MBNA Charges - refused

[Mike_hawk]

Simple interest only for charges so the 20% would be divided by 12 charging cycles in a year based on mbna's usual terms for interest... £25.00 charge would incur something like 42p interest in the first charging period so if you repaid at 2% you'd pay circa 50p and reduce the principal charge by 8p. Even without interest applied an element of the charge would still persist at month 55 (reducing effect of balance/min payment).

 

I think if you could view each charge as a purchase you would see how ridiculous it is for a creditor to use the LA as a shield when the 'purchase' repayment continues to be demanded (and paid at relatively small instalments) long into the future.

 

If pressed on the issue it will need to show any/all notices of variation and those at issue of new credit token containing the contractual charge. If it's charging £25.00 where is your agreement or meeting of minds agreeing same?

 

Defaulting account, not necessarily.... you only have to look at the Egg saga's on here to see that perfectly serviced accounts can be assigned without defaulting.

[Mike_hawk]

Seems sensible to ask your mate at MBNA to supply the missing data. I wouldn't be inclined to compile a history of how you believe payments reconcile with balance demands, it is relying on limitation and/or the terms applied, you only really need show the DJ that no bar exists (and for him to agree) to reverse the burden of showing whether the contractual term/s were fair and not penury at application.

[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

[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.

[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.

[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

[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.

[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.

[Mike_hawk]

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

[Mike_hawk]

Its a transaction/purchase

[Mike_hawk]

8.1 certainly appears to provide for its application of charges...last by interpretation and common sense

 

I understand the FCA are reviewing MBNA's redress calcs but its not exactly public knowledge as yet beyond the small volume 'pressure' groups on here and other sites who have been pressing the FCA and FOS to intervene since early this year.

[Mike_hawk]

Any info would probably be treated as hearsay, really not sure the court would entertain any additional witness evidence this late in the day and I can't imagine the FCA showing its cards by supplying anyone with the merest hint as to its investigation process. From what I have seen of its correspondence to date it just seems to be at the stage of collating complaints data for testing calculations and reconciling with DISP.

 

Having said that, if the other side is using its t&c as a shield along with its public statement regarding Ind reviews etc it should really be pressed to allow inspection of any documents its relying on.

[Mike_hawk]

I think you understand the argument, press releases prob won't hold much water but using its terms; point of charge, future allocation of payments may.

 

Use your attachment as a prompt and be prepared for any/all possible counter intuitive rebuttals from the other side. You need to think about what novel arguments it may use to retain its position and how you can show the court it lacks candour.

[Mike_hawk]

You gave it a go and whilst the result is disappointing, its good to see the DJ agreeing with the PPI reconstruction date moving the bar.

 

I think he had a fair point in proving the loss, your original particulars pressed for what was in effect a setting off... with the other side having no balance post PPI redress and you (inherently) having no documentary evidence of payments to it post 2012 he couldn't really find in your favour. As far as I can gather from your post, he appeared to view each charge as a new event post PPI, ergo without payment toward each there was no evidence of loss. Definitely a lesson learned for everyone who benefits from reading your thread in the future. I can't imagine every DJ in every case will interpret the facts as yours did today but its certainly going to be a useful to many.

 

Anyway, onwards and upwards.... this may seem nonsensical at the moment but please do file a complaint with the fos regarding its calcs for PPI redress.