MBNA Charges - refused

[up2meears]

As I have never been to a hearing before (except the set aside one) I am picturing all sorts of scenarios of how it will be conducted. (reading a lot of threads on the subject has not helped as they are all different) but I am just wondering what to expect? Will it be a case of the judge asking me to explain why I consider it not to be statute barred and me getting a chance to speak or will it be case of him reading the witness statements and making a decision based on what they say?

 

If I'm allowed to speak will the defendant be allowed to interrupt, or try and put me on the spot? If this happens I know it will affect my confidence and get me flustered.

 

Will I be able mention anything that hasn't been mentioned in my WS?

 

Will I be able to challenge what they have put in their WS? for example, they say that the PPI re-dress was 'a goodwill refund' and that it upheld my complaint with 'no legal admission of liability' yet neither term was mentioned in the letter sent to me confirming it was upholding my complaint? Or that the DISP policy does not apply because the charges 'were not caused by the PPI premiums but by the way I conducted my account' As previously mentioned in this thread, the re-dress calculation sheet shows my account is under the cards limit once PPI and its interest is removed.

 

Any advice on the above greatly received

 

Thanks

Up2

[Mike_hawk]

I'd probably try to keep the argument as straightforward as possible, if you go into too much detail the onus will be on you to evidence how much of each charge remained outstanding and for how long. Certainly prepare a spreadsheet in advance of any questions the DJ may have, bear in mind you're on the small claim track and won't be afforded much time to fumble through documentation.

 

DJ's tend to rely on those in the same profession so will inherently be guided by counsel. Not particularly fair but some just do not like Lip's bringing complex legal arguments to trial.

 

I wouldn't get too hung up on the process, spend some time preparing your w/s and keep in mind that as well as overcoming limitation you also need to explain why you believe the charges penury and open to test under utccr

[up2meears]

I have T&Cs from 1995 when the charges were £5 for OL and late payment.

 

Sorry to be a pain Suvin, but would you mind posting these up for me please.

[dx100uk]

I've got virgin money card from 2004 which is MBNA

 

any use

[up2meears]

I

I wouldn't get too hung up on the process, spend some time preparing your w/s and keep in mind that as well as overcoming limitation you also need to explain why you believe the charges penury and open to test under utccr

 

Sorry Mike, I do not understand what this word means or how to use it in my case - on looking up the definition it says

 

penury

ˈpɛnjʊri/Submit

noun

the state of being very poor; extreme poverty.

"he couldn't face another year of penury"

synonyms: extreme/dire poverty, pennilessness, impecuniousness, impoverishment, indigence, need, neediness, want, destitution, privation, deprivation, hardship, beggary, bankruptcy, insolvency, ruin, reduced circumstances, straitened circumstances; rarepauperism, pauperdom, mendicity.

 

I sent off my WS a couple of weeks ago, I am now preparing what I need for the hearing

 

Thanks

Up2

[up2meears]

If you do't mind DX that'd be great.

 

I am not confident MBNA will supply the missing page in time, so I think any I can get my hands on will be beneficial

 

Many thanks

Up2

[Mike_hawk]

Sorry Mike, I do not understand what this word means or how to use it in my case - on looking up the definition it says

 

penury

ˈpɛnjʊri/Submit

noun

the state of being very poor; extreme poverty.

"he couldn't face another year of penury"

synonyms: extreme/dire poverty, pennilessness, impecuniousness, impoverishment, indigence, need, neediness, want, destitution, privation, deprivation, hardship, beggary, bankruptcy, insolvency, ruin, reduced circumstances, straitened circumstances; rarepauperism, pauperdom, mendicity.

 

I sent off my WS a couple of weeks ago, I am now preparing what I need for the hearing

 

Thanks

Up2

 

Penury is the effect of anothers actions, drawn from the Latin 'want'....MBNA empties your bank account, its effect on you is penury.

[up2meears]

Penury is the effect of anothers actions, drawn from the Latin 'want'....MBNA empties your bank account, its effect on you is penury.

 

Ahhhhhh! Now it makes sense. Thank you for clearing that up

 

They have provided the missing page and at last, after years of asking it appears I finally have the correct t&cs, so site team, if any body needs MBNA t&Cs from 2000 I have them.

 

I am starting to get a little stressed now as work is full on at the moment and there seems to be so much I need to do with time running out, so please stay close guys to keep me sane

 

Many thanks

 

Up2

[Mike_hawk]

You're on the SCT, win or lose its unlikely to have much impact on you financially. Clearly the court believes the case has some merit or you wouldn't have a trial date.

 

It would seem sensible to note that it may rely on precedent for LA effect on s.149 cases and attempt to guide the judge to the same conclusion for UTCCR....not been able to find anything beyond first instance that may assist you so you may have to be a little novel in your approach and perhaps (if it seems the case is going the wrong way) steer the DJ toward its reconstruction of the account at PPI redress. Whether it works is another matter entirely but you could suggest that the charges (having been removed in calculating quantum) in question were only applied at that instant.

 

What you are really aiming for is to reverse the burden to the other side to show fairness of term, if you can overcome that hurdle it should make the sensible decision to take a few minutes and compromise the case. The problem is that it will try every trick in the book before considering common sense.

[up2meears]

Thanks Mike,

 

A lot of their ws is about the PPI. Now claiming that their upholding of my complaint was a goodwill refund and it wasn't miss-sold because I requested it during the online application process and how after I cashed the cheque disputed the amount (disputed after MBNAs dodgy calcs had come to light) so I have been doing myself some 'flashcard' sort of notes to explain myself for example letting the judge know that the PPI was only mentioned in my PoC to explain how the charges had come about and that the PPI re-dress has nothing to do with the case except for clout that they had been applied by mistake.

