Link Claim Forms -MBNA debts

[Prudence]

Hi Andy, have a feeling you were enjoying the tennis like me today!

Thanks again you are a shining star

Pru

[AndyOrch]

I bet Murray didn't.

 

Now prepare your script and points to raise, your points their points your refutes etc..... DN section of the CCA1974 and the LOP ACT Statute Barred.If agreement can not be achieved at ADR then you will proceed so don't worry.

 

Regards

 

Andy

[Prudence]

Haha! but it didn't DAMPEN his enthusiasm at all!

Thank you, got it, will do, I'm ready for them!

Pru

[Prudence]

Thanks for all your help Andy, IMS and everyone.! Mediation failed. The other side siting HSBC v Brophy as a case that mirrors mine. What do you think? Do you know about this one?

Lots of work to do!!!! Trial in cpl months.

[AndyOrch]

Perhaps expand Pru for posters to see why?

 

Andy

[Prudence]

Yes of course Andy tho will have to look into it myself. First I was challenged on the Statute Barred aspect which of course cannot be claimed due to mbna paying out to me only last year. Then the Default Notice aspect saying that by law they weren't required to issue one where the whole balance is due. I of course came back to say that the full balance was in arrears and that is why MBNA sold it to them so if they bought a live account they would have to issue a DN to terminate it and enforce it.

They then came back with the HSBC/Brophy case saying it failed at appeal and was a standard credit agreement and the case mirrors mine so I will have to look into it.

Thanks Andy for all your help, you've been brilliant.

[Prudence]

By the way Andy, checked witht the Court Office and my application for fee remission re CC stands is accepted, my Counterclaim stands.

[AndyOrch]

Ok here is the case they refer to Pru:-

 

HSBC Bank Plc -v- Brophy - CA - 02-Feb-11 - Sedley, Moore-Bick, Sullivan LJJ (Bailii, [2011] EWCA Civ 67) - Consumer - Banking

The customer appealed against an order finding that his credit card agreement was binding upon him. Held: The appeal failed. His argument that the application form amounted only to an invitation to treat, and that the contract was one made by conduct only and therefore not compliant with the 1974 Act, failed. The form was an application for credit: "By signing the application form and returning it to the Bank Mr. Brophy applied for credit and offered to be bound by the terms and conditions set out in the form. The form itself made it clear that it contained a request for credit and that the applicant should not sign it unless he was willing to be bound. It cannot therefore be regarded as a mere invitation to treat on his part which might lead the Bank to make him a formal offer of credit. Nor, on the other hand, did it contain an agreement of any kind unless and until it was countersigned by the Bank. The Bank accepted Mr. Brophy's offer by counter-signing the form, at which point there came into being an executed agreement within the meaning of section 61 of the Act." Similarly, applying Hurstanger, the document contained the information required.

Statutes:

Consumer Credit Act 1974 s. 61

Cases Cited:

Hurstanger Ltd -v- Wilson 2006 ([2006] WL 4402848)

Wilson and Another -v- Hurstanger Ltd CA 4-4-2007 (Times 11-May-07, Bailii, [2007] EWCA Civ 299, [2007] 2 All ER (Comm) 1037, [2007] 1 WLR 2351, [2008] Bus LR 216, [2007] 4 All ER 1118)

Brophy -v- HFC Bank QBD 22-3-2010 (Bailii, [2010] EWHC 819 (QB))

[AndyOrch]

Here is the CAG thread :- http://www.consumeractiongroup.co.uk/forum/showthread.php?292722-Court-of-Appeal-Judgement-HSBC-v-Brophy-***LOST***

[Prudence]

Here is the CAG thread :- http://www.consumeractiongroup.co.uk/forum/showthread.php?292722-Court-of-Appeal-Judgement-HSBC-v-Brophy-***LOST***

 

Thanks Andy

It seems this case only refers to the app form/agreement but that's about the only similarity! It certainly doesn't MIRROR my case!

