series3 v MBNA/Optima

[Series3]

lol...just saved a stamp...

off to the post office now.

thanks Andy

 

series3

 

 

e-mail?

just posted it.

Edited October 30, 2012 by Series3
didn't see e-mail in answer

[Series3]

they have asked for a copy of my DN and samples of envelopes proving second class post.

 

I am going to ask for items 2, 9, 10, 11 and 12, see what they send

 

series3

[AndyOrch]

I thought they might as it may prove devastating to their claim:wink:

 

Andy

[Series3]

just bringing this into the light again.

been doing alot of reading over the last month.

will be updating later with WS received from their sols.

then will have to prep my WS.

this will be in court on 11 Jan so not too much time.

 

series3

[Series3]

this is the WS from Optima, well Diane Powell

last time at court Mz Powells WS was used as back up to Optima WS

will I be getting another one from them or build mine around this one?

[Old Cogger]

Once again Ms Powell states UK Mail 2 days they have been pulled to pieces on that one in Court, UK 4 days at least, read attached that is for the default part of her WS.

PRACTICE DIRECTION MASTER OF THE ROLLS BICKFORD-SMITH POSTING TIMES.doc

[Series3]

I wish that mentioned UK mail....

I know about the last mile with Royal Mail.

I will scan and post their contract..just confusing me thinks.

Also I will put my last WS up and tweak it to suit, answering her points.

thanks for looking.

 

Also cheers @ Andy

[Old Cogger]

uk mail = 4 DAYS.

 

Go to UK Mail site and drift thru to delivery times?

[dx100uk]

UK mail is 5 days into Royal Mail

 

if its got a big S on it then thats 2nd class so could take 4 days under royal mail.

 

9 days in total

 

i think harrison case outlines this

 

dx

[Series3]

thanks.

I have downloaded quite a few threads.

So plenty to read over again over the next day or so..

 

I just got a call from Fredrickson lol. Do they never rest?

It's for some other thing . He's easy to see off.

Hope you all have a great Christmas.

 

Series3

[citizenB]

Point 2 in the Witnesss statement - interesting that she claims she is familiar with the forms of credit card agreements used by the Claimant. Even the MBNA Department head in Harrison v Link claimed there was no data base of their documents until 2009 and was unable to truthfully claim the authenticity of the many documents they kept trying to claim were signed by Harrison !!

[citizenB]

Point 30 - They claim to attach a "true copy" of the default notice.

 

1: They do not keep copies of Default Notices - they have a template and variables.

 

Point 32 - They mention reconstituted copy.

 

1: make up their minds it is either a "true copy" or reconstituted ?

 

Whilst the 15th December 2009 was a Tuesday, it would almost certainly have been caught up in the start of the Christmas post build up.

 

No way would it have arrived by the 17th December especially as UK Mail is only a secondary postal system relying on the RM for the "final mile". It is almost certain that MBNA would have used UK Mails "S" second class service which would take minimum 5 - 7 days to arrive.

[citizenB]

Is there a clause 8d on your agreement ?

[Series3]

I saved a thread/post where someone had posted something from Harrisons WS.

It said something about the "S" on the envelope meaning nothing and his DN came in a different envelope altogether.

I'll look for it again and post it up.

Does anyone have a copy of the harrison WS?

[citizenB]

Not the Witness statement no, just the judgment.

 

Harrison v Link Financial Ltd ALL ER (2011).pdf

[Series3]

hope this works.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?296987-Link-mbna-claim!-***settled***&p=3683948&viewfull=1#post3683948

 

series3

 

lol.

you posted it citizenB

Edited December 27, 2012 by Series3

[citizenB]

Yes, that information was posted by me for DD.. and of course is still accurate

[Series3]

why does everyone keep saying the "S" means second class? This is confusing.

I don't think anyone should use that as a point in their WS.

MBNA say it,s business class guaranteed 2 days and give a nice little flow chart to prove it.

I need to do more reading.

I'll be back later and post my old WS and some points against Miss Powells.

thanks again for looking.

