Link Claim Forms -MBNA debts

[Prudence]

Thanks again Andy, my "application form/agreement" was from1998. I am beginning to feel overwhelmed by this.

[Prudence]

I also think that the PPI amount with compound interest should have amounted to far more than the amount they paid me as it went back more than ten years! (yes they refunded me about £800).

[AndyOrch]

Well if the paperwork they are relying on is from 1998 I am pretty sure that it will be unenforcible.Have you actually posted it to your thread anywhere?

I will dig out a recent defence ( straight forward holding defence and Part 20 Counter Claim) for you to get an idea what is involved drafting form and content.

 

Regards

 

Andy

[AndyOrch]

http://www.consumeractiongroup.co.uk/forum/showthread.php?344334-Court-form-arrived-help/page3

 

Post 52

[Prudence]

Many thanks. The app form is attached to my first post (and the terms & conditions printed on the reverse are on my #10.

[AndyOrch]

Their problem is proving that is the back and not separate.All credit agreements from that date must have the perscribed terms within the 4 corners and on the same page as the signatory area.I see no " see over leaf "

 

Andy

[Prudence]

I will try and put together my Defence document using the example you have sent me, over the next few days. If you wouldn't mind having a look at it for me when I've finished?

Can't thank you enough for your help here Andy We have spent the last ten years working to clean up our credit files and clawing our way back, don't say it's going to be all blown away with this.

[AndyOrch]

Your very welcome Prudence lets hope we can get a decent outcome for you in this matter.Post up your final draft when its complete.

 

Regards

 

Andy

[Ricardino]

Hi Pru

There is, as has been stated here, every chance that a DJ will allow presentation of an agreement which is enforceable, so be careful going down that route.

There looks like more mileage in your counterclaim for charges as you are supposed to be placed in the position you would have been had

[Ricardino]

Sorry, had there been no PPI added to the account. So each over limit and late fee is recoverable together with their interest charges on these figures, as well as the interest on the PPI.

If you can show you have been kept in financial hardship due to this then I'm sure a fair minded judge will ensure this is taken into

My only concern is that your counterclaim could push the matter to the fast track and their inflated costs schedule!

[Prudence]

Thank you Ricardino. I have done the charges calculation on the spreadsheet and it amounts to over £5800 (which is £1000 above their claim). Do I have anything to lose in writing to them to point this out ?

Sorry just want to clarify if I understand correctly, Andy said above that "All credit agreements from that date must have the perscribed terms within the 4 corners and on the same page as the signatory area" - the terms were not on the same page.

Also what do you mean show we have been in financial hardship due to this, and how? This cc ran from around 1998/2001 when we ran into great financial difficulties after a failed business.

I really appreciate your input,many thanks, Pru.

[Prudence]

Hi, I cant sleep and would really appeciate some help with questions going round my head.

 

I did the spreadsheet to calculate the late charges etc plus compound interest which amounted to around £5800. Should I be sending this spreadsheet and letter to claim this amount to Link (or mbna?)

They will also then see the scale of the situation, ie that it amounts to more than £1k over their claim?

 

Or indeed would it be worthwhile sending a letter to link to highlight this (that is if I need to send the claim for charges direct to mbna)?

 

Another point is how can link ask for a sum they cannot justify? ie when they (link) sent me the SAR last year they could only basically send me a list of actions since they had the account in their hands. They have issued the claim yet have not supplied any documents as regards a breakdown of the amount?

 

Sorry to be a pest but want to be as well armed as possible.

Many thanks

[Ricardino]

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

[Ricardino]

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

[AndyOrch]

Good points made there Pru by Ricardino.

 

But never the less as said with an agreement from that age the T&Cs can not be separate (even if you state you agree to them) hence the loop hole that as now been rectified.

 

Regards

 

Andy

[Ricardino]

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

[AndyOrch]

Hi Ricardino

 

Carey is post 2007 and not retrospective.

 

(1) As described, it is hard to see the form and attached terms as anything other than one document. It is not suggested that there were separate page numbers on the terms attached but if there were, on these assumed facts, it would make no difference;

(2) The signature page itself makes clear that it is incomplete as a document and needs something else because it has no terms on it at all and makes specific reference to the terms "attached"; it only makes sense if something else goes with it; equally pp 198-201 need something to go with them, not least a place for the applicant's details and signature;

(3) The signature page refers to a credit agreement regulated by the Act and so makes clear that it is the first page of an agreement for which there must be other pages;

(4) The signature page and terms are presented to the debtor as a package;

(5) This would satisfy the notion that the Prescribed Terms can be identified within the "four corners of the agreement" - see Hurstanger v Wilson [2007] 1 WLR 2351 per Tuckey LJ at para. 11.

