MBNA Charges - refused

[up2meears]

Hi Slick, Brig.

 

Thanks for your comments on the LA thing, totally confused with it now but I have started preparing a new WS to use if it goes to Court and I am sure it will come in handy during any mediation also. It only includes the LA part at the mo, but if you guys wouldn't mind having a look at it for me I would be grateful.

 

Many thanks

Up2

[BRIGADIER2JCS]

I agree is does appear that the creditor does have access to the historic data, the matters to be decided are you claiming that you only became aware of the charges at the time the PPI claim was processed, or were you aware of them already.

IMO upto this will need a judges decision.

 

 

Have you put this to the ICO, you may get an answer with a phone call.

 

 

Slick may have some more advice.

[up2meears]

I knew the charges had been added as they did show on my statements and although I tried to re-claim them in 2012, I wasn't aware until I received the PPI calculation sheet (end of last year) that the account would never have gone over it's limit if they hadn't added the PPI - So I became aware of their mistake late last year, but could have diligently known in 2012, when they claimed they did not have any historic data. I

 

I agree it may need a judges decision, that is why I need to get this right in preparation .

 

I have thought about contacting the ICO, and OFT but want to get everything in order first as MBNA seemed to have breached various regulations and guidelines over the years.

 

Thanks Brig

Up2

[Mike_hawk]

Probably best to wait on notice from the court up2. Perhaps undertake further research in the meantime.

 

To be frank I don't fully understand why you didn't take the issue up with the fos as your first port of call, what's done is done but we really need to find you something substantive that will assure you of overcoming limitation bar and that will force the other sides hand in compromising the case. If it goes to trial you run a 50/50 risk on this going against you.

 

There are issues within its PPI redress, it clearly states it was in accordance with fos guidance, which in turn relies on DISP (FSA/FCA handbook). Taking those rules at face value it did not consider 3.9.2 in addressing the associated losses flowing from the breach. Although the particular rule is a should not a must and the rules don't appear to give rise to an actionable cause for the individual consumer it should have been adequate for the fos to consider upholding. If you could find some/any authority on a cause of action within the DISP handbook it would add some weight to your arguments.

[up2meears]

To be frank I don't fully understand why you didn't take the issue up with the fos as your first port of call, what's done is done but we really need to find you something substantive that will assure you of overcoming limitation bar and that will force the other sides hand in compromising the case. If it goes to trial you run a 50/50 risk on this going against you.

 

I did think about the FoS Mike, but thought 1) Court would be quicker 2) If FoS didn't agree with me and I then took it to court, MBNA would have more chance of success as they could argue that a competent authority have agreed with them. 3) FoS are so snowed under with the PPI complaints, I'm worried how deep they are looking into complaints, and that my case may be misinterpreted and lose it over something silly.

 

I will have a look through the DISP handbook for extra ammo. I also need to read the relevant case law Kleinwort Benson v Lincoln City Council if the LA 1980 is not going to be enough by itself. I have had a quick read through of it, but if anyone knows which particular part I should be looking at? that would be great.

 

Up2

[up2meears]

Received the Order yesterday from the hearing:

 

1. The judgment against MBNA Ltd be and is hereby set aside

2. The case be allocated to small claims track

3. The claim be stayed for a period of one month to allow the parties to mediate

4. The parties to notify the court the outcome of the stay by xx/xx and the matter, if not settled will be set down for a final hearing

 

I have a few questions please.

 

I have not received any forms to fill in regarding mediation, but I managed to get a copy and sent it to the court and MBNA about 10 days ago - I am assuming the mediation service contact me?

 

What happens with the interest now that it has gone back to the claim stage? does that continue from the date of judgment? Or is what the judgment was for now the total of my claim - if that makes sense

 

What do I do about the warrant fee? As the judgment resulted because of an admin mistake by the court would I request this back from them?

 

Thanks guys

Up2

[Guest]

they should do

prob put back as to start of claim

yes, ask for it back?

[Mike_hawk]

Up2

 

Telephone number/s for mediation service should be on the notice/N24 you received from the court. It will engage with the other side assuming it wants to play

[up2meears]

There was no telephone number on the N24, but I need to call them because in the letter I received from MBNA today refusing to provide a breakdown of its charges, it says:

 

Finally, we refer to the recent order dated xx/xx/xx in which the court granted our application to set aside default judgment and stayed the claim for a period of one month allow the parties to mediate. We repeat our previous offer of £x,xxx (including costs) in full and final settlement of your claim as a gesture of goodwill. This is made without any admission as to liability. This offer is open for acceptance until xx/xx/xx (date set by court)

 

For the avoidance of doubt, MBNA will not be increasing this offer. If you choose not to accept this offer, MBNA will vigorously defend your claim and seek costs against you if you are unsuccessful at trial.

 

If we have not heard from you by xx/xx/xx (date set by court), in accordance with the order dated xx/xx/xx, we will notify the court that the parties have been unable to reach settlement and request that this matter be set down for a final hearing.

