MBNA Vs Autodrome - CCJ set aside - Charges - charging order - DN - PPI and CCA...

[Autodrome]

Hi all,

 

bit of a mixed up one this...

 

So I ran out of cash stopped paying my Thomas Cook branded CC bill, lots of charges etc, you know the story. But when I sat down to review it I realised that there was PPI on this account, and with the media coverage of the issue I thought why not see if I was mis-sold as it is not the sort of thing I ever sign up for.

 

Followed the process for reclaiming PPI, and highlighted that there was an outstanding debt of about £2,000. But blow me - after lots and lots of stalling letters from them MBNA (and a few threatening ones from Optima Legal) they upheld the complaint and explained that they owed me a big chunk of cash (lets say £2,500) (no mention made of the outstanding). Cheque arrives I cash it and thats the end of it.

 

Err no a few weeks later I get the letter through saying I have a CCJ against me for the £2,000

 

Hang on a minute I thought. The total amount was in dispute as the PPI + interest was more than the debt. Beyond that MBNA made no mention of the debt still existing.

 

So I apply to have the judgement set aside. And complain to FOS about the situation. And ask MBNA to repay the £500 or penalty charges (they say no).

 

Optima Legal apply for an interim charging order and get it.

 

Finally the FOS get back and say they can't do anything as a court judgement has been made.

 

MBNA's court bundle arrives and in the middle of it is what they claim to be the credit agreement. But I'm pretty sure it lacks the prescribed terms, and anyway it is clearly a reconstituted agreement.

 

So off we go to court, the judge can't understand the MBNA calculations for the debt, can't be bothered to delve into the agreement and gets angry with the lawyer optima has hired. Sets the Judgement aside and orders MBNA to show original docs, in a upcoming case to be heard later this year.

 

So here we are with a whole bunch of confusing questions

 

1. Chasing a debt in dispute - can the court do anything about this?

 

2. Penalty charges - they are all £12, the Optima lawyer and judge said I should be very careful about these as it is hard to convince a judge that £12 is unfair or constitutes a penalty?

 

3. Agreement. What EXACT things must appear (in light of recent cases) and they must produce an original (likely?) - this is in court remember in a case they have brought no the cumbling concrete of Autodrome (me)

 

4. Costs if I win - if I win what can I claim in terms of costs?

 

5. Secret Commission, I signed up for the card at an Airport, on the agreement it mentions the Gael Partnership. Does anyone have any idea who they are and what they got out of it. Does it count as a secret commission? further more I never ticked the PPI box but they charged it anyway - did they earn commission or pay out commission?

 

6. FOS is it worth going back to them now the CCJ has been set aside.?

 

7. the interim charging order what do I need to do about that?

 

8. Default Notice - I never got one - does it matter?

[citizenB]

A default notice is important yes, as it is the the action prior to them being able to take further action.. eg.. terminate the account, issue a court claim.