MBNA Charges - refused

[Guest]

the (incorrect) transfer? seems one court not knowing what the other is doing?

[up2meears]

Seems to be the case Ford

 

I will be phoning Chester tomorrow to get this transferred to my local court. I am assuming I can do this over the phone? I will as Mike suggests ask to speak to a manager.

 

Also, I further assume I wait until it has been transferred to my local court before sending my WS? Do I need to fill in any form to accompany this?

 

Many thanks

Up2

[up2meears]

Evening all,

 

Firstly Andy, thanks for answering my pm.

 

I have prepared a witness statement and would really appreciate thoughts please. I have never done one of these before or made use of CPR so I would appreciate any guidance if I need to add/remove or change anything. I'm sure I've gone wrong with the CPR

 

Should my request of transfer be added to this? I will be contacting the court tomorrow regarding this.

Have I set it out in the right format?

 

I'm sure there was something else I had to ask, but can't think - bet I remember as soon as I submit!!

 

 

As always, many thanks

Up2

[Guest]

hi

re pm to look in

yr statement seems good

ensure also that you mention and exhibit the courts orders re final date for filing at court, of which they did not comply with.

which is the cpr 5b you mention?

see my post #117, including cpr 3.9, if applicable? see also the associated practice directions.

did they apply for set aside within 14 days?, but there was poss some admin cock up re courts and you didn't get prompt notice of it?

i saw a case recently on cag re relief from sanctions, but cant recall where atm. i think it was re 'mitchell'? ps, here it is #118 here http://www.consumeractiongroup.co.uk/forum/showthread.php?391513-MKDP-LLP-Court-Claim-HSBC-Credit-Card***Struck-Out-amp-Costs***/page6

give andy and mike a nudge to look in also.

[up2meears]

Many thanks for your input Ford.

 

hi

re pm to look in

yr statement seems good

ensure also that you mention and exhibit the courts orders re final date for filing at court, of which they did not comply with. Got a copy of the N149a and page from guidance notes ready

which is the cpr 5b you mention? See below

see my post #117, including cpr 3.9, if applicable? see also the associated practice directions.

did they apply for set aside within 14 days?,their N244 says 14th Jan, when I called the court on 31st Jan there was no record of it and it is date stamped by the court on 11th Feb, so don't know for sure but there was poss some admin cock up re courts and you didn't get prompt notice of it? I received it on 14th so sent pretty much straight after the court stamped it

i saw a case recently on cag re relief from sanctions, but cant recall where atm. i think it was re 'mitchell'? ps, here it is #118 here http://www.consumeractiongroup.co.uk/forum/showthread.php?391513-MKDP-LLP-Court-Claim-HSBC-Credit-Card***Struck-Out-amp-Costs***/page6 Had a look at this and think I can use it so re-vamped my WS and re-attached

give andy and mike a nudge to look in also.

 

 

 

I was thinking of this part from CPR5b -

6.3

The online forms service will assist the user in completing a document accurately but the user is responsible for ensuring that the rules and practice directions relating to the document have been complied with. Transmission by the service does not guarantee that the document will be accepted by the specified court.

 

As mentioned above, they filed it to an address on the MoJ website, not the address specified in the guidance. Although as I am not au fait with the CPR it is very possible I misunderstand them.

 

Thanks again for your time and help with this

 

Up2

[Guest]

ok, is cpr practice direction 5b, para 6.3. seems useful, include it. if something is n/a then J will say so. better things in then out

seems maybe then they haven't filed within the 14 days? (when was the judgment again?) their excuse being lack of staff and wrong address? as you say, a poor excuse for a multinational corp with endless resources! so, could highlight their failure to submit set aside within 14 days, as per 3.5 (if applicable)?

am thinking re para 11 delete 'and they should be sanctioned........' (they have already been sanctioned re strike out re failing to comply with an order) and i think they are now also claiming relief from such sanction. and then include a sub bit in para 13 eg along lines of 'and that the court should deny the defendant relief from sanctions....'

double check though! have asked andy and mike hawk to look in, hopefully they will.

[Guest]

... have asked andy and mike hawk to look in, hopefully the will.

