Hi all, been a while since I've been on the site but its still as informative as ever!

A friend of mine has been issued with a claim form from the above beautiful people for an outstanding (MBNA) debt.

I've done a CPR 31.14 and they've (verbally) informed me they won't be able to comply before the Acknowledgement of Service is due.

Against my advice he went to a Claims company for the PPI reclaim but there are a lot of late charge/over limit fees which may or may not have been reclaimed, no one seems willing to affirm or deny this.

Would it be acceptable to admit only part of the claim on the grounds it's possible these could still be reclaimed?

Or is it more likely the claims company would have got these back as well and even if they didn't he would be deemed to

have accepted a final offer by accepting what was offered?

Many thanks

Ric

I Have seen recons with clear evidence of usage of the credit facility and payments made to the account accepted by a court.

Yes That's correct, many judges will accept reconstituted agreements if there is clear evidence of use such as statements etc.

I've even had an incorrect copy (wrong % minimum payment) argued as de minimus by their brief and cos it was a summary judgement hearing they had an opportunity to change the

document before trial. From experience MBNA don't back down easily...

Hi Smoothound

I wouldn't worry too much about the DN especially if it comes from Mercers as its defective.

Standard mo from BC, bet there'll be a few other DCA's along the way.

Ric

Hi Steve, a word of advice from someone in an identical position.

My PPI was sold through Crystal Windows, via CGU (now Aviva), who were not signed up to the code of conduct as its pre 2005.

FOS have had the claim for over 18 months and keep reiterating this in each regular update so I hold little hope of them resolving the issue, ever.

Link bought the debt and equally keep reminding me of my indebtedness to them.

Just thought you should be aware, especially if you're considering the FOS route and moreover the fact that Zenith are in administration.

As dx has stated your best option is through the courts.

One question for the CAG team. Does the PPI documentation fall within the "any document referred to in it" for the credit agreement itself?

I can prove it wasn't supplied with the executed agreement under section 62 or 63 of CCA 1974

Ric

Not really

If the CCA they sent is a recon they could have got the wrong interest rate meaning its not a true copy. I'd do a SAR right away as even if they only supply six years worth there could be errors in there somewhere. I went back to 1998 (have all my statements) and they didn't argue the PPI or the overlimit & late fees just the contractual interest.

Ric

Thanks Mister M

Much appreciated

Ric

Hi toxic

Just a few pointers to help from my experience with MBNA and court proceedings

They placed a compliant DN in the bundle and stated the defective one (full balance) was a later issue implying I lied about which copy was sent first.

Their usual MO is to apply for summary judgement and rack up costs (4-5k) to scare you off.

They will try and settle 3 days before the trial date.

They may have made an assignment but failed to inform and will submit as with the DN above .

IMHO this could be a testing ground to see what your defence is and then edit documents before any hearing.

If you have any early statements (sorry i didn't check the whole thread for SAR) I'd check the minimum payment (2.25%) on the agreement against those statements

as they get this wrong which would prove the CCA is not a true and honest copy!

As for the creditor signature they can (I'm sure Andy will correct me if wrong) send you an unexecuted copy which becomes executed upon your signature.

It does look like it may be reconstituted but they should have told you that when they sent it!

Any other pointers glad to help, if its any consolation I'm paying back £30/month instead of £250.

Good luck

Ric

Hi Mister M

Congratulations on your success!

I have a case going through with the FOS and am seriously confused with what they have stated with regard to being put

In the position had the PPI not been sold so am keen to hear what the offer from BC will result in.

I have declined the offer made by the bank because it won't repay the over limit fees incurred as a result of the PPI.

Perhaps someone can offer more clarity on this point before I start a new thread but according to the FOS they won't address

the issue of charges except by a separate case. Why is this? Does the law of restitution not mean reversion as if the contract never existed

and therefore any associated charges (caused by the PPI premium) being recompensed in order to be put in the position before the mis selling?

The bank are adamant they will not pay and I fear the FOS will take this stance as well!

Does this mean the only way to get the unfair charges back is to issue proceedings and direct the judge to similar precedents?

Sorry to hijack but will keep looking in to see how they offer the refund.

As a matter of interest how long did it take the Ombudsman to uphold your complaint, weeks, months or years?

