MBNA Charges - refused

[up2meears]

Thanks Ford

 

I knew once I'd seen they'd sent someone it would get its set aside.

 

Not getting hit with costs was a good thing. The judge was really nice, before we started he explained what would be happening, had his moment talking to the solicitor which was interesting to watch as she faffed around with papers and then got reminded that she didn't need to quote the CPR to him lol. Then he explained what happens next etc

 

Just need to finish getting stuff ready to go incase we go back to court and each bit of their defence which they're telling me to prove is looking more wobbly as I gather the evidence together.

 

Up2

[Guest]

if mike or noone looks in in time, give me a shout, will help if i can. when is yr next deadline? i presume you're now into mediation, were there any specific directions?

the court should send you the approp subsequent info/form. if not soon contact them.

[up2meears]

Thanks again Ford,

 

The judge said mediation is the next thing - waiting for the form to fill in, which I tried looking for online but couldn't find

 

Got until the end of May, at which point he said if no agreement is reached we can go back to court

 

Am about to settle down now and go through the court bundle guide - am bound to be back with questions

 

Up2

[Guest]

Thanks again Ford,

 

The judge said mediation is the next thing - waiting for the form to fill in, which I tried looking for online but couldn't find

 

 

 

Up2

 

afaik, if med was requested on aq/dq, (and seeing as it has been put back as before) then court will arrange and parties will then be contacted by the mediation service? in yr case small claims, maybe mediation by phone?

mike etc will no doubt clarify.

[Mike_hawk]

Hi Up2

 

Sorry, I leave my inbox bunged out as I don't really have time to respond to PM's. Unless there's something you really can't post its usually best discussed on your thread anyway just in case I miss anything obvious.

 

Regarding mediation, you should receive an N24 within the next couple of weeks which will have the contact details within. Whilst the court will always look to dispose of by ADR the DJ does appear to have made a point of this in your case and possibly doesn't want to see this back on his desk. Hopefully the other side has taken the hint and it's counsel will suggest it compromises.

 

It's defence is essentially twofold, limitation (which you should be able to overcome) and its attempt to reverse the burden of proof with regard to UTCCR... which you should also be able to overcome. Really not sure why it would want to progress the case other than because it can!

 

Did it's counsel remain in house or did you receive a change notice prior to hearing?

[up2meears]

Hi Up2

 

Sorry, I leave my inbox bunged out as I don't really have time to respond to PM's. Unless there's something you really can't post its usually best discussed on your thread anyway just in case I miss anything obvious. That's fair enough, I just wanted you to have a quick peek at the letter I had drafted to send regarding disclosure of its charges breakdown, although I'm not sure I really need it as the overlimit charges were added either because the PPI and it's interest tripped the balance over its limit or because they ignored my (and my third party advisers) repeated requests for cessation whilst I was struggling.

 

Regarding mediation, you should receive an N24 within the next couple of weeks which will have the contact details within. Whilst the court will always look to dispose of by ADR the DJ does appear to have made a point of this in your case and possibly doesn't want to see this back on his desk. Hopefully the other side has taken the hint and it's counsel will suggest it compromises.

 

It's defence is essentially twofold, limitation (which you should be able to overcome) and its attempt to reverse the burden of proof with regard to UTCCR... which you should also be able to overcome. Really not sure why it would want to progress the case other than because it can!

 

Did it's counsel remain in house or did you receive a change notice prior to hearing? Sorry, I don't understand this question

 

Thanks Mike

p.s What's ADR?

[AndyOrch]

ADR alternative dispute resolution and did they have a change of solicitors UP2?

 

Regards

 

Andy

[up2meears]

Hi Andy,

 

The lady said she was from LPC Law, so looks like it was, What does that mean? should they have told me beforehand?

 

Thanks

Up2

[AndyOrch]

They use different companies UP2 it may well be so

 

http://www.lpc-law.co.uk/

[Mike_hawk]

Hi Andy,

 

The lady said she was from LPC Law, so looks like it was, What does that mean? should they have told me beforehand?

 

Thanks

Up2

 

You should have received a notice of change, if not how do you know who to serve documents on and who to engage with?

 

Perhaps sensible to ring the court tomorrow and find out if there's been a change notified.

 

What address and counsel details were in the app to set aside?

[up2meears]

On googling LPC Law it appears to be a nationwide firm that specialise in 'lawyers for hire' and judging by the way she seemed familiar with the usher (i.e think they knew each other) it would appear she is local to me.

 

Should I have been informed MBNA was doing this?

[up2meears]

Sorry Mike, Andy

 

crossed posts

 

Counsel details and address on N244 were MBNA solicitor and address

[Mike_hawk]

Should I have been informed MBNA was doing this?