 

That's mediation is it? they repeat their insulting offer and if I don't agree, that's it? mediation over?

 

If I call the court will they be able to give me the number?

 

Thanks Up2

 

p.s I do not want to post up the full letter at this time

[Mike_hawk]

The court can provide you with the contact details for mediation, surprised that it wasn't contained within the notice.

 

Respond to its offer with one of your own...... there's always a risk at trial when it relies on limitation so it's always prudent to attempt negotiation.

[up2meears]

Looks like I will have to amend my WS

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?425999-PPI-refunds.-The-banks-have-ripped-us-off-again-BBC-You-amp-Yours

[up2meears]

So MBNA have issued a statement re charges on PPI redress.

 

http://www.mbna.co.uk/about-us/news-room/statement-on-mbnas-ppi-redress

 

How can they claim:

 

"Our system operates so that the cost of PPI is only applied after the customer has gone over limit and after the over limit fee has been applied. As such, PPI could never cause our customers to be over limit or cause the fee to be applied.”

 

Once the PPI was removed from my account my account was never over its limit? It appears they are looking at a customers account on a monthly basis when trying to avoid refunding these charges, and not taking into account the overall status of an account.

 

For example, my first overlimit charge was applied 9 months after the account was opened, and if only the ppi and interest for that month was removed my account would still be over its limit, but by removing the previous 8 PPI payments and interest meant that my account was under. - It doesn't seem MBNA grasp the concept of putting the customers account 'back into the position it would have been had the PPI never been applied'

 

Anyway, as it looks like I'm still going to have to continue to court to get these charges back I need to ask a quick question please.

 

I am still waiting for a final hearing date and am preparing a witness statement to send to the court. As I am relying on S32 of the LA to squash their 'it's statute barred' defence, can I use the statement made by Principal Ombudsman Caroline Wayman - "If a fee is the result of the mis-sold PPI it should be given back, and if it's not included that would be a mistake." to add weight to S32 or would this not be allowed as it's taken from the media reports?

 

Also, does anybody know how these charges should be included within the PPI redress? I need to have some sort of idea how much would be due, in case MBNA present a recalculation in court to counter my claim. (hope that question makes sense)

 

Many thanks

 

Up2

[Old Cogger]

Taking into account that St Andrews blame MBNA and vis versa when challenged about adding premioums to the account whilst a claim for un employment is in place therefore the balance goes up and up?

[up2meears]

Taking into account that St Andrews blame MBNA and vis versa when challenged about adding premioums to the account whilst a claim for un employment is in place therefore the balance goes up and up?

 

None of MBNAs underhanded tactics surprise me - and it doesn't surprise me either that they work alongside others whose ethics are as honourable as their own!!

My balance went up and up when I couldn't work - in five short months, although I was on IB and begged MBNA to help by freezing interest and charges, I took on further borrowing to make payments of just under £1000. In the same five months their charges and interest totaled more than £1000.

 

Up2

[up2meears]

Evening all,

 

Just wondering if anyone could advise on the questions I posted above please

 

As I am relying on S32 of the LA to squash their 'it's statute barred' defence, can I use the statement made by Principal Ombudsman Caroline Wayman - "If a fee is the result of the mis-sold PPI it should be given back, and if it's not included that would be a mistake." to add weight to S32 or would this not be allowed as it's taken from the media reports?

 

Also, does anybody know how these charges should be included within the PPI redress? I need to have some sort of idea how much would be due, in case MBNA present a recalculation in court to counter my claim. (hope that question makes sense)

 

Many thanks

 

Up2

 

MBNA are now claiming I applied for PPI at the application stage and that they don't agree to mis-selling (although they paid up straight away?) So I wrote to them a month ago asking them to provide a copy of this 'online application' as it wasn't included with my SAR stuff, and also for any other info it withheld from the SAR.

 

I have not yet heard from them? - However, I have received a random letter from Link, (who I haven't heard from in over a year since they told me that they were transferring to Quicksilver) saying: Thank you for recent complaint. At this time we are unable to resolve your complaint but acknowledge receipt of it. Your complaint has been assigned to the Complaints Manager. Please find enclosed a copy of a summary of our Complaints Procedure. We will contact you within the next 4 weeks?

 

Do you think this is just a mistake? or have MBNA now dragged Link into this claim as I have included the harassment received by both in my PoC.

 

Many thanks

Up2

[up2meears]

Evening all,

 

I have had the hearing date through and I am finishing off preparing my witness statement to file.

 

However, I was wondering if somebody could translate the following for me please. The hearing form explains about the filing of the WS but I'm confused

 

It says about filing on the court and other party no later than 14 days before hearing, then says Witness statements includes the parties to the claim in addition to other persons What does this mean please?

 

Also,it says It must not be a bundle of relevant documents and then further down it says It should then attach any relevant documents and identify them Excuse me for sounding thick, but does that mean do attach them, just don't shove them in an envelope unidentified?