 

 

soz, mikes pm box is full apparently. hopefully he will pick this up.

[up2meears]

Hi Ford,

 

Judgment was 14th January and they have dated their application to set aside 14th January also?? but was received by Wrexham on 11th Feb. So nil days to receive the judgment and prepare the N244 and witness statement, but nearly a month to get it to the court!!!!!!!.

Can you backdate a form? I'm pretty sure you cant, as the signed statement of truth is also the 14th. Surely that needs to be signed on the day it was done?

 

Am re-tweeking the witness statement and will re-post when done.

 

Thanks for the s.o.s to Andy and Mike

 

Up2

[Mike_hawk]

Hi Up2

 

Sorry, my posts on here will be sporadic at best for a while. I've left my PM's bunged out for now but will look in whenever possible. To be frank the other side will probably be granted relief to set aside so you should be prepared, also add emphasis to the penury nature of its charges to your w/s. Hopefully you'll be afforded the opportunity to discuss at a hearing and agree directions with the DJ if s/he allows the case to proceed. The court will rarely prejudice a defendants case if its counsel has failed on a technicality.

 

Hearing venue... bear in mind that the courts are generally a couple of weeks behind with paperwork, any transfer for enforcement would be at the debtors home court... any application to set aside would be filed there... Hence the need to get this transferred back out to your home court.

 

Have you made a wp approach to the other side to settle on agreed terms?

[up2meears]

Thanks for looking in Mike - anytime you can spare is much appreciated.

 

On advice from the court I have sent an email asking for this to be transferred to my local. Have had an auto acknowledgement and will call them next week if I haven't heard anything further

 

I will defo emphasise the nature of the charges but am scared of making the ws too long as there's so much involved with it.

 

I was hoping them fabricating their dates would benefit me as it seems like deliberate deceit and I figured the Court would frown upon this? Never mind if it doesn't as I am more than prepared to go to court.

 

WP - without prejudice? I haven't approached them to settle on agreed terms - didn't occur to me tbh. I am prepared to do this but haven't a clue how to go about it.

 

Thanks again for your time

Up2

[Mike_hawk]

Try to remember the other side still need to show the court that there are triable issues and its defence would have merit.

 

Breakdown of its costs would seem a sensible disclosure point for your inspection pre-trial, ergo it(s lack of) should be contained within your w/s.

 

Do you have an email address or contact number for its counsel? Just ask if it will take instruction to discuss w/p (off the record) a compromise to avoid further costs and the courts time.

[up2meears]

I do have an email address for them, I will have a go at drafting a letter for a compromise. Would I do this before I sent my WS to the court? I would prefer to send it after so that they can see I am serious about going all the way.

 

When you say breakdown of costs do you just mean a list of the actual costs or a copy of the spready I sent with interest? they applied a couple of hundred of pounds worth after they refused to pay out on PPI or freeze interest and charges.

 

How long should a WS be (what is acceptable) could I use points that are in my POC or would they have sight of that anyway?

 

What do you think?

 

Up2

[Mike_hawk]

Right, 3rd attempt to reply.... Bliddy hard work on a phone, grrrrrr

 

Compromise, best discussed sooner rather than later... Its a commercial decision for the other side, the sooner you let its counsel know you're prepared to talk the sooner it will take instruction.

 

Breakdown of costs... Its default fees should reflect a genuine estimate of its costs/pre estimate of loss... ask yourself how it can substantiate those costs and how you can frame the point within your w/s.

 

PPI... not read the entire thread, are you also claiming an element of PPI?

[up2meears]

Awww sorry mike for keep on asking questions when your phone is being naughty.

 

I have already had a refund of PPI although I disputed the amount I accepted their offer - they admitted miss-selling straight away as I hadn't ticked the box

 

It will take me a couple of days to prepare a compromise letter as I will want to have a read around and get a feel for what it should say etc. But I will post it up for advice before sending

 

Thanks again Mike especially as it's been a nightmare for you to post

 

Up2

[Mike_hawk]

Should the charges have been accounted for within the PPI reconstruction of account or are these after the event of its previous settlement?

