MBNA Charges - refused

[Mike_hawk]

Was its offer in response to your email, was it presented to you as w/p?

 

You'll have to remind me.. has this been allocated to track yet?

 

Offers almost always start very low, pretty much at the level of the filing fee is the norm.

[up2meears]

Evening Mike,

 

Yes it was marked w/p save as to costs and referred to email.

 

The N149a says - It appears that this case is suitable for the small claims track

 

They have put my local court on the Tomlin Order, but have said they are confident that the court will set aside judgment and reinstate their defence at the hearing on 17th March (which has now been vacated by Chester) and strong prospects of defending my claim.

 

Up2

[Mike_hawk]

Could you post a copy of the schedule it proposes

[up2meears]

Sorry Mike, schedule? Is that the info they supplied with their N244?

[Mike_hawk]

Terms of tomlin order

[up2meears]

Okay, here it is

[up2meears]

Here's my revised WS

 

I have made a list at the end of it of evidence I will be submitting with it. I know there should be more but am not sure what is relevant and what isn't so again I would appreciate some help please.

 

Up2

[Mike_hawk]

I`ve seen better... it doesn't appear to understand its proposal! A district judge won't agree to seal the order constructed like that.

 

For the sake of a few quid and a day lost for the hearing I'd be inclined to call her and ask for a chat off the record.

 

It will probably be granted the set aside and you'll probably come away with general directions for defence, disclosure, hearing etc on the sct... by the time you've run through the process there's no real win when you consider your time, travel, copying, phone... the list is endless.

 

Try her at say 90% and offer to draft the schedule.

[Mike_hawk]

Up2

 

Let me know if/when you've had a chat with MBNA.

 

One point worth noting, if this proceeds to the hearing don't allow yourself to be drawn on the f&f settlement of PPI.. keep in mind the 2 separate elements of PPI and those of default/penalty charges.

 

S29 of the LA may also provide you with a greater chance of relief instead of s32 as you have a signed acknowledgment from the other side within the PPI redress.

[Mike_hawk]

Resolved yet or still preparing for the hearing?

[up2meears]

Hi Mike,

 

Have been without my dino laptop for what seems like forever (don't know how I managed lol) and since I last posted I have received a new hearing date for my local court, and have sent my W/S to them.

 

I have not been able to reply to MBNA offer by the deadline so not sure if I still can, but I really do not want to call.

 

I didn't manage to see your posts regarding S29 until today, and my w/s has already been sent so I'll have to hope that S32 is enough . Will the Court send a copy of it to MBNA? or should I have done that?

 

I wont let them try and bamboozle me into the f&f for PPI, I will have copies of the letters sent questioning their calculations after the PPI was received.

 

S29 of the LA may also provide you with a greater chance of relief instead of s32 as you have a signed acknowledgment from the other side within the PPI redress Sorry Mike, I'm not sure what you mean by this remark. The PPI redress was less than 2 years ago, and as far as I remember nothing was signed! does that make a difference? Or am I totally confusing myself (again )

 

I also received a bailiff warrant returns report, that says:- To the Claimant, TAKE NOTICE that the WARRANT in this action has not been executed for the following reasons:- 149 DESCRIPTION - ORDER MADE XFERRING CASE TO XXXX. UNABLE TO XFER OUT WITH LIVE WARRANT. WRT TO BE REISSUED IF APPL SAJ UNSUCCESSFUL. The warrant has been returned to the Court which issued it.

 

That was from Wrexham CC, (where I was told by CCBC to send the request) and it appears to have been sent to Chester CC, but received the report from my court. I assume this means I will not have to pay for a new one if their set aside request is refused?

 

Thanks as always

Up2

[Mike_hawk]

You should serve copy w/s on the other side and attach any docs you refer to and rely upon.

 

There is no time limit on your response, MBNA may want you to believe there is but the parties should be seeking to resolve the issues, setting time limits seems to contradict the overriding objectives.

 

Limitation act s29(7) refers to the extension of time by ack or payments, its PPI redress letter may satisfy the extension of usual 6 year bar. I note the account was assigned in 2005 and the redress was settled in 2012 so you may need to lay your hands on correspondence from it in the intervening years to fully satisfy the court.

 

Warrant fee, you should be able to recover this, send the other side a brief summary of your costs in the case to include the sa hearing and take a copy with you on the day.

 

Don't duck out of calling the other side, it can pay dividends and save a lot of time.

[up2meears]

You should serve copy w/s on the other side and attach any docs you refer to and rely upon. - [i]Will do[/i]

 

There is no time limit on your response, MBNA may want you to believe there is but the parties should be seeking to resolve the issues, setting time limits seems to contradict the overriding objectives. I will draft a letter explaining why their offer is unacceptable and that I have submitted a W/S and enclose a copy (and 15 pages of docs I refer to) The hearing is at the end of April so plenty of wiggle space. Should I also prepare my version of terms?

 

Limitation act s29(7) refers to the extension of time by ack or payments, its PPI redress letter may satisfy the extension of usual 6 year bar. I note the account was assigned in 2005 and the redress was settled in 2012 so you may need to lay your hands on correspondence from it in the intervening years to fully satisfy the court. I have letters from Link between 2005 and 2012, but alot of correspondence from MBNA from 2012 when the PPI refund was originally requested. As you say, they have paid the PPI after the six year period, so have they not basically acknowledged that the LA does not apply due to fraud/concealment/mistake? [/I]

 

Warrant fee, you should be able to recover this, send the other side a brief summary of your costs in the case to include the sa hearing and take a copy with you on the day. I will have a go, but I may need help with this bit

 

Don't duck out of calling the other side, it can pay dividends and save a lot of time. [I]I have been trying to build myself up to this but can't even get the first line rehearsed in my head - I deal with this sort of thing much better in person and am not as scared of having to go to court as I am picking up the phone. Nuts I know, but I don't want to call and get myself all tongue tied and appear weak and inexperienced for them to use against me

 

Thanks Mike

[Mike_hawk]

S32 is always difficult to prove, s29 is far simpler 'if' you can show correspondence from the intervening years resulted in the 2012 redress.