[citizenB]

Apparently it has been used in many Witness statements, successfully - however if you read posts 93, 94 and 95 in the link you found above, it should pretty much give you the ammunition to sort out any pretty flow chart the claimant provides !!

 

Especially the UK Mail attachments.

[Series3]

thanks...

[DonkeyB]

why does everyone keep saying the "S" means second class? This is confusing.

I don't think anyone should use that as a point in their WS.

MBNA say it,s business class guaranteed 2 days and give a nice little flow chart to prove it.

I need to do more reading.

I'll be back later and post my old WS and some points against Miss Powells.

thanks again for looking.

 

I could produce a flow chart showing that a dog is a cat. Doesn’t mean it’s true or accurate.

 

It’s best to work with facts.

 

This MBNA ‘two day delivery’ rubbish was totally demolished in Harrison v Link Financial.

 

http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

 

Paras 54 and 55 are key, but should be read in context.

 

 

54. On 3 October 2008 MBNA sent a default notice (TB4/1502). Paragraph 12 of Mrs Worden's statement dated 26 July 2010 reads as follows:

Exhibited to this Witness Statement at "NW3" is a copy of the default notice which was served by MBNA on the Claimant ("the Default Notice"). The Default Notice was dated 3 October 2008 and, in accordance with MBNA's standard procedure was despatched to the Claimant on 3 October 2008 by way of UK Mail's Business Class service which guarantees delivery within two days of despatch, including Saturdays. It is not, and was not in October 2008, the standard practice of MBNA to send default notices to customers by second class post. There is no reason why the Default Notice sent to the Claimant in this case would have been sent by second class post contrary to MBNA's standard procedures.

 

55. Investigation by the Claimant who knows about such things revealed that the notice was sent by second class post. Mrs Worden's own investigations revealed that it was "possible" that this was so. Her manner indicated that this was an elegant way of conceding the point as in my view she had to. Thus subsequent investigation contradicted a hitherto firmly held position of the Defendant that the notice had gone by a suitable post and was served in time. It was not. It was issued and sent by second class post on 3 October 2008 arriving (as was to be expected) on 9 October 2008 and was stated to expire on 21 October 2008. Given the date of delivery, the expiry date should have been 23 October 2008. The notice was bad.

[Series3]

sorry for the long post.

Have to nip out but will be back to edit in my replies to the points in Mz Powells WS

 

Typed in so can be edited easier.

 

WS of D Powell

 

3. The Claimant submits that the Defendant has been provided with copies of the documentation, which a creditor has to provide under a Section 78(1) request. However, for sake of clarity the Claimants solicitors have re-sent to the Defendant on 23 June 2010, copies of the following documents, a copy of the Claimants solicitors letter is exhibited at D”P1”

Credit Agreement:

Original Terms and conditions

Current Terms and conditions; and

Statement of account

 

4. I can confirm that the Defendants Section 78(1) request has been fully complied with.

The Credit Agreement

 

5. On the 28 April, the Defendant completed an application form for a MBNA Credit Card. The Defendant was also provided with a copy of the Terms and Conditions.

I never received any terms and conditions at the time. The application was filled in outside Twickers just before the kick off. I was given 2 free hats if I would fill one in. I thought why not. I was not given the terms and conditions, I just wanted to get into the match, Didn't want a card either but for hats I filled in the form.

6. Attached to this witness statement at “DP2” is a copy of the credit agreement, which is maintained by the Claimant on its microfiche records. The signature of a duly authorised officer of the Claimant was automatically applied to the credit agreement by the Claimant and can be seen at the top left hand side of the Credit Agreement

Automaticly applied?

7. The Credit Agreement exhibited at “DP2” has been executed by both the Defendant and the Claimant in accordance with the requirements under section 61 of the Consumer Act 1974.

 

8. The Claimant who, in turn issued a Credit Card to the Defendant accepted the Agreement. In the premises, the Defendant’s offer to pay the minimum payment was accepted by the Claimant. The Claimant provided consideration by the provision of the services of a credit card.

