MBNA and Optima (Claim form from Northampton )

[The Mould]

I received another letter last week (5 days after their stated posting date but I’m used to that) with some interesting information regarding telephone conversations between myself and MBNA.

They apologise for getting a date about a conversation I had with them wrong by a year (24 Feb 2011 not 2010). They then go on to state that that conversation never happened and that it was actually a date that they inputted some data about me into the computer to submit my income and expenditure details! I'm not certain of the exact date in February when the conversation took place but presumed it was the 23rd as this was the date they took the 1st payment. They also deny that the last conversation I had was with Rowan (the initial guy that offered me a 33% get out) - which is possible though I did call MBNA on a number that he said was his. They state that they have no recordings of any of the conversations made but that the people that I spoke to are " willing to provide statements to support the above assertions if necessary."

 

They've confirmed that the debt balance is the figure that I had calculated, not their stated higher figure.

 

In relation to my point that I do not agree with the costs that they have added because I have never broken any agreement they then go on with:

"The costs estimates provided in our previous correspondence were in relation to our estimated costs in the event you a) settled the matter by way of Tomlin Order and b) the amount we will request the court summarily assess if an application for summary judgment is necessary.

As per our previous correspondence, you will note the claim is currently stayed and in the interests of saving costs, we invite you to withdraw your defence or in the alternative to respond to our without prejudice correspondence to exhaust settlement options.

In the event you are not agreeable to the same or we do not hear from you within 14 days of this letter we are instructed to proceed with litigation action.

To that end, if we do not hear from you by 4 pm on 6 May 2011, we are instructed to proceed with the Claim and make an application to a) lift the stay on proceedings and b) request summary judgment"

I'm thinking of just replying with my offer to continue the £141 per month payments again. Does anyone have any thoughts on this?? (thank in advance)

 

Hello Gethereal

 

If the claimant intends to rely upon witnesses in relation to "What was said" during the telephone call that concluded with a new contract being formed between you two parties, then the evidence given by his witnesses will be HEARSAY as he admits to not having the transcript of the conversation.

 

The claimant has been saying for a few months that he is going to make an application to lift the stay and seek Summary Judgment against you.

 

You were never at fault in this matter, the claimant's own actions gave rise to his cause of action, he abandoned the new contract, you did not.

 

Have a read of - COLLIER V. P & M J WRIGHT (HOLDINGS) LTD [2007] EWCA Civ 1329 in respect of legally binding oral contracts and promissory estopple.

 

If you want to offer to carry on with the payments as per the terms of the new contract, then that is your decision, however, the claimant will then be entitled to his costs as you will be effectively accepting responsibility for his cause of action.

 

Good luck and I am bowing out.

 

Kind regards

 

The Mould

[Gthereal]

The Mould - sorry you're bowing out. Your advice so far has been greatly appreciated. If I've annoyed you with that last sentence I do apologise. I've annoyed myself by considering this option too but am not confident a court appearance would not lead to me either having to pay the full amount plus costs or add a CCJ to my two defaults which are already 18 months ago. I want to be able to move house once the defaults are off the credit history and a CCJ would stop this for quite a few more years.

 

I did read up what I could find on promissory estopple but I wasn't confident in being able to prove that my lesser payment amounted to the same thing as in the Collier vs Wright case. In that case the wording stated that the creditor had accepted "a lesser sum in satisfaction of the whole debt":

 

"Where there has been a true accord, under which the creditor voluntarily agrees to accept a lesser sum in satisfaction, and the debtor acts upon that accord by paying the lesser sum and the creditor accepts it, then it is inequitable for the creditor afterwards to insist on the balance."

"Arden LJ's approach simply requires the debtor to show that there was offer, acceptance and performance of the promise to accept part payment of the debt as discharge of the whole debt and "it will of itself be inequitable" for the creditor to then resile from his promise."

I can't see anything in my case that the £141 per month would not have run until the debt was paid off fully so MBNA didn't accept a lesser sum, just allowed me to pay the same sum over a more manageable period. They did then stop taking the monthly payments, which in itself must be some breach of contract but I wouldn't be confident in the estopple argument.

[Gthereal]

The Mould - sorry you're bowing out. Your advice so far has been greatly appreciated. If I've annoyed you with that last sentence I do apologise. I've annoyed myself by considering this option too but am not confident a court appearance would not lead to me either having to pay the full amount plus costs or add a CCJ to my two defaults which are already 18 months ago. I want to be able to move house once the defaults are off the credit history and a CCJ would stop this for a few more years.

 

I did read up what I could find on promissory estopple but I wasn't confident in being able to prove that my lesser payment amounted to the same thing as in the Collier vs Wright case. In that case the wording stated that the creditor had accepted "a lesser sum in satisfaction of the whole debt":

 

"Where there has been a true accord, under which the creditor voluntarily agrees to accept a lesser sum in satisfaction, and the debtor acts upon that accord by paying the lesser sum and the creditor accepts it, then it is inequitable for the creditor afterwards to insist on the balance."

"Arden LJ's approach simply requires the debtor to show that there was offer, acceptance and performance of the promise to accept part payment of the debt as discharge of the whole debt and "it will of itself be inequitable" for the creditor to then resile from his promise."

 

 

I can't see anything in my case that the £141 per month would not have run until the debt was paid off fully so MBNA didn't accept a lesser sum, just allowed me to pay the same sum over a more manageable period. They did then stop taking the monthly payments, which in itself must be some breach of contract but I wouldn't be confident in the estopple argument.