[up2meears]

If I've understood your question, these are after the event.

 

I don't think they could have been included with the PPI because of them being two separate issues.

 

Plus most of the charges didn't occur until they refused to pay up on the PPI and I couldn't afford payments due to having to rely on Incapacity Benefit when my sick pay from work ended

[Mike_hawk]

PPI redress should have reconstructed the account from inception....

 

Had a brief skim read of your thread and my immediate thought is that any premiums & interest from year one would surely have made an impact on the running balance when the first default fee was applied in 2001? The fees should have been drawn into the settlement if the PPI/Interest thereon drew the account into default/breach.

 

Did you retain a copy of its offer for PPI, what was the date and did it include any statement to the effect that you would not pursue any other related damages?

[up2meears]

I have got a copy of their offer for PPI. This was May 2012 - It didn't include any statement about pursuing related damages, it did say this was it's full and final offer and when I disputed the amount and requested a breakdown (although I never received that) they said it was correct and that was that.

 

Last Oct after reading the mega thread on MBNAs PPI interpretative calcs, I again asked for a breakdown and a review of the award and again was told it was right but finally received the breakdown. I was going to go through the FOS but appeared that my breakdown was not one of the rogue ones so didn't pursue it.

 

I can post up the breakdown if you think it would help, I don't understand it tbh

[Mike_hawk]

I think it would be helpful to have sight of its offer and the compromise you signed in settlement.

 

Could you also post a copy of its w/s

[up2meears]

Here's the PPI breakdown, page 3 is on the second PDF

 

It will take me a while to scan and edit the offer letter* and their w/s

 

*I didn't have to sign anything for this offer

 

Cheers Mike, will post up the rest as soon as.

[Mike_hawk]

Could you also post a list of charges and dates........ assume you have attempted to reconcile with the account balance?

 

Also......... remind me, is the account still with MBNA or assigned and have you made it clear in your particulars [assuming outstanding debit balance] that the claim is in restitution?

[up2meears]

Account was assigned to Link Financial in April 2005

 

This is from my POC:

 

And the Claimant claims:

 

(1) A declaration that the sums totaling £xxx.xx have been wrongly applied to the Account. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council.

 

(2) Payment of the said sum of £xxx.xx and interest in restitution of £x,xxx.xx as per the case of Sempra Metals v Inland Revenue Commissioners.

 

Here is their offer letter and total charges and dates

[Mike_hawk]

I believe the signed settlement notice should overcome s29 of the LA.... s32 doesn't always win the day.

 

Regardless of the lawfulness of the fees [DJ's are loathe to test them on the sct] are you able to state that the fees would not have been incurred save for the PPI element....... do you have statements from the period identifying credit limit?

 

Sorry, a few questions I know but the more weight you can add to your w/s the greater the possibility that the other side will want to talk prior to trial.

[up2meears]

I believe the signed settlement notice should overcome s29 of the LA.... s32 doesn't always win the day.

 

Regardless of the lawfulness of the fees [DJ's are loathe to test them on the sct] are you able to state that the fees would not have been incurred save for the PPI element......No, but then I am not re-claiming the charges in relation to the PPI miss-selling, more due to when and why they happened and the subsequent harassment, distress and loss I have suffered due them not adhering to the debt collection guidance. Saying that, if they had either paid out on the PPI or treated me fairly, monthly payments could have been more manageable, I wouldn't have had to take on more borrowing and I could have been back to work and back to normal payments. Their actions at the time cost me loads financially, mentally and physically . do you have statements from the period identifying credit limit? I have one statement dated 4 days before they let Link loose on it

 

Sorry, a few questions I know but the more weight you can add to your w/s the greater the possibility that the other side will want to talk prior to trial.

 

Don't mind all the questions Mike, just grateful for all your help

[Mike_hawk]

Hi Up2

 

It's difficult to view the attachments on my phone, really need to be on my laptop to scrutinise them fully.

 

I can however see that several of the £25.00 charges are identifiable as transactions and appear to have been drawn into the ppi settlement.

 

Please could you cross reference with the running balance and check whether any/all have previously been settled.