health, I had to move back to live with my parents in XXXXXXXXXXXXX.
Please find proof of address in a form of my latest electricity bill provided.
I was not residing in the UK and I was not informed of the Court Hearing on the 27th February and such, I could not attend in person to contest the XXXXXX County Court’s jurisdiction and advise the Court that I wish my case to be heard by the FOREIGN COUNTRY Court system.
I hereby withdraw my previous defence what I have filed on the 14th December and when I was unaware that I will be moving to a different jurisdiction.
My aim is to settle the claim under the FOREIGN COUNTRY's Court System and I will try to make sure a satisfactory agreement is reached for both the Claimant and myself.
For your reference, 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 hereby officially request from the XXXXXX County Court all the Court documents submitted by the Claimant to support their case under the legislation of………
Please use my FOREIGN COUNTRY residential address as contact, what is: ..............

This mail was sent by Fax and by registered mail as well to ensure it is lodged on your system prior the 30th of March. Yours Sincerely,
---------------------------------

Thanks a lot for any help!

also, If I get the order struck out, can I still send Full and Final Settlement offers to them? even though I request the hearing to be heard abroad?
would they entertain any offers?


Regards
John

[deepindebt102]

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

Any idea anyone, I was told on a different forum that I do not really have chance to contect the jurisdiction and I shall try to negotiate with Reston,

What do you guys think?

Thanks
John

[Guest]

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

Hi
As i asked previously, we need to know what your orriginal deffence consisted of.

Have you had a fully itemised claim? Have they issued a default notice? Do they have an enforceable agreement?

Have these points been raised already?
Peter