Miss Muppet v. MBNA ***WON WITH COSTS ***

[miss muppet]

Hi everyone, just thought I'd tell you the good news. Have just returned from a marathon session at the court re MBNA's application for summary judgement. I haven't posted a thread on this before because my case followed Staying Calm's very closely i.e. no properly executed and signed agreement. Optima Legal/MBNA sent a barrister to appear and of course Rankine was used. Points brought up as well were the Default Notice, timings and the fact that interest had been added during the dispute, the Barrister tried to deny this but I was able to refer to the statements to show that it had been added. Also pointed out that in both the "copy agreements" sent by MBNA there was no clause 3 that I had breached. Judge commented on Rankine saying that it had no bearing on this case as this case is a triable case because of the absence of a signed agreement. The Judge reduced my costs by £100 as some of the expenses were from before the case tried to-day, their Barrister was trying to oppose this and said that I had not sent in the costs previously whereas Optima Legal had done. I told the judge that I had only received their costs yesterday which amounted to over a £1000 and he said he had only received them yesterday as well and that the order for the application hearing did not require scheduled costs to be sent in, they have to pay up in 14 days.

Thank very much to PT, Surfaceagent and all the others who I have shamelessly cribbed from. Can you move my thread to the success forum!:-D Will be donating as soon as they pay up!

[42man]

Just FAB news MM....!!! really pleased for you....

[Alphageek]

Fantastic Miss Muppet

[empowered]

Oh well done! Restons are on our backs for MBNA but we have exactly the same scenario as you - unenforceable agreement, the mystery clause 3 which does not appear, charges and totally useless DN due to dates being wrong. No claim issued yet... but we are waiting;)

[I've got no money]

That is excellent news - as they've lost their Summary Judgment application - where are you up to in general terms of the case

 

I think that if we can really hammer them on costs they might think twice - of course its' not just your costs but also the fact they have to pay their own

[WelshMam2009]

Fabulous news Miss Muppet...inspiration to us all to carry on fighting these highly sophisticated numpties!!

[miss muppet]

Thank you all dear friends, will post a bit more info tomorrow when I am less tired.

[Docman]

Brill, MM. Pity about the reduced costs.

[GamekeeperToPoacher]

I now look forwad to dealing with MBNA with some considerable pleasure

 

GK

[miss muppet]

Hi again, Yes Docman I'm not sure why he did that but hey I'm happy with £200. I wondered afterwards whether he thought I'd been to court already as they had been ordered to reply to my defence (Aug 2008)which they did on 11th December 2008. The Judge was extremely thorough - asking the Barrister questions on my Defence paragraph by paragraph, making sure that she knew the case came under CCA 1974 and not the 2006 amendment and picking her up very early on by asking whether MBNA had a signed application form and then later the signed agreement with them in court. I had of course dropped myself in it as one of my exhibits was a letter to Trading Standards stating that I had opened an account in 1998 and he asked me if I had signed an agreement, I replied that I couldn't remember and that MBNA say the account was opened in 1999 whereas I had thought it was the former. Then he asked me if I had a copy of the agreement to which I replied No! They also had the evidence of my raising court action in 2005 to reclaim penalty charges and he said surely I would have to admit that I knew that there had been an association between myself and the company and I said that it was true that I had reclaimed penalty charges when I got into trouble due to my illness, he then kindly asked me what I had been suffering from and I said Cancer and he said "but you're in remission now" and I said "Yes, Sir, thank you very much" but I said that at that stage I did not know my rights under The Consumer Credit Act.

 

The MBNA Barrister kept waffling on about there being no credit agreement didn't affect my liability to payment as I had had statements every month stating that if I didn't make the minimum payment etc, he asked her what the minimum payment I had been making before the CCA request was and she understated this so I picked her up on that one.

 

The Judge didn't say much about the dates on the default notice but I think picked up on my point about their misquoting the account number. Their excuse for this was that it had been charged off when it reached a state of default. I failed to point out altho' it was in my notes which I gave a copy of to the Judge that they had given a different explanation to the ICO saying that it was due to a system update in 2006. They sent out three copies of the default notice after the case started with one day's difference to the original which left under the prescribed limit to comply. I pointed out that they were prohibited from enforcement as the account had still been in dispute and in breach of their obligation to deliver a true copy under Section 78(1) of the Act, I said that the default notice was a step taken to enforce the agreement and a default notice is effectively a termination notice with notice i.e. "if you don't pay X by X we will terminate the agreement" (thanks to Pt).