 

All they have really talked about in regards to the charges is about my original complaint and their response to them being fair yatta yatta.

 

They have mentioned the DISP policy and said ' The defendant believes that the fees were not caused by the ppi but by the way the claimant conducted the account' - in other words when they allowed me to get into debt when I was on long term sick leave with only benefits and did not follow the guidelines set out by the OFT but instead ignored my pleas for help, and bombarded me with charges and hundreds of pounds of interest knowing I had no means of keeping up.

 

I have also produced a spreadsheet showing the account balance (when charged) with the ppi, and how when without the ppi my account is under its credit limit on every single occasion.

 

Your comments made about the Court believing the case has some merit or I wouldn't have a trial date, is very reassuring. I have thought this myself as I have seen many people give up on cases because the judge has mentioned 'the claimant has little chance of success' Thank you for shining a little beam of hope

 

Once I have got my 'flashcards' in order I will post up for comments

 

Thanks again

Up2

[up2meears]

I am also hoping that once I show the court the charges were applied due to the PPI the fact that they admitted it was miss-sold (even though they are denying it now) and refunded the premiums, should re-start the SB clock ticking. Or does admittance only apply when we make an acknowledgement or payment?

[Mike_hawk]

Hi Up2

 

This is the case I was thinking of http://www.bailii.org/ew/cases/EWHC/Ch/2009/305.html

 

Makes for interesting reading re specialty, monies already paid and its effect on the LA

[up2meears]

Thanks Mike,

 

I will have a read of that.

 

Not sure if this will or will not be used at the hearing but formed part of my PoC so preparing for it anyway. They are denying harassment (as expected) so although I have pointed out their wrong doing in my ws and provided copies of the letters sent I am also looking for evidence of their breech here. I have already extracted the parts from the OFT debt collection guidance 2003 along with using section 40 of the Justice of Administration act, and was wondering if there is something like BCOBS that could be used (in effect around 2004)

 

Thanks

Up2

[up2meears]

Hi Mike,

 

Does the other side usually tell you who they are instructing to represent them in court?

 

Thanks

Up2

[Mike_hawk]

It's counsel should as there would be a change of service address, the court would normally serve a change notice on you assuming the details were filed in good time prior to hearing.

[up2meears]

Okay thanks Mike,

 

MBNA sent me an email today telling me who they have instructed to represent them and to offer me the same offer as before to settle.

 

The chambers this guy is from is over a hundred miles away. Is that normal?

 

Thanks

Up2

[Mike_hawk]

My last one came down from Oldham to Canterbury (2 hours late bless him), others have travelled further...so yes, I'd say its perfectly usual. You generally find that most large corporations retain counsel which can provide it with advice on a number of matters not just those related to consumer credit. If they have offices 100 miles away, so be it, it provides the service from its nearest office at the lowest cost. Bear in mind, they don't always get paid beyond the contractually agreed fee scale if on the SCT so if s/he rocks up with the hump you'll know why.

[up2meears]

Oh dear lol,

 

I'll look for Mr grumpy red face when I get there . If the case lasts the whole two hours he'll be even grumpier cos he'll be travelling home in rush hour traffic

 

Oh well, thanks for answering the q Mike

 

Up2

[Mike_hawk]

Just to jog my memory, how much are you claiming and how much is it offering?

[up2meears]

I've not disclosed on the thread how much I'm claiming Mike, but they are offering about a 1/5 - which doesn't cover the charges and court fees

[up2meears]

Previous post deleted:

 

As PPI is a product, would it be classed as a transaction or a charge?

 

Thanks

Up2

[Mike_hawk]

Its a transaction/purchase

[up2meears]

Okay Mike, thanks.

 

The post I deleted above was deleted because I misread one of the terms, however now you have confirmed the PPI would be a transaction I have amended it to reflect the correct term (sorry been up since 4.30 and have had about four cups of coffee)

 

 

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.

 

 

Here is the full statement regarding charges and PPI

 

“We are confident that our PPI redress is correct; we have considered our methodology carefully and in detail. Our confidence is reinforced through external independent reviews and advice which has supported the way we approach default fees.

 

“Fees of this nature are required to be refunded when they are “caused” by the missale of PPI. Not all credit card fees and charges are the same between issuers and there are aspects of MBNA’s fees and charges and the way they are charged (or not charged) which are highly relevant to whether MBNA might be liable to refund them. For example, 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.”

 

MBNA has always worked to ensure that its PPI redress calculations and the payments it makes to customers follow guidance issued by the Financial Conduct Authority (FCA) and are informed by the decisions of the Financial Ombudsman Service (FOS).

 

Nothing has changed in relation to the way MBNA reviews, calculates and pays its redress on PPI complaints, so customers do not need to do anything following these reports.

 

I have just been going through the terms and conditions and found the following under section 8 Debits, Credits:

 

8.1 We will Debit to the account the amount of:

(a) any transaction after the payment system has notified us of it

(b) any interest due under this agreement on the statement date: and

© any other charge due under this agreement on the date that it becomes due

 

Can this be used to show that these charges were applied by mistake and as such the LA does not apply?

 

Thanks

Up2

[Old Cogger]

Believe MBNA charges are being reviewed bu FCA?

[up2meears]

Believe MBNA charges are being reviewed bu FCA?

 

Really? About time.

 

Is there somewhere which says this? Have been looking but can't find - would be handy for court