Ric

Hi Kara

I wish you luck cos you gonna need it!

When did the loan begin as prior to 2005 ppi wasn't regulated so claiming is more complex as

previously stated

If you're reading this ims can you offer any further clarity with s56 cca1974 ?

If the original creditor was replaced (from FNB to GE Money) during the term would s56 still apply given that

any agent was acting on behalf of FNB or having aquired the rights and liabilities do GE

become as liable?

I know the FOS don't see it that way but wandered if there was case law to back it up

Keep us posted

Ric

Hi Angry, if you bought it on credit you have the right to seek redress from the creditor if that helps!

Ric

Hi Kara, I had exactly the same response from GE.

The complaint was sent to the FOS who are still looking into it but a conversation with them suggests that there needs to be a link between the underwriters and the broker who sold you the PPI.

I'd also look closely at the underwriters info as although Cardiff Pinnacle may have administrated the insurance (as was mine) but it was CGU (Norwich Union/Avila) who underwrite the nsurance.

Will keep an eye on your thread

Ric

Hi Madge,

Been to court with MBNA and wish you the best of luck.

Mine was a PPI set off but included all the charges (overlimit and late fees) dating back to 1998,

which they agreed to but I think only to show good favour with the court.

This meant they could argue the contractual interest on the PPI

but the DJ wasn't having it,

mainly because I prepped a 600 page bundle in response to their 300 pages.

They usually send a local barrister

so I would focus on the fact that they have already paid you some compensation and therefore admitted liabilty.

With the bundle, make it chronological and chaptered and know it.

Little coloured tabs with a key to notes really do help you find points you need to argue.

Anything else I can help with please ask.

Hi missy,

don't forget that you can also claim back any late payment or over limit fees plus contractual interest during the period when PPI was being applied to the account

Ric

Not entirely sure Pru as you have two trains of thought going here.

I think you should get back what you are owed so if the PPI & interest covers the claim then the other charges could be a seperate claim (which puts you in credit) but I would check with the legal guys.

Even if you turn up in court and the judge says, "well they paid you the PPI back and you deposited the money.

The refund stated it was a full and final settlement." You then have to argue the refund was insufficient (as I did) and then show (by evidence) that the premiums and interest anount to much more then they offered. If that failed you would need the other charges to back you up.

Just remember if you counter for over 5k then they are at liberty (as are you) to seek costs in case. They had me down for 6k in costs from 2 hearings alone so a full trial will easily be a 5 figure sum.

It may be enough to persuade them into a discontinuance which is the preferred option.

It really depends on what you want to achieve at the end of the day.

Ric

Hi Pru

I think Andy has hit the nail on the head here. You want to keep the counter claim in line with their claim so as to create a set off defence, i.e. whatever they are claiming can be eradicated by the unlawful charges plus interest.

If you use their contractual rate to get the interest figures on the PPI/Fees it will be alot easier than arguing Sempa Metals precedent, especially as they have paid you some of the interest (but not all) and then hit them for all the late and overlimit fees together with interest at their contractual rate as this is in line with OFT guidance.

The 8% is added to the whole figure of your counter claim under s69 which the courts would (hopefully) award if successful.

With any luck the claimant will see you have a valid counter claim and back off or refer the case back to MBNA.

Hi Pru

If the charge was made when the interest rate was 19.9% then thats the interest rate you should use for calculating the interest of that particular charge. As and when it varies you should calculate each interest charge at

each interest rate. That does mean having the statements to do this or trawling through the SAR as this should show you the interest rise somewhere in there. Then calculate all the charges that follow at that interest rate and so on. It sounds as if the 6 page agreement is the current t&c's.

I think any calculator is ok as long as it's accurate. Pretty sure the CAG is bona fida but do a double check with another one so you can't be caught over inflating. I used Black Lapthorn and New Square Chambers, both came out identical.

Yes SJ means Summary Judgement. Either party can apply to the court for a summary hearing if they believe the other side has no prospect of success at trial because of an existing legal precedent or a lame claim/defence.

