MBNA Charges - refused

[Mike_hawk]

I file mine at [email protected] for part 7 claims without problem [yet]

 

Might be useful to track down the court manager at Chester and get the case transferred to your home court

[Mike_hawk]

Moneyclaim by definition would fall within part 7, see CPR 7 and practice directions 7A thru 7E.... yours being 7E

 

Contact details for Chester can be found here https://courttribunalfinder.service.gov.uk/courts/chester-civil-justice-centre

 

Hopefully you'll get someone sensible on the other end of the line and s/he will arrange transfer without further cause to intervene

 

Bulk center guidance notes here http://www.justice.gov.uk/downloads/courts/mcol-quickstart-guide.pdf page 16 for filing of DQ

 

N180's are still served with form stamp N149A at the footer.... if only to add to the confusion :-?

[Mike_hawk]

Don't forget it is also subject to CPR 26.3 and 26.6....... service of DQ, no service equals further cause to deny relief

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part26#26.3

[Mike_hawk]

It may get away with it, doubtful if you or I would though!

 

Did it serve a copy on you and if so is it noted within its ws?

[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?

[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.

[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?

[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?

[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?

[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

[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?

[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.

[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.

[Mike_hawk]

I think that would be useful, they may have first

hand experience of MBNA's calcs.

 

I'm just a little cautious that they may have already settled some/all of the charges which would leave you with egg on your face at the

hearing to set aside.

 

Has it noted the PPI issue and its effect on charges within its ws?

[Mike_hawk]

I've taken a look at the first few charges and can find no evidence [on the papers] that they have been credited.

 

The point to get across at the set aside would ideally be that [technical service failings aside] it has no defence if it previously failed to accurately reconstruct the account. Assuming your credit limit was circa £3k during 2001 [no over limit fees for the period June thru Nov 01 would indicate this] then each of the charges would naturally fall to be credited [concomitant]

 

Have you spoken to it's sols regarding this? I really can't see it's in anyone's interest to go back to court when the likelihood is that it will cost both parties time and money for the same result as the default judgment.

[Mike_hawk]

If you look at your PPI redress sheet the charges tend to stand out as unaccounted for.

 

As an example; you have an £18.00 overlimit fee applied at May 2001 [from your schedule of charges]...... If you look at the PPI sheet for the period you can see at May 2001 the running redress is £131.05..... If you then refer to June 2001 [the accounting period for redress of the previous months PPI,interest and charges] the running redress is now at £152.11, an increase of £21.06 [£19.14 PPI + £1.92 associated interest]

 

Who are the sols and do you have an email address and/or a contact name/number for the case handler?

 

Bear in mind that its counsel will unlikely have any information at all regarding any previous PPI settlement, its instruction will be purely to argue for set aside of judgment.

 

Transfer........ phone the court and ask if it has acted in the matter yet. Assuming the other side requested a stay of enforcement within its application there's nothing left for Chester to consider until the set aside issue has been dealt with at your home court.

[Mike_hawk]

MBNA do have a handful of specialists in house, would her initials be J.A.P?

 

It may be useful to give them a call and ask if she is prepared to discuss off the record, it just seems sensible to try to settle this before having to take a day out for court....... that doesn't mean you end up with less than the judgment, it may however mean that the parties agree to compromise the case by consenting to set aside with terms to include its settlement of the claim.

[Mike_hawk]

Well I dunno about the A but the J and P are in the right place lol

 

Anne is her middle name...... never spoken to her but understand she is very approachable and takes a pragmatic approach to all cases she becomes involved with.

I don't know if I would want to call her, I think I would prefer an email in case I get all tongue tied and make a pigs ear of the conversation, plus I'll probably forget what was said as soon as I hang up. At least with an email, I can edit to suit if it's not right and I will have a copy of it.

 

Emails fine, head it 'without prejudice' and outline your points concisely establishing a means to settle the case

 

I will try and get this ready tomorrow, and then at least I'll hopefully know what's happening with the transfer.

 

How would I head the letter? would it be without prejudice? or something else?

 

Sorry I ask another question each time you answer one - I don't mean to be a pain, I promise

 

Up2

 

Type your draft on here and I'll take a look before you send

[Mike_hawk]

Probably needs to refer to the papers prior to a decision, without sight of the full application we don't know if it requested stay of execution of the warrant or if it is effectively still live. Have you spoken to the bailiffs at Chester to find out if the court is acting on your warrant request?

[Mike_hawk]

Bit too much info, all you really need to say is that you're prepared to compromise..... worth mentioning the previous redress and effect on charges if only to get it to focus on the facts

 

 

 

Dear Ms Solicitor,

Without Prejudice

 

In order to avoid further legal costs in the above case I make the following offer;

 

The business agree to settle the above claim in the sum of £………… to include all legal costs to date, in consideration of same I will consent to set judgment aside, further agreeing not to sue the business for any claim whether or not currently in my contemplation in relation to the agreement or other reason arising out of the agreement.

 

It should be noted, absent any compromise I will vigorously reject any argument that the case be set aside on a technicality. The business having no substantive defence and by it’s own admission within PPI redress those breaches of agreement positions which the charges in question are alleged to reflect were not effective. The business defending on the basis that it wishes to retain the benefit of unjust enrichment.

 

I am sure you will agree that this case is ripe for settlement and the offer is both pragmatic and fair to all parties in concluding the claim.

[Mike_hawk]

I have received the Order confirming the hearing has been transferred to my local Court

 

Excellent....... and about bliddy time

 

I'm in the process of finishing off my WS. I assume I send it once I've had notice of the hearing?

 

Yep, wait on the formal notice of hearing before filing/serving witness statement

 

I also sent the email to the solicitor so maybe it will all be over soon

 

Up2

 

She may not respond at all so don't get you hopes up, add the details of the PPI redress to your w/s and annex the statement it supplied you with. Usually you wouldn't bring anything new to proceedings but as the crux of the case centres on the fairness of any such charges and the manner of breaches within the agreement it would seem sensible to identify that you believe, in the event of set aside, it has no defence to the claim.

[Mike_hawk]

Could you post a copy of your revised w/s when you're happy with it's content, attach in word/ .doc format again if you can

[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.

[Mike_hawk]

Could you post a copy of the schedule it proposes

[Mike_hawk]

Terms of tomlin order