 

It advises the court, which in turn serves you notice... it may seem a small issue but it can lead to confusion if service addresses change without notice.

 

Check with the court tomorrow.

[up2meears]

Will do Mike, thanks for that

[AndyOrch]

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part42

 

Change of solicitor – duty to give notice

 

42.2

(1) This rule applies where –

(a) a party for whom a solicitor is acting wants to change his solicitor;

(b) a party, after having conducted the claim in person, appoints a solicitor to act on his behalf (except where the solicitor is appointed only to act as an advocate for a hearing); or

© a party, after having conducted the claim by a solicitor, intends to act in person.

(2) Where this rule applies, the party or his solicitor (where one is acting) must –

(a) file notice of the change; and

(b) serve notice of the change on every other party and, where paragraph (1)(a) or © applies, on the former solicitor.

(3) The notice must state the party’s new address for service.

(4) The notice filed at court must state that notice has been served as required by paragraph (2)(b).

(5) Subject to paragraph (6), where a party has changed his solicitor or intends to act in person, the former solicitor will be considered to be the party’s solicitor unless and until –

(a) notice is filed and served in accordance with paragraph (2); or

(b) the court makes an order under rule 42.3 and the order is served as required by paragraph (3) of that rule.

(6) Where the certificate of a LSC funded client or an assisted person is revoked or discharged –

(a) the solicitor who acted for that person will cease to be the solicitor acting in the case as soon as his retainer is determined –

(i) under regulation 4 of the Community Legal Service (Costs) Regulations 20001; or

(ii) under regulation 83 of the Civil Legal Aid (General) Regulations 19892; and

(b) if that person wishes to continue –

(i) where he appoints a solicitor to act on his behalf, paragraph (2) will apply as if he had previously conducted the claim in person; and

(ii) where he wants to act in person, he must give an address for service.

(Rules 6.23 and 6.24 contain provisions about a party’s address for service.)

(7) ‘Certificate’ in paragraph (6) means –

(a) in the case of a LSC funded client, a certificate issued under the Funding Code (approved under section 9 of the Access to Justice Act 19993), or

(b) in the case of an assisted person, a certificate within the meaning of the Civil Legal Aid (General) Regulations 1989.

Back to top

 

[up2meears]

Wow, Thank you kind sir

 

Shall have a read of that again in the morning once I'm more awake, will hopefully make more sense lol.

 

As always thanks for all your help and advice again tonight guys :hug: appreciated muchly

[up2meears]

So, I am just going through their defence and the parts of my PoC that they say I must prove.

 

I have a question about the LA 1980 - which they are basing the defence on. As they immediately admitted to miss selling the PPI from the start of the account (2000) does that not automatically restart any clock? If not then I need to know if them adding the PPI without my consent constitutes a mistake or fraud? Both of which help my case as under section 32 of the act it says:

 

1)Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a)the action is based upon the fraud of the defendant; or

(b)any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

©the action is for relief from the consequences of a mistake;the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.

 

I just need to know which is best to use for my case as I have being going on 'a mistake' but wondered if I can call it fraud?

 

As always, thoughts appreciated

Up2

[up2meears]

The Court have no record of it changing it's Counsel.

[Mike_hawk]

So, I am just going through their defence and the parts of my PoC that they say I must prove.

 

I have a question about the LA 1980 - which they are basing the defence on. As they immediately admitted to miss selling the PPI from the start of the account (2000) does that not automatically restart any clock? If not then I need to know if them adding the PPI without my consent constitutes a mistake or fraud? Both of which help my case as under section 32 of the act it says:

 

1)Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a)the action is based upon the fraud of the defendant; or

(b)any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

©the action is for relief from the consequences of a mistake;the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.

 

I just need to know which is best to use for my case as I have being going on 'a mistake' but wondered if I can call it fraud?

 

As always, thoughts appreciated

Up2

 

It's the reasonable diligence which is the stumbling block in limitation, I suppose it's possible to overcome if you can show that information was withheld from you but diligence is ongoing and the court may not agree with you that it was not possible to bring within time. I still think you should cover all possibilities and argue s.29 as further and alternative to s.32

 

As for change of counsel, if no notice then stick with original service address and contact details..... it's annoying when they instruct local advocates for hearings but I can't see that it causes prejudice

[up2meears]

Thanks Mike,

 

I have sent the request for its breakdown to the original address this morning, plus the mediation form to the court. I have also received an email from the Police that confirms the job offer was withdrawn due to financial history as I had a CCJ registered at the time.