 

With regard to Rankine I quoted the bit about the Rankine decision is a decision of HHJ Simon Brown QC sitting with permission as a Judge of the Queen's Bench Division. The QBD sits with appellate jurisdicition over the County Court in small claims and fast track cases only and its decisions do not create binding precedent but are merely persuasive where the reasoning behind the one decision (the ration decendi) may properly be applied to reasoning in another.

 

Altho I was quaking in my boots during all this, he gave me several chances to add anything else and one of the things I said was that I would have liked to cross-examine the witness regarding her statement that the copy the bank had produced was a true copy i.e. what qualification does this witness have to say that the pro forma would have been the one signed. As I understand it, this agreement is an Abbey one, was she exmployed by Abbey in Feb 1999 and in the department that dealt with the processing of this type of agreement at this time? The witness is unable to say that it was signed, only that it would have been . How is she so certain. Did she see the agreement bearing my signature and so on. There's plenty of info on all this on the site but just wanted to give you all an idea of what things could be like. At the end in his summing up, he mentioned the above para saying that I would have liked to cross examine the witness who was a different person author of the witness statement as opposed to the Barrister present. Oh, he also asked me during the hearing if I accepted their statement that they didn't have to attach the copy of the agreement as it had been issued thru MCOL and I said Yes, but too terrified to add that they had been given plenty of chances to supply the agreement before they raised they claim but didn't.

 

I also found the info supplied by my local Trading Standards very useful providing the Judge with a copy regarding Consumer Protection from Unfair Trading Regulations 2008 i.e. Reg 5(5)(d) states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include ' the execution of the product'. Telling a consumer that he signed such an agreement is alsoi a misleading statement about his rights and the risks he might face as covered by Reg 5(4)(k) of the CPRS It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it. Quote from Susan Edwards, Head of Credit Investigations and Enforcement, Office of Fair Trading.

 

By the way I only provided the Judge with a copy of my notes and he then had to get a copy for the Barrister - another point to bear in mind.

 

The Barrister told me later that it was her first case where the defendant had turned up, she obviously hadn't met a Cagger before but I'm hopeful she will again in the very near future!!

 

With regard to the question what happens next. Altho the Barrister in opposing my schedule of costs implied that there could be further hearings I am hopeful there won't be as if their schedule of costs is representative of the true cost, once they have paid my costs they will be approaching the amount I allegedly owed! Cheers me dears and I hope I haven't bored you all to death. I will be watching how you all get on with interest:)

[I've got no money]

In terms of costs - they won't appeal a £200 costs order

[Alphageek]

Nice report MM, thanks and well done again!

[AA99]

Excellent news MM ! You give us inspiration !

[joemay]

Congratulation:D I'm new to the site and have CCA'd MBNA. Could you please post your original thread as i'm sure I will learn a lot from it. Thanks

[JGJ]

CONGRATULATIONS!!

 

Not such a muppett now

 

"EXEMPLO DUCEMUS"

[miss muppet]

Hi again, Thanks JGJ - I think - I understood the first bit but the second?

Joe, bless you, there are far more skillful and experienced people on the site than me, as I said at the beginning I shadowed Staying Calm, you'll find that on the legal sucesses bit and also Viano a few pages in on the same bit. You're in for a long struggle probably, MBNA are the very devil to get any info out of but don't despair, plenty of people on here ready and willing to help!

[fairbyblue]

Well done MM. Pleased for you.

[slick132]

Hi Miss Muppet,

 

Well done - you clearly fought your corner very well.

 

You were also lucky enough to have a judge prepared to listen to you, even though you were a Litgant In Person.

 

[miss muppet]

Thanks again - yes Slick, you're right about the Judge, the usher had told me he was a nice man prior to the hearing, he certainly had a twinkle in his eye when he questioned me about reclaiming the penalty charges, probably thought lucky person getting those refunded beforethe Banks wiggled out of their responsiblities!

[underdog13]

Congratulations, Miss Muppet:)

 

If only all judges were like yours....

 

Well done on fighting your corner so brilliantly against a barrister.

[ScarletPimpernel]

Moved to DCA successes, and congratulations!

[patrickq1]

very well done miss muppet you've shown tremendous courage and along the way helped a lot of others on here thank you mm

patrickq1