 

MBNA's defence appears to be attempting to reverse the burden of proof to you. If it pleads the terms are fair you must press for disclosure of it breakdown of costs to establish whether the charges were a genuine pre estimate of loss.

 

Don't get in a flap, ring the other side and state you are prepared to settle for £xxx, don't get drawn on any arguments its purely to agree the quantum.

 

Costs summary is straightforward, something along the following lines but amended to suit your case;

 

13th February 2014

 

Dear xxxx

 

Re: Case no xxxxxxx Mr xxxxxxxxxxx v xxxxxxxxxxxxx Ltd

 

By way of service please find below summary of costs in the matter of xxxxxxxx hearing at 20th February 2014.

 

 

1. 1 day loss of earnings at Litigant in Person rate of £90.00 [Practice direction 27, para 7.3 (1)

2. Travel 20.4 miles round trip from XXXX XXX @ £00.45 per mile - £9.18

3. Parking £5.00

 

Total at £104.18

 

 

I trust the above is in order.

 

Regards

[up2meears]

EDITED POST I have decided not to send a variation of the Tomlin Order as I do not fully understand its use and have removed the attachment

 

 

Many thanks

 

Up2

Edited March 22, 2014 by up2meears
Have decided not to send a variation of Tomlin Order

[Mike_hawk]

EDITED POST I have decided not to send a variation of the Tomlin Order as I do not fully understand its use and have removed the attachment

 

 

Many thanks

 

Up2

 

Seems sensible Up2, any news from the other side yet?

[up2meears]

Hi Mike,

 

Since last posting, I have sent them another offer (when I sent my witness statement) but have heard nothing - that was about a month ago (Their solicitor needed to read my copy of the WS because MBNA didn't give her a copy).

 

The hearing for set aside was yesterday, and as you correctly advised it was allowed as it seemed they had submitted the docs correctly.

 

The Judge apologised that it had been an error of the court and explained that it will go back to the stage it was at. Fair enough.

 

He asked whether I had filled out the mediation form, which I do not remember seeing so I said no, but told him that I had requested mediation on the N180. He said that if mediation doesn't work or I am not happy with any offer they provide, then I can carry on through the court at the end of May.

 

I asked their solicitor lady where I get the mediation form from and she said the court will send me one - is that right or am I best requesting one?

 

In the assumption that this will now go to court I am starting to get paperwork ready and will be writing a letter to MBNA to press for disclosure (like you mentioned in post #264) for its breakdown of costs to establish whether the charges were a genuine pre estimate of loss. - I am assuming I can request this info now as I will need this in order to prove what they've stated I will need to prove - hope that makes sense

 

I am also sending a SAR to the DWP for confirmation of the dates I was in receipt of IB (although I have a copy of the letter I sent MBNA at the time asking for help which states the dates) but I thought this would be useful and also a letter to my local constabulary asking them to disclose the reason the job offer was withdrawn although I'm not sure if I can request this via a SAR or under something else like the Freedom of Information Act? - I will have to research.

 

I have started highlighting all the points in the OFT debt collection guidelines 2003 which MBNA have breached (getting all the evidence together I have to prove their breach) and have downloaded a copy of the UTCCR 1999 as they are using this in their defence regarding the legitimacy of the charges.

 

I am now going to dig out the dummys guide to preparing a court bundle which slick kindly provided me with a few months ago.

 

Up2

[slick132]

Hi Up2,

 

I am now going to dig out the dummys guide to preparing a court bundle which slick kindly provided me with a few months ago.

 

Did I send you as copy by e-mail as the Site link may not be working.

 

[up2meears]

Hi Slick

 

Yes you sent it to me via email back in 2012 (didn't think it was that long - my how time flies)

 

Up2

[Mike_hawk]

Hi Up2

 

I've sort of lost track of where you are with service of documents at this stage... do you have a copy of it's defence? If you've already posted it could you point me in its direction please.

 

Also, did the dj state whether he would allocate to small claims?

[up2meears]

Hi Mike,

 

Their defence is at post #56

 

The dj said he would allocate to small claims track

 

Up2

[Mike_hawk]

Hi Mike,

 

Their defence is at post #56

 

The dj said he would allocate to small claims track

 

Up2

 

SCT is good news, not much prospect of it recovering it's costs for instructed counsel....... should provide you with a little more leverage to get this thing settled.

 

I'd start pressing it for disclosure of it's charges breakdown now, it will probably ignore but it should be under notice that if it seeks to defend on the basis that the charges are fair and is attempting to put the burden of proof on you it will be compelled at some stage to disclose. Perhaps remind it of schedule 2.1 (q)

 

(q)excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract.

[up2meears]

Brilliant Mike,

 

Many thanks for that I will draft a letter to send - probably tomorrow now as I am swimming in paperwork, but will post up for checking before I send.

 

Up2

[up2meears]

Hi Mike,

 

I'm trying to send you a PM but your inbox is full. Can you please let me know when you have some space please

 

Many thanks

Up2

[Guest]

hi up2, just looking in

as expected, they got their setaside down to the 'error'. at least the j apologised! and you didnt get stung for any costs for the hearing. good luck.