No, what I meant was MBNA 'tried' to suggest they only kept six years of records so the PPI they offered was less than I'd paid them and consequently so was the interest. If they've provided you with all your statements, or the SAR goes back as far as 1998 then lucky you. I went to court to make sure I got ALL my money back.

If no Notice of Assignement it could mean that MBNA still own the debt, though that doesn't ring true if Link issued the claim. Again I've read here that they can turn up with one in court and it's acceptable!

The PPI interest looks too low to me...depends on

1) How much the PPI premium was (it's calculated on a sliding scale according to what your outstanding balance is)

2) What the rate of interest is at the time (as mentioned above)

3) When the charge was made (e.g. a £10 charge in 1998 is worth more than £10 in 2002)

If you have time google the Blake Lapthorn, it's really easy to use and would serve as affirmation of the CAG figures

if nothing else

Not sure if banking the payment is acceptance of their offer for PPI reclaim.

You still have all the Late/Overlimit fees so maybe you should do a seperate calculation of these just in case they argue that point against you in court then you have a back up plan

I doubt if they wouldn't charge you late or overlimit fees. Does the SAR show anything? Perhaps thats when they charged you the most times, again trying to decrease their liability of repayment.

No the transfer comes with the Allocation Questionaire (AQ) It's protocol to be heard in the defendants local court which is why I hope you don't have to issue a seperate claim against MBNA

I suggest you PM Andy with regards to how you defend against one party whilst counterclaiming against another.

Thats probably the most important bit right now.

Ric

Hi Jules

don't know if you've had the SAR responses as yet but don't expect them to go back more than 6 years ( its how they save themselves money) and don't accept a PPI settlement without checking

The interest yourself. There's plenty of helpers here with spreadsheet calculators to ensure you get what you deserve, including late and over limit fees.

Ric

Hi Pru

first off your application form states 19.9% at inception, so are the terms of 23.9% the current terms and not the originals?

I had every statement throughout the entire history of the account so when it came to calculating the interest on the PPI & charges I could calculate the exact APR at the relevant point of each charge. MBNA claimed in court they couldn't see how I'd arrived at the figures for the interest which the DJ said was a poor excuse given they'd had 2 years to resolve the issue!

Then he turned his attention to me and asked how I had arrived at the figures in the bundle. Very important pont here!

[by the way they had sent me 300 pages of documents and I'd read on this forum they, very cleverly, don't number the documents in order to try and trip you up in court, so, unbeknown to them I made my own bundle, combined their docs and numbered them myself, some 600 pages all told, and made 5 copies, 1 for submission to the court, 1 for the judge (the court had misplaced the submitted copy) and 2 copies for each side, in case they brought witnesses]

I'd used an online calculator from Blake Lapthorn (heard that a LIP had their whole communication from here disclosed to the judge so was wary, tho I now believe the CAG has more kudos from recent successes) which is a very well known company, and painstakingly calculated the exact interest at the exact rate at the relevant time of both the PPI premiums and fees.

It wasn't much fun but did gain me the respect of the DJ and I'm convinced helped get a no costs order for the two SJ hearings so far. The thinking behind this was due to the fact they couldn't go back more than 6 years (2004 - 2010) in order to save themselves repaying all the monies due so basically if you have the relevant info and do your homework properly you should be home and dry.

I can't say for sure how it works with an assigned debt. This is something the legal team should help you with as as far as the court is concerned MBNA aren't party to the proceedings so I'd double check with them as to how you approach the issue. That's probably why Link buy the debts in the first place. Even if you sent the detailed breakdown of charges they wouldn't respond so I'd get the legal team to advise you. It may be you would have to add MBNA as party to the proceedings or start a seperate claim against them.

Would like to know myself really. Have you had a notice of assignment from Link? If they have purchased the debt then MBNA have intentionally sold it off so they won't lose any more money to you. Did you accept the PPI repayment as a full and final settlement of the dispute?

Sorry if you have related these answers already.

On the issue of unenforceability, as I said, you don't want to go to trial so it's an either or.

Your docs look identical to mine and I'm convinced the back didn't belong to the front but stupidly misplaced my copy so couldn't prove it wasn't. When the court changed judge on me I decided to settle as didn't have a lifetime to pay back costs if I lost.

Yes correct all late and over limit fees applicable. If asked why explain without the PPI you would not have been over limit and had more money to make sure you weren't late paying either!