[The Mould]

The Mould - sorry you're bowing out. Your advice so far has been greatly appreciated. If I've annoyed you with that last sentence I do apologise. I've annoyed myself by considering this option too but am not confident a court appearance would not lead to me either having to pay the full amount plus costs or add a CCJ to my two defaults which are already 18 months ago. I want to be able to move house once the defaults are off the credit history and a CCJ would stop this for a few more years.

 

I did read up what I could find on promissory estopple but I wasn't confident in being able to prove that my lesser payment amounted to the same thing as in the Collier vs Wright case. In that case the wording stated that the creditor had accepted "a lesser sum in satisfaction of the whole debt":

 

"Where there has been a true accord, under which the creditor voluntarily agrees to accept a lesser sum in satisfaction, and the debtor acts upon that accord by paying the lesser sum and the creditor accepts it, then it is inequitable for the creditor afterwards to insist on the balance."

"Arden LJ's approach simply requires the debtor to show that there was offer, acceptance and performance of the promise to accept part payment of the debt as discharge of the whole debt and "it will of itself be inequitable" for the creditor to then resile from his promise."

 

 

I can't see anything in my case that the £141 per month would not have run until the debt was paid off fully so MBNA didn't accept a lesser sum, just allowed me to pay the same sum over a more manageable period. They did then stop taking the monthly payments, which in itself must be some breach of contract but I wouldn't be confident in the estopple argument.

 

Gethereal

 

With respect, this issue(s) in your case are nothing to do with Full and Final Settlement. The principles of the doctrine promissory estopple apply to your case (based upon what you have stated here in your thread).

 

It is of course entirely your decision on what route you take in this matter, I simply do not see any point posting advice, you defend based upon that advice and then act in a manner that is wholly opposite, there was no point in defending this action by the claimant if all along you accept responsibility for his cause of action against you.

 

Who is at fault here for the cause of action complained of, you or the creditor? This is a fundamental issue to your case. The creditor abandoned the new contact, did he not? He gave no notice to you indicating his intentions to abandon said contract, the original credit agreement was superseded by the new contract, who broke the terms of the new contract, you or the creditor?

 

I am not annoyed Gethereal, you must make the decision that you feel is the best one for you, I am bowing out as there is no point advising you that you have a defence against this action if you are now saying that you did provide the grounds for the creditor to sue you.

 

Good luck with whatever course you decide to take.

 

Kind regards

 

The Mould

[Gthereal]

The Mould

I don't believe the creditor has any grounds to sue. We made an agreement for me to make a reduced monthly payment with no discussed time restriction and MBNA stopped this after 5 months then accused me of breaking the agreement. They have also lied to me on the phone, attempted to intimidate and generally given me the runaround over several months. I'm loathe to give them a single penny but don't want to risk a court appearance unless I'm confident in what I can prove.

 

I'm coming from a layman point of view so excuse my ignorance but you advised me to read up on case law relating to the Collier vs Wright case and this does seem to be based on an agreed payment of a lesser sum in satisfaction of the whole debt. Wouldn't the "whole debt" thing differentiate this case from the collier case?

[The Mould]

The Mould

I don't believe the creditor has any grounds to sue. We made an agreement for me to make a reduced monthly payment with no discussed time restriction and MBNA stopped this after 5 months then accused me of breaking the agreement. They have also lied to me on the phone, attempted to intimidate and generally given me the runaround over several months. I'm loathe to give them a single penny but don't want to risk a court appearance unless I'm confident in what I can prove.

 

I'm coming from a layman point of view so excuse my ignorance but you advised me to read up on case law relating to the Collier vs Wright case and this does seem to be based on an agreed payment of a lesser sum in satisfaction of the whole debt. Wouldn't the "whole debt" thing differentiate this case from the collier case?

 

Gethereal

The principles established under the doctrine of promissory estopple do indeed apply to your defence.

The creditor gave instruction to you stating what act he required you to perform until the debt was paid, you performed said act and without any warning or any reasonable notice, the creditor abandoned the new agreement and reverted to his strict rights under the original agreement, this said action of the creditor is inequitable at law.

You have evidence of your five payments made as per said new agreement; this in itself is proof enough to show the court that there must have been variation/modification or substitution of the original agreement. While you were honouring the terms of said new agreement, did the creditor send any correspondence to you asking why are your payments lesser than that to which you are obligated to pay under the terms of the original agreement? I think you will find that the answer is unequivocally, NO, Why? Because the creditor held full knowledge of his consent to said new contract, and so he had no reason to send you any notice stating that you were in arrears and that you need to contact him to discuss the matter.

You can argue your defence successfully Gethereal, don’t worry about speaking your defence in legal parlance, simply tell it how it is, in plain and clear English.

I hope that will help you further in this matter.

Kind regards

The Mould

[Gthereal]

Thanks.

The whole prospect of a court appearance is intimidating. It looks like Optima are intent on this course of action though. Should I respond to their letter or just wait for their next move?

[The Mould]

Thanks.

The whole prospect of a court appearance is intimidating. It looks like Optima are intent on this course of action though. Should I respond to their letter or just wait for their next move?

 

Gethereal

 

Intimidation is the key word and a big favorite of your opponent of course.

 

If I was in your position, I would wait for the claimant and when he calls, I would meet him on the battlefield. You are not obligated to do what I would do and so, you should make your own decision after a very long think about this matter and the series of events that have brought you to this point in your life.

 

Do you have evidence of your said agreed reduced payments? Did the claimant send correspondence to you after said agreed new contract, informing you to contact him as your account was in arrears? What was your normal monthly payment to the account before said agreed reduced payments?

 

You do, I believe, have enough evidence to substantiate your defence.

 

Kind regards

 

The Mould