 

9. The Claimant submits that the Terms and Conditions have been varied since the Agreement was entered into, these Terms and Conditions have already been disclosed by the Claimant in relation to these proceedings and a further copy are exhibited at “DP3”

 

Section 62

 

10. Due to the Defendant completing the application form at the Rugby Cup Final at Twickenham, which can be seen by the reference “MBNA Credit Card Choice – Rugby Cup Final, Twickenham” at the top left of the credit Agreement. The sales representative would have provided the Defendant with the terms and condition, which applied to his account for him to consider and to take with him. It can be seen from the top left of the Credit Agreement that the Defendant stated he was over the age of 18 and he understood that he completed an application form for a credit card. A copy of the terms and conditions that would have been provided to the Defendants are exhibited at “DP4”

The Terms and Conditions they state are the ones that were with the application state the default charges are at £18. On none of my statements do I have a charge for £18. I have one for £25 that was early and some for £12 that were later. I doubt these are the ones that applied at the time I applied. Or why the £25 charge and none at £18.

11. The Credit Agreement exhibited at “DP2” above the box “Your right to cancel” states “I have received a copy of, and agree to be bound by the MBNA Credit Card terms and conditions and I understand that I will be responsible for paying any due balance due on my Credit Card Account.”

I know I signed but did not want to read or take a copy with me, I just wanted the hats and to get into the match. None were given, He was dealing with loads of people at the same time. All full of "would have" and could not be witness to what happened. Do they work on a commission to get the applications filled out?

12. I note from the Claimant’s computer systems that the Defendant did not contact the Claimant at any point throughout the duration of the Agreement to state that he failed to receive the terms and conditions.

 

13. The Claimant has a rigorous audit process in place to ensure that the Section 62 are provided to customers as it is required to do so by law.

Harrison Judge disagrees I think.

Section 63

 

14. I understand that he Claimant is required to provide a customer with a copy of the Agreement once both parties have executed it. By the way of an explanation, when the Claimant sends a customer a credit card, it is stuck to the terms and condition (card carrier), which enclosed the Section 63 terms and conditions and the credit card to the Defendant.

 

15. The terms and conditions would have been provided to the Defendant in the form of a separate booklet.

 

16. I fail to see how the Defendants asserts that he has failed to receive a copy of the associated terms and conditions. The Claimant instructs an external company to print off and collate card packs to send out to customers, the Claimant has stringent measures in place, which monitors, audits and assesses what documentation has been sent to a customer.

As above, Harrison.

 

17. If a card pack fails to contain all the documents, the original card pack is disregarded and a new one is produced. In addition the Claimant keeps records of all the items of post, which are sent out by its external provider on a daily basis and ensure that all their instructions are actioned.

 

18. I note from the Claimants computer systems that the Defendant did not contact the Claimant at any point throughout the duration of the Agreement to states that he failed to receive the terms and conditions or that he failed to receive his new MBNA credit card, when new ones were issued.

Never said I didn't get a card.

 

19. The claimant has a rigorous audit process in place to ensure that the Section 63 terms and conditions are provided to customers, as it is required to do so by law.

 

20. In light of the audit process in place and the numerous references to the terms and conditions throughout the documentation issued to the Defendant. The Claimant fails to see how the Defendant failed to receive the card carrier terms and conditions or the terms and conditions that were provided when the Defendant entered into the Credit Agreement.

System not as good as they thought.

The Prescribed Terms

 

21. The prescribed terms are clearly displayed in accordance with all of the form and content requirements of the Consumer Credit ( Agreements) Regulations 1983 9as amended) at the time of the credit card agreement is executed by the customer.

Now drops into "credit card agreement" not credit agreement.

It should have been headed "credit card agreement" but it is not.

22. The Agreements does comply with the conditions set out in sections 60 to 64 of the Consumers Credit Act 1974

 

23. Under Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, the Agreement must contain the following prescribed terms.

i) A term stating the credit limit or the manner in which it will be determined:

ii) A term stating the rate of interest or the manner in which it will be determined: and

iii) A term stating how the debt should be paid.