 

On s.29 am I looking at this part -

 

(5)Subject to subsection (6) below, where any right of action has accrued to recover—

(a)any debt or other liquidated pecuniary claim ; or

(b)any claim to the personal estate of a deceased person or to any share or interest in any such estate ;and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

(6)A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.

(7)Subject to subsection (6) above, a current period of limitation may be repeatedly extended under this section by further acknowledgments or payments, but a right of action, once barred by this Act, shall not be revived by any subsequent acknowledgment or payment.

 

The rest of this section seems to be about mortgages and land?

 

Thanks

Up2

[Mike_hawk]

Thanks Mike,

 

I have sent the request for its breakdown to the original address this morning, plus the mediation form to the court. I have also received an email from the Police that confirms the job offer was withdrawn due to financial history as I had a CCJ registered at the time.

 

On s.29 am I looking at this part -

 

(5)Subject to subsection (6) below, where any right of action has accrued to recover—

(a)any debt or other liquidated pecuniary claim ; or

(b)any claim to the personal estate of a deceased person or to any share or interest in any such estate ;and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.

(6)A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.

(7)Subject to subsection (6) above, a current period of limitation may be repeatedly extended under this section by further acknowledgments or payments, but a right of action, once barred by this Act, shall not be revived by any subsequent acknowledgment or payment.

 

The rest of this section seems to be about mortgages and land?

 

Thanks

Up2

 

Emboldened ss 7 above, its the written acknowledgment within the PPI redress you may be able to rely upon as an extension by acknowledgment.... not suggesting it couldn't go one way or the other but if you have some form of acknowledgement within [and extending] the period I'd be inclined to use it. There is some authority on the matter of the ack being signed to satisfy the act but I believe you answered that quite a way back in your thread. I suppose, thinking slightly outside the box for a moment the 2 sections [29 & 32] could be combined if it failed to address the charges at the time of the PPI redress and assuming you referred to as concealment/ mistake in calculation?

[up2meears]

Emboldened ss 7 above, its the written acknowledgment within the PPI redress you may be able to rely upon as an extension by acknowledgment....So, as the charges came about because of the PPI, which they have not tried to deny under the LA, then they have acknowledged that the charges are not time barred as they are part of the mistake they have re-dressed not suggesting it couldn't go one way or the other but if you have some form of acknowledgement within [and extending] the period I'd be inclined to use it. There is some authority on the matter of the ack being signed to satisfy the act but I believe you answered that quite a way back in your thread. I suppose, thinking slightly outside the box for a moment the 2 sections [29 & 32] could be combined if it failed to address the charges at the time of the PPI redress and assuming you referred to as concealment/ mistake in calculation?

 

It admitted mis-selling PPI in May 2012 and it's letter states "In order to calculate your refund we have worked out how your balance would have changed if you had made the same monthly payments without PPI. Therefore:

 

We have notionally reconstructed your statement balances by removing the PPI premiums and associated interest. This includes interest arising because the ongoing monthly balance on your account was higher than it would have been if you had made the same payments without PPI" but not taking the charges into account, which shows every single one whilst the PPI was being applied would not have been charged because the balance would have been under its limit.

 

I received their refusal to refund charges letter in June 2012. Which talks about how they have always set fair charges and despite being already being fair (at 25 quid a pop) reduced them to £12 in 2006 after the OFT issued guidelines yatta yatta. They then go on to say,

"We do wish to resolve this matter, however our records indicate that you have not been charged any default fees over the past six years. Therefore I am unable to offer any goodwill credit on this occasion"

 

They also say that they do not have any records regarding the service I received from them prior to 2005 and are unable to investigate the issues I raised regarding default sums on my account - They redressed the PPI the month before, surely they can see the charges should have gone away within this re-dress? Concealment?

 

Up2

[slick132]

I'm not clear how the admission re PPI can help the Limitation Act issue regarding penalty charges.

 

We have always quoted s.32(1)© for payments levied and/or paid mistakenly as the burden of proof would be greater if alleging fraud.

 

[BRIGADIER2JCS]

I'm not clear how the admission re PPI can help the Limitation Act issue regarding penalty charges.

 

We have always quoted s.32(1)© for payments levied and/or paid mistakenly as the burden of proof would be greater if alleging fraud.

 

 

 

 

I do not believe the PPI acknowledgment can affect the LA on charges.

[Mike_hawk]

The other side has denied [within it's correspondence] that it holds any data prior to 2005, it is in effect relying on this point as an alternate defence at para #9

 

'9. If the Claimant is able to prove her case, which is denied, she will be put to strict proof as to the losses claimed'

 

The PPI matter acknowledges the charges fell concomitant to the premiums debited and effect on balance but failed to address them when restructuring the balance.