 

Many thanks guys

Up2

[Mike_hawk]

No other persons in your case so file (court) and serve (other side) by the given date.

 

SCT so the court does not require a huge voluminous bundle, the only docs it requires are those disclosed (referenced as exhibits) within your statement.

 

Eg: By reference to MBNA's open offer of 21st Jan 2014 (EXH 1).......

[up2meears]

Ahhh, okay

 

Many thanks Mike

[Mike_hawk]

Ur welcome up2, I still see this as 50/50 for trial... did you find anything within fsma affecting DISP that may assist? Perhaps a chat with the fos may assist before you file your statement.

[up2meears]

Hi Mike,

 

I have had a look through DISP, and have made reference to 3.9.2 in my WS. I have sent an email to FoS asking if this can be used, especially as they have said recently that if these charges have not been addressed during redress than that would be a mistake - I am off on Friday, so I will give them a call and try find out.

 

MBNA are still ignoring my request to send info they are claiming to have after telling me two years ago the didn't. They have gone dead quiet and it makes me wonder what they are up to. I have paid the hearing fee so just have to get my WS in order

 

Up2

[up2meears]

Afternoon all,

 

I would be grateful of some advice re using the Kleinwort case please. The following is an extract from my WS that I am preparing to send to the Court and MBNA and need some clarification please.

 

2. The Defendant has asked that my claim be struck out by the Court because it is statute barred pursuant to the Limitations Act 1980. These charges are older than the normal 6 years but are claimed by virtue of s32 (1) c of the Limitations Act 1980 as per Kleinwort Benson v Lincoln City Council. I believe that the Limitations Act 1980 does not apply in this case as the charges applied were the consequence of a mistake.

 

Having read through the Kleinwort case am I right in thinking I would use the following extract should the Judge ask why I think this is relevant?

 

The position is even worse because all your Lordships consider that the claims to recover money paid under a mistake of law are subject to section 32(1)© of the Limitation Act 1980, i.e. that in such a case time will not begin to run until the "mistake" is discovered. A subsequent overruling of a Court of Appeal decision by the House of Lords could occur many decades after payments have been made on the faith of the Court of Appeal decision: in such a case "the mistake" would not be discovered until the later overruling. All payments made pursuant to the Court of Appeal ruling would be recoverable subject only to the possible defence of change of position.

 

Also, I called the FoS this morning to try and get clarification on how they would have applied the re-dress regarding the charges and the lady I spoke to confirmed that had the account gone below its agreed limit after the PPI premiums and interest had been removed, they would have re-dressed any 'penalty applied in respect of the mis-sold PPI'

 

If anyone can help with the Kleinwort part, that'd be great

 

Many thanks

Up2

[up2meears]

Sorry, can anyone also advise how I summarise the final part of my witness statement please.

 

(i) The Court is invited to strike out the whole defence in which its bare denial discloses no reasonable grounds for defence in accordance with CPR3.4(2)(a)

(ii) The Limitations Act 1980 relied upon does not have bearing on this case as the penalties were applied by mistake so pursuant to S32(1)© would not begin to run until the mistake is discovered.

 

The claimant therefore requests that their defence be denied and.........................Not sure how to end off

 

Statement of Truth

I believe that the facts stated in this section and in the continuation sheets are true.

 

Signed

Dated

Full Name

 

Many thanks guys

[up2meears]

Afternoon all,

 

I have finished my witness statement and exhibit list ready to go to the court and Defendant on Monday.

 

Should I also enclose an up to date schedule of charges?

 

If yes then Slick, your expertise would be appreciated please in regard to calculating the daily interest

 

Many thanks

Up2

[slick132]

Hi Up2,

 

I've asked if Site Team can give you answers re posts #321 and 322 if nothing else is forthcoming from the various bods who have contributed here before.

 

The SOC already submitted will stand and simple 8% Stat'y Int't accrues daily at the rate of 0.00022 per day on the total claimed for chgs and compound int't. The Stat'y Int't accrues from the date of claim to settlement, or judgement.

 

[up2meears]

Hi Up2,

 

I've asked if Site Team can give you answers re posts #321 and 322 if nothing else is forthcoming from the various bods who have contributed here before. That's great, many thanks Slick. It's the case law I'm mostly concerned about, as I have finished my ws bar crossing the Ts

 

The SOC already submitted will stand and simple 8% Stat'y Int't accrues daily at the rate of 0.00022 per day on the total claimed for chgs and compound int't. The Stat'y Int't accrues from the date of claim to settlement, or judgement. I thought that was it, but after my booboo on the POC with the stat'y int I wanted to make sure

 

 

So sorry, should I attach an updated SOC with stat'y int to date to send with the ws so that the other side can see what I'm claiming thus far? Also, I am assuming I don't add the court fees onto the total - i.e

Claim £xxxx.xx +

Stat'y £xxx.xx +

Sub Total £xxxx.xx +

Court fees £xxx.xx

 

Thanks again Slick

Up2