Are you sure they missed a year of these or were you under limit at that time?

If I've forgotten any of your points remind me again. Off tomorrow so will check in on you

One more thing, make sure you get the case transferred to your local court.

Ric

Hi loltel

I too had PPI for a GE Money finance agreement so will be following your progress keenly.

They used the same excuse that they gave you, as they weren't present at the point of sale it's not their fault!

The dispute was referred to the ombudsman but they weren't any help either and suggested I contact the sales company who suggested PPI would be a good idea as I was self employed

at the time....

Good luck

Ric

Thanks Andy,

Still a little confused as if recon's are accepted in court then who's to say the t&c's were not on the reverse.

I know Kotecha proved there were none in his case but he had every shred of evidence at his disposal and Pru clearly has not.

Hi Andy

Sorry to hijack you via Pru's thread but is there new precedent since Carey? Or did I misunderstand what that case law decided?

I'm only concerned for Pru here as they will doubtless try to persuade the DJ the agreement is enforceable.

Ric

Hi again,

Just checked your application form and in the paragraph under the PPI tick there is a line which states

" I have received and agree to be bound by the terms and conditions " which is what their lawyers claimed was a reference to those t&c's.

This was unlikely to be on the reverse, more likely a pamphlet which accompanied the card itself so not at the same time and therefore unenforceable

but as you signed saying you had it would be difficult to say otherwise.

Ric

Hi Pru

From my own experience the question of enforceability is subject to the claimant providing a copy of the original agreement as it was when the card was taken out

Kotecha v Phoenix recoveries is the precedent. However, the judge in this case did allow the claimant to provide the original t&c at some later stage and therefore the debt would become enforceable after all. In my own case MBNA failed to provide the correct details at the summary judgement hearing but subsequently sent the correct info before the trial date which is always possible once they realise their info is flawed. My card was also from 1998 and the application DID contain a reference to t&c's albeit they were not on the same page as the signature.

Whether or not this was a true copy is hard to say but they were allowed an opportunity to alter their evidence and that's something I think you need to be aware of.

Perhaps someone from legal can clarify the issue of '4 corners of the agreement' but Carey v HSBC does suggest this is the case and if you take the unenforceable route it won't stop them coming back with the correct details.

The issue of charges is more pertinent as a counter claim will stop them in their tracks and provided the charges are accurate then you have a greater chance of applying for summary judgement on this basis alone. My mistake was to claim unenforceability and the PPI/charges issue at the same time which the judge stated cannot be decided by summary application and therefore the matter had to proceed to trial.

I would submit your defence on this basis and make the SJ application before it gets to AQ stage.

Because you were paying PPI unnecessarily then each of those payments placed you in greater debt than would have been the case so that puts you in hardship because

you could have used this money to pay other debts or even reduce the balance on the card

By the way, my MBNA card (gold) was 17.9% in April 1998 so be careful not to inflate the charges without knowing exactly what the rates were at the time, otherwise your counterclaim could be thrown out.

These should be on the original t&c's and perhaps on the application form itself?

Can you clarify what charges you are reclaiming? Is it just the late/over limit fees as your figure seems unnaturally high!

And don't forget to ask for the 8% the court would award on top of the whole figure, even if you have to pay tax on it.

Ric

There may not be any VAT applicable to the commercial rent charges. As for the 4k that works out at £80 a week so it's not extortionate but Id imagine would also cover

Utilities of common parts like light and heat in corridors etc. But these have to be disclosed if you request how hey arrive at their figures.

Commercial leases are such a minefield even a the best o times!

Ric

Hi there, pretty sure it's 14 days and should be written.

I had a similar scenario with EDF due to my annual review asking for a similar amount on top of the regular DD charge,

although they forgot to include the DD about to be paid so the demand was unlawful, so ask them for your annual statement if not received.

It may be possible the money was taken against future payments due so I would

1)

Have a close look at your usage for the last 12 months and see if you are in credit or debit and if the latter would it amount to the additional charge

2)

Phone them and demand your money back. If they won't return it cancel the DD on the basis they have not provided evidence of your annual usage and ultimately monthly charge.

God luck

Ric