 

 

Read more at: CAREY v HSBC

 

Regards

 

Andy

[Ricardino]

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.

[AndyOrch]

Dont mix your reconstituted with prescribed form and layout ( Harrison>Carey) Reconstituted is with regards to the supply and giving of information Section 77/78/79 not enforcement as with Carey.

 

Pre 2007 the T&Cs must be within the signature area or otherwise known as the " 4 Corners " or in the key financial information or stipulated by number or connection or " see Overleaf " The Draftsman of the CCA1974 was quite specific what constituted an enforcible agreement.

 

Andy

[Prudence]

Ric & Andy thank you very much. At work at present (and very tired!!) but will look at all this tonight. Many many thanks guys, Pru

[Prudence]

Hi Andy and Ric

First chance I've had to get online and have a look at this. I am itching to get it all together now so I am trying to gather any info / help I can so that I can get down to attempting the Defence Document etc at the weekend. I would be so grateful for your continued support with this if you are around.

 

Ric - re Quote "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."

 

I used 24.9 as recommended by IMS but have looked through mbna's SAR documents and found the interest rate of 23.9% mentioned in the "Credit Card Agreement" document they included. Is this OK to use? If so, on recalculating, I still get over £5300 (which is about £1000 more than their claim) and no I have not added 8% on the top - should I definitely do this?

 

Would be grateful for answers on below:

"I did the spreadsheet to calculate the late charges etc plus compound interest which amounted to around £5800. Should I be sending this spreadsheet and letter to claim this amount to Link (or MBNA?)

They will also then see the scale of the situation, ie that it amounts to more than £1k over their claim?

 

Or indeed would it be worthwhile sending a letter to link to highlight this (that is if I need to send the claim for charges direct to mbna)?

 

Another point is how can link ask for a sum they cannot justify? ie when they (link) sent me the SAR last year they could only basically send me a list of actions since they had the account in their hands. They have issued the claim yet have not supplied any documents as regards a Breakdown of the amount?"

 

Lastly, I am getting very confused over the application form/contract/terms and conditions issues you have discussed. I am going to have to print out all your discussions and study it over the next few days to try and get my head round it! At this stage, I still don't know whether I should be mentioning the app form/contract/terms and conditions issues or not?

 

Thanks for your continued putting up with me, Pru

[Prudence]

Forgot to mention, the charges I calculated were "Over Limit Fee" and "Late Charge".

Also strangely there was a whole year missed out of charges on their statement which I found strange.

[Ricardino]

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

Edited May 4, 2012 by citizenB
spacing for easier reading

[Prudence]

Thank you Ric, I'll reply best I can below:

 

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? Yes you are right it says 19.9% (under the 'Financial and Related Conditions' that they allege came with the app form) under a heading "Cash Advances / Retail Transaction" I think as it is blurred. But on the separate 6 page Credit Card Agreement mbna sent me with my SAR, it says "Your Annual Percentage Rate is 23.9% APR (variable)" - which rate do I use?

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. Could anyone confirm that the CAG calculator spreadhseets are acceptable?

 

 

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. Excuse ignorance what is SJ (I've seen Summary Judgment used a lot but I don't know what it means! Do you mean mbna weren't allowed to go back more than 6 years - therefore in my case couldn't go back to any earlier than 2006? I'm sure I'm not understanding that bit correctly!

 

 

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. Can anyone please advise, I'm confused!

 

Would like to know myself really. Have you had a notice of assignment from Link? No, nor did one arrive in the SAR requests (neither from Link or mbna).

 

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? We did bank the ppi payment, did not reply with any letter to say it was accepted as full and final settlement of the dispute. I did not calculate the ppi payments on the compound interest spreadsheet though. They paid the (rough figures) ppi premiums £450 total interest assoc with premiums £70 plus 8% interest.

Sorry if you have related these answers already. No problem, thank you very very much for your time.

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? No definitely wasn't under limit, I don't know why a year is missed out but don't know/can't remember much else about it so better leave that..I know we went to CAB but remember these were the only people who refused to freeze interest, whether they agreed to not make these late charges, can't remember.

 

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. When/where do I ask for it to be transferred, on the Defence?

Ric

 

**Can anyone please advise if I should send the Spreadsheet and Claim Letter now to mbna or link for the charges?

[Ricardino]

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