Help

[pompeyfaith]

Joe,

 

Not yet as im taking a few days off from this saga and as the weather down south is nice im using sometime to get my garden in order.

 

I will post soon as I've seen someone.

 

Regards

 

PF

[joemay]

Yes PF, you deserve a well earned break, enjoy:D

[Blossomandebony]

Hi, Pompeyfaith,

 

Just read the thread - very interesting!

 

Just wondered where you are with this at the moment.

 

Have you decided to claim back the PPI?

 

Did you ever receive a full set of statements from MBNA so you can go for a reclaim of charges?

 

Congratulations on avoiding the ccj , by the way!

 

Cheers, BAE

[pompeyfaith]

Hiya Blossom,

 

I dont think i can now get the PPI back as the consent order was for the full amount.

 

But i am considering getting this set-aside in court due to the issues with the DN

 

PF

[Blossomandebony]

What about reclaiming the charges?

 

Or did the consent order state that you will not take any action against MBNA in the future?

 

BAE

[lilly white]

Good God Pf Another Change The Piture What Is This One

[pompeyfaith]

My late Dads Royal Marine cap badge.

 

It on there in honour to him.

 

Regards

 

PF

[pompeyfaith]

Or did the consent order state that you will not take any action against MBNA in the future?

 

Nope it did not state the above, but in order for me to claim the PPI and charges i will have to get a set-aside first as the amount on the consent order includes PPI and Charges.

 

PF

[lilly white]

PF

Excellent choice ,on the badge, with due respect to your father.

The very best regards lilly white

[pompeyfaith]

Thank You Lilly

 

Now as im coming into a fair chunk of money Re: my Co-op PPI claim its worth the £60 i think for an N244.

 

The grounds are there to get it set aside then follow fbb's thread if they wish to start proceedings again.

 

PF

[soothy meldrum]

PF

Sorry to hijack your thread so late in the day but I read the entire thing from start to finish yesterday and am still reeling with shock over the way you have been treated here. I’m only sorry that I did not see this thread earlier and can but hope that I can be of some assistance to you.

 

First off, please accept my condolences on your recent sad loss. Bereavement is bad enough but when it’s in tandem with illness and having to deal with a situation like this it makes it a whole lot worse.

 

I’m speaking to you as a bit of an insider having worked in the Legal profession in the Leeds area for a while and as such I know of Optima and know a good few of the people who worked for their debt recovery and defended litigation department past and present quite well.

 

First things first. When you attended the hearing on 15th June, you agreed to pay £20 per month. You were concerned as to whether or not the order was enforceable. A Consent Order IS enforceable unless it was drafted in the form of a Tomlin Order which simply acts as a stay on the proceedings. If it is a Tomlin Order it should contain words specifically stating that the action is STAYED on terms. If it is a Tomlin Order it should contain a provision giving liberty for either party to apply which means basically that any party can ask for the stay to be lifted and the matter to be brought back to court for determination at trial in the event of e.g default in making payment.

If you feel that justice was not served on 15 June and it was settled by way of a Tomlin Order you can simply do nothing and wait for Optima to make the application to lift the stay at which point you can go to trial and insist on the matter being looked at thoroughly and forensicly by the judge. If it is a Tomlin, your house is safe at least until such time as the trial is concluded and even then, if judgment is entered against you they will still have to enforce the judgment by getting a charging order and then issue a further set of proceedings to obtain an order for sale. There are a lot of hoops they have to jump through and the judge is bound to take into account their conduct throughout the proceedings. It is by no means a foregone conclusion that they will get their order. Equally though, as you have admitted that you had the money it is highly likely that you will end up having to pay something and possibly with a judgment against you unless the judge strikes out the claim at trial by way of punishment to MBNA and Optima for the way that they have handled the claim to date. The judge can do this if he is satisfied that the parties have acted so badly or incompetently throughout.

 

At the end of the day it is their claim and it is for them to see that they have all their ducks in a row. They need to prove their claim. The ball is in their court and you do not have to do their job for them. Bringing a claim to trial is a serious business and the very least you, as a consumer have a right to expect is that such huge companies get things right! They – Optima and MBNA have some very big questions to answer, not least the discrepancy between the two default notices they produced during the process. This seems to have been ignored by the judge at the hearing? You have every right to insist that MBNA and Optima come to court and explain exactly how such a cock up could have happened. Even if it was an innocent error by MBNA, their solicitors, Optima, by not spotting this obvious differences between the two documents have quite evidently failed to do their jobs properly and have failed manifestly to discharge their duty to their clients and to the court (if indeed they had both documents in their possession at the same time – even if they hadn’t, after you flagged it up to them they had a duty to the court and to their client to address this in evidence – i.e an explanatory witness statement for example). If they can’t get this right, what else might they have got wrong during the case?