 

24. Clauses 1 of the Claimants terms and conditions states “we will from time to time choose your credit limit and notify you of this.”

 

25. Clauses 5 to 7 of the Claimants terms and conditions state the rate f interest and the manner in which it will be determined.

 

26. Clause 3 of the Claimants terms and conditions state how the debt should be paid.

 

27. The Claimant submits that the Agreement is enforceable under the Consumer Credit Act 1974.

 

28. The Agreement is sufficient to comply with paragraph 3 of schedule 6, in that it is a term stating the manner in which the credit limit will be determined, namely that it was at the Claimants discretion.

 

29. The Claimant avers that there was a physical link between the Agreement and the prescribed terms were printed on two sides of a single document

Were they really on the back or have they been reconstructed? the print code doesn't match. Are they just generic from about the same time?

Default Notice

 

30. The Claimant issued a Default Notice dated 15 December 2009 to the Defendant. The Default Notice afforded the Defendant the opportunity to remedy the breach and pay the sum of £167.92. The Defendant failed to remedy the breach, therefore the Claimant instructed Optima Legal to commence legal proceedings. Please find attached hereto-marled exhibit “DP5” a true copy of the Default Notice issued.

True copy? reconstructed more like.

31. The Claimant issued a Default Notice against the Defendant due to him being in arrears on his account, in accordance with the clause 8d of the Claimants terms and conditions which states “Unless you have a legal right to do so, you must not hold back a payment or refuse to pay anything you owe us because of a dispute between you (or your additional cardholder) and another person.” The Claimant submits that the Defendant breached the Agreement by withholding payment to the Claimant.

8d?

32. The Claimant has reconstituted a copy of the Default Notice for the purposes of the legal proceeding; the Claimant has reconstituted the Default Notice based on the information recorded on the Claimants internal system notes. Exhibited at “DP6” is a copy of the Claimants internal system notes, which shows that the Default Notice was issued and posted to the Defendant on 15 December 2009, and we like to draw your attention to the entry which states “ NOD 15/12/09 EXP 02/01/10”

They say issued and posted, this just says issued or printed off.

Now a reconstruction

 

33. The Claimant utilises UK Mail, which guarantees a two day delivery. The effective date of service for the Default Notice is therefore 17 December 2009. The final date provided by which the Defendant had to remedy the breach was 2 January 2010. The Defendant was therefore provided with sufficient time, and failed to make the requisite payment. I understand that the legal proceedings were not issued until 15 September 2010.

Last mile??

Also legal proceedings were 22 January 2010

34. I understand that the Defendant admitted at the Summary Judgment hearing that he received a copy of the Default Notice, and he conceded that he could not remember when he received the Default Notice. I exhibit a print out from the UK Mail website at “DP7” together with a copy of the contract between MBNA and UK Mail.

I said I couldn't remember Monday or Tuesday, could have been Saturday but am I right in thinking that Saturday does not count for days of service?

thanks for looking

 

series3

Edited December 30, 2012 by Series3
Adding in red

[Series3]

I'll scan and post the stuff they sent to support the postage later.

Also my old WS used at the SJ.

Just edited above to add the red bits.

 

series3

[citizenB]

I doubt very much indeed that the terms and conditions were present at the time of signing - the agent would have wanted to sign as many people as possible and would have gone into meltdown if everyone wanted to stand and read t&cs !

 

Aside from the fact this was a particularly profitable way of signing people up in that your attention would have been elsewhere.. eg.. getting into the game on time or as you say.. the free hats

 

Airports where people are waiting on departure / arrivals

 

Shopping centres where Mothers who just want to get into the sales. - I think there was a Judgment given in favour of the defendant where the lady signed to get shot of the agent, around 2009.. Lynn Thoreaux, was it ?

 

So again, another disingenuous statement from MBNA solicitors !!

[citizenB]

Lyn Thorius judgment.pdf

 

 

MBNA v Lyn Thorius