[AndyOrch]

Precisely smoke and mirrors Pru.

[Prudence]

Hi, while waiting for trial in a month, is this a good time to submit my spreadsheet for the late and over limit charges, which amounts to several thousands. And if so, am I correct in thinking it should now be sent to Link and not mbna (as Slink are taking me to Court)?

[AndyOrch]

Hi Pru

 

I know we have touched on this already but would that be an additional claim or an amended Counter Claim? Dont forget if you push it over 5K this then becomes FT.

 

Regards

 

Andy

[Prudence]

Thanks Andy. Yes, that's why I'm querying how to go about it. The late/OL charges will amount to around £5000. Excuse my ignorance once again(!) but when you say claim, do you mean Court Claim? In other words, couldn't I just send in my spreadsheet to Slink with the request? Or is it because I am involved in a court case with them, that it would have to be another Court matter for the late/OL charges? I'm confused!! Help please! Pru

[AndyOrch]

Ideally it would be simpler to add to CC with permission of the Court( I will get you the relevant CPR) otherwise yes it would involve a separate claim from yourself to Slink for the additional amount but be aware that if you do add it this will then become Fast Track and you will be open to risk of costs, so give it some consideration.

 

Link :- http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part20

 

Andy

[Prudence]

Thanks a lot Andy, tho still confused as to what to do.

[ims21]

Hi Pru

 

Responding to PM.

 

As Andy says, it would be a good idea to keep this out of the FT and in Small Claims. You can adjust the interest rate on the spreadsheet to bring the claim amount under the £5k limit.

[Prudence]

Many thanks IMS. I have now had a long and complicated response following my letter (which detailed the info in post 288 from you IMS) and attached the spreadsheet showing the calcs. Can I pm to you?

[ims21]

Best to post it in open forum Pru unless there is good reason for not doing so.

[Prudence]

Many thanks...

 

We must confirm that such is not an acceptable explanation as to how you have arrived at the sums in your CC.

 

Whilst we note your claim that the spreadsheet used is a pure compound interest calculator we have no way of verifying the accuracy of the same and have no faith within the same given there is no calculation of the daily rate and the only interest rate entered within the spreadsheet is the APR, which is a comparative rate and not such that should be utilised when it comes to actually calculating charging rates, be that annually, monthly or daily.

 

Further the element of compound interest sought (which is denied and averred to be statute barred) should be in line with that actually charged under the terms and conditions of hte Credit Agreement ie charged upon an amount daily but levied monthly, whereas your calculation appears to charge an unexplained an unqualified 'daily rate' exponentially against the number of days elapsed.

 

Shold you wish to pursue..... it is for you to qualify your calculatons..... would expect a complete explanation of your calculations and all rates utilised within your evdience.

 

Any help or guidance would be much appreciated!

[ims21]

Andy will advise of there is any more justification to do.

 

They are still trying to put you off with the SB bit but it has already been covered how that is dealt with.

 

In addition they bang on about rates of interest....you are claiming restitutional interest and are using Sempra metals as your case law.

 

I'll leave Andy to advise on the legals

[Prudence]

Thanks again IMS and sorry, thought I should address enquiries about the figures to you. I will wait for Andy to have a look at it. Kind regards, Pru

[ims21]

Yep, figures I'm happy to deal with but I think we have provided them with formulae an the workings and it appears that they choose not to use the basic principles of maths.

 

We now need Andy to comment on whether we have provided enough by way of strict proof of our workings and the legal side of this.

 

Happy to help if it involves more on the maths side.

 

ims

[Prudence]

If you are around Andy, would be very grateful for your views on the letter I have just received above.

Many thanks, Pru

[AndyOrch]

Hi Pru

 

If ims21 is happy with the calcs then there is very little further input I can advise on with regards to the point of the letter.I cant see why they even bother to wrote it if they then go onto to state "

which is denied and averred to be Statute barred " I mean why bother to query the figs then deny them? They are simply trying to get you to ditch your CC.

 

Regards

 

Andy