 

Remember. A trial is a two way process. You have every right to cross examine their witnesses and challenge their evidence. There is a very live matter regarding the DN’s which needs to be addressed. This was reflected in the order made by the court in which you were asked to specify to them who you wanted to call to give evidence.

 

As I can see from your posting of 2 April, Dianne Powell gave two statements for MBNA and you have every right to subject her to a rigorous cross examination on the content as well as submitting her to questioning as to why two Default Notices completely different in content were produced to the court. Incidentally, you may have noticed that she spelt her name wrong on both of her statements! The typing has her name spelt as “Diane” whereas her written signature has her name spelt as “Dianne”. This could suggest either that she didn’t sign it or, if she did sign it, she didn’t read it before signing it. Pretty basic stuff, spelling ones own name right after all! This needs to be fully investigated. If she genuinely does not know how to spell her own name one has to question whether or not she has adequate capacity to sign a witness statement. If she’s signed it without reading it properly, this opens up a massive can of worms! Who typed the statement? Whose statement is it? Why didn’t Optima, their solicitors in their capacity of Officers of the Court, pick up on the misspelling and question it? Again, pretty basic stuff to read and check evidences submitted to court for use at trial. If Ms Powell has signed a statement without reading the bloody thing as she seems to have done by not asking for the misspelling of her name to be corrected, this is a clear contempt of court as there is no way that she could have had an honest belief in its truth if she has not taken the time to read it. It could have said anything! By way of example, she states as a fact that the account number is clearly stated in the particulars of claim whereas you say that it wasn’t and this seems to be confirmed by the posting you made on 14 June at 16:43. This woman needs to be placed in the witness box and cross examined UNDER OATH as to the evidence which she has authorised to be submitted to the court for use in a TRIAL. I wonder also whether she had the earlier statements of evidence in front of her when making reference to “the Rankin case as stated in previous statements”. If it is the case that she merely signed something which somebody else prepared for her without seeing the documentation or being reckless as to what was actually on the document knowing damned well that this was intended to be used as the main evidence in a TRIAL both her and Optima need to be held fully to account for what could potentially appear to be a clear case of CONTEMPT OF COURT which is, of course, a CRIMINAL OFFENCE!

 

The statements appear to be **** poor and the content leaves a lot to be desired. I would be ashamed as a Lawyer to send those documents to court in the state they were! Even more ashamed as a representative of a massive multinational banking organisation that my solicitors and my litigation team would allow the reputation of the company to be represented by such documents. Even the numbering is inconsistent! One of them is numbered 1.1 – 1.11 whereas the other appears to be numbered 1.1 – 5. Complete crap! Where is paragraph two of statement number two?

 

The statements don’t adequately state the source of Dianne Powells information. She claims to have all of this information in her own knowledge but unless she has a photographic memory she must have referred to computer records or some such she needs to be cross examined as to this wonderful memory! All of this use of “The Claimant” and “The Defendant” throughout is a little bit suspect as well. Why she can’t have said “we” or “MBNA” or “Mr X” is beyond me.

 

Another thing about the statements. They are dated 31 March but if you look at the imprint from the fax machine they were faxed to Optima at 08:15 on 1 April (with the exception of one page which is timed at 09:56 on 1 April. You said that they were delivered to you two days late. Well, if Dianne Powell truly made the statements on 31 March and had been advised by Optima of the time limits (as they were absolutely duty bound to do) why did she not cause them to be faxed to you on 31 March? That way you would only have got it one day late. Not ideal but they could have saved you one day delay. Also, this could be construed as yet another attempt to mislead the court.

 

Those statements are utterly disgraceful. If this is the level of attention to detail given throughout, one wonders how they managed to get a figure of £7k for the costs.... what the hell were they doing? Oh, by the way, they are obliged to ensure proper supervision training and management under the Solicitors code of conduct rule 2 and rule 5. Those rules are not there for nothing! It’s all about protecting the reputation of the profession, best interests of the clients, administration of justice etc.

 

Your letter to Optima of 15 April explaining the tragic circumstances surrounding your request for an adjournment should have been date stamped by Optima on receipt. Given the content they were obliged really to take immediate instructions from their client especially as it concerned the viability of a trial date. Trial dates are supposed to be sacrosanct and they, as solicitors should have proactively taken steps to assist the court to manage their diary. Their Case Summary for the May hearing seems to imply that the letter was not received until 27 April which was 12 days after you sent it. They should be asked for the letter to be produced as evidence duly stamped with the date of receipt – don’t settle for a copy to be provided. If necessary they can courier the original to a local firm who can undertake to hold it on your behalf for your inspection. If it was received earlier than 27 April they need to explain why they allowed a Case Summary to be provided to the court with blatantly false information on it and why they failed to treat such a request with the urgency it demanded. It seems utterly heartless to have ignored it for so long. If they failed to take instructions in a timely manner this would potentially be a breach of the SRA code rule 2 seeing as it affected a potential trial date as well as potentially taking advantage of your circumstances in breach of rule 10.

 

Speaking of Case Summaries. I think you mentioned that you had received another one for the 15th June. Who prepared this? Counsel again or Optima. I can’t recall seeing it online. If it was not produced by counsel but by somebody at Optima this would be useful to know.

 

I was very interested to read that Optima actually sent one of their own solicitors to the trial on 15 June. Are you sure that this person was actually an employee of Optima? The reason I am asking is that Optima usually only send their staff to hearings in Bradford or very near e.g Halifax or Leeds. All other hearings are outsourced to external agents. To send a solicitor from Bradford to Portsmouth on a Monday morning and presumably requiring an overnight stay for the sake of just over £6k strikes me as being utterly extraordinary. Did you get the name of the solicitor attending? The judge should have noted the names of those present and in what capacity they were attending. It might be worthwhile for you to ask the court to check the judges notes to see whether the name was recorded or you could try to obtain a transcript of the hearing – you might need this anyway if you want to pursue complaints.

 

If they did send a solicitor from Bradford it tells me that somebody has probably had a right royal bollocking or that MBNA have read the riot act to them and that there is some serious arse covering going on especially if Philip Fellows charged them £1500 for the hearing in May! At a guess I’d say that MBNA possibly told them that they would not be paying them a penny for the work done on the case seeing as they’d allowed the matter to be handled in such an “unfortunate” manner and that Optima had tried to smooth things out by writing off their charges to MBNA. I think that this is probably why they caved in so readily by offering to write off over £7k of costs. They just wanted to salvage something... anything from the situation. By the way. Did they serve a schedule of costs before the trial on 15th June? If so, this might specify the name of the solicitor attending at the hearing. Also does that schedule particularise the names of the fee earners who handled the claim? You may need to call these people to explain themselves regarding the Default Notice fiasco and the drafting and service of the witness statements.

 

If the solicitor who attended came from Optimas office in Bradford his excuse that he had only been given the case at the last minute seems pathetic to say the least. He would in all probability have been given the papers on Friday and had all weekend to look at them. This was after all supposed to be a trial! If he did indeed only receive the papers at the last minute what the hell were Optima playing at by not ensuring that the brief was sent to their representative in a timely fashion? This could be another breach of their obligations to the court and to their clients.

 

If this person was a solicitor employed by Optima and had travelled to Portsmouth from Bradford he would definitely have been fully briefed. As I pointed out above for somebody to travel all that way for a Monday morning trial on the Fast Track is virtually unheard of and there would have had to have been a top level decision taken. The natural inference from this has to be that if he told the judge that he’d not had the chance to read the papers or history he may have been tempted to knowingly mislead the judge to save face.

 

One of your posts says that the solicitor, when squirming under the force of the judges bollocking had mentioned something about a written apology. Did you get that apology? If not, it is possible that Optima might have been in breach of an undertaking given by them or on their behalf to the court dependant on the words used. It might be worth your while spending a few quid on getting the transcript I mentioned before. Breach of an undertaking given to the court is an extremely serious matter.

 

By the way. I have not seen your defence but have noticed that in the MBNA printout you put on on 18 June the notes say "CH issued defence particulars of claim not detailed enough" and then goes on to mention that you "requested docs but not received". It truly beggars belief that on this basis Optima adivsed their client to pursue a Summary Judgment application given the burden of proof required for such an application to succeed. This could have been nipped in the bud if they could have used some common sense and simply sent you the documents or redrafted the particulars. Instead they took it to a fast track trial at which they had no witness and blew 7k in costs to end up clawing back 20 per month. Top class law firm then.

 

If I was you I would not let this matter drop. At the end of the day, you may well owe them money but you have the right to expect a certain level of competency, honesty and courtesy from these people as do all members of the public. The courts are there to ensure that justice is done to the parties and the CPR is the framework under which Optima are obliged to operate and in accordance with the full provisions of the Solicitors code of conduct.

So I would pursue this. Dianne Powell needs to be called as a witness as does the supervising solicitor and the fee earners who dealt with the case.

 

Inform the SRA – Legal Complaints Service of the breaches, the media might be interested in the ordeal you went through – Watchdog etc, Banking Ombudsman, Financial Services Ombudsman. Also I would get something fired off to the CEO of MBNA and ask if he is proud that his CUSTOMERS are being treated in this way by his company and their lawyers.

 

Remember, you and the public have rights and these banks and their Lawyers are obliged to respect those rights.

 

Good Luck!

[AndyOrch]

Exellent Post Soothy.

 

Regards

 

Andy

[pompeyfaith]

WOW excellent post indeed Thank You this puts it all into perspective Firstly do you mind if i print that post of to show to a solicitor as im sure that posting would sway a solicitor to take this on as it raises many issues i did not spot i still have the bundle and all paper filed away safely i will post up the consent order for you this evening to have a look at.

 

I belive as there are many issues it is now to big for me to take on as i litigent besides due to the stroke i had my memory is not very good so am bound to forget things to raise in court this i believe they took advantage of.

 

I am not going to let it go though as the stress and anxiety of it is still playing its part on me and leads to a lot of worry.

 

So yes it has to go back to court but this time with legal backing.

I cant thank you enough because that posting really has shown me a way forward as i find it all very confusing.

 

I typing this out in from of my tv on the wii lol the wife is hogging MY COMPUTER really need to get a laptop lol.

 

ill be on-line this evening to add to this.

 

Regards

 

PF

[underdog13]

superb post, Soothy Meldrum:D

[pompeyfaith]

Oh the legal rep for optima that showed up on the 15th june i have her name on her witness statement that she produced on the day in hindsight i should of reguested that it not be produced as i did not have time to digest it.

 

ill post it on here tonight.

 

Regards

 

PF

[banker_rhymes_with]

Hello soothy meldrum!

 

Welcome to CAG.

 

Excellent first Post.

 

Cheers,

BRW

[pompeyfaith]

My dad god bless him was a fighter so i will honour that and fight this.

 

The Co-op PPI case i won should pay out soon so i will have the money there to see this off and put to rest.

 

Regards

 

PF

[pompeyfaith]

Yes that was such an excellent post i got to read it again lol.

[soothy meldrum]

WOW excellent post indeed Thank You this puts it all into perspective Firstly do you mind if i print that post of to show to a solicitor

 

 

Pompey

 

Please feel free to show the posting to whoever you like. I am only too pleased to help.

 

It would be useful if you could double check the name of the solicitor who attended then I can verify whether he was indeed an employee of Optima doing a 530 mile round trip for £20 per month and the likelyhood of him knowing about the history of the case bearing in mind what he told the judge.

[soothy meldrum]

 

Oh the legal rep for optima that showed up on the 15th june i have her name on her witness statement that she produced on the day

 

PF

 

OK. You stated before that it was a man who turned up from Optima. Even better if they sent one of each though. It shows that they would have been absolutely bricking themselves.

 

It is very naughty of them to try to sneak in another witness statement on the day of the trial

[pompeyfaith]

that was a typing error by me it was a pretty young lady that showed at the last hearing also the judge did not have the trial bundle with him as optima did not send it back after they updated0it

[pompeyfaith]

the statement she produced had a hardwyck buildings label on it but a search of there site did not show her but mr fellows was on the site

[soothy meldrum]

the statement she produced had a hardwyck buildings label on it but a search of there site did not show her but mr fellows was on the site

 

I see. Hardwicke Buildings is indeed a set of Barristers Chambers.

 

Are you sure that this was a Witness Statement and not a Case Summary.

 

Ive a feeling that this may have been a Junior Barrister at the hearing and not a solicitor from Optima after all.

 

Would still be useful to know her name if you could confirm.

 

It still does not take away from the points I made though. They still seem to have been shoddy in the extreme with your case and that of others.

[pompeyfaith]

does a junior have to wear a wig because she did not i will claify those other points 4 u this evening as i cant get to my pc at the moment

[lilly white]

pf this is very interesting.soothy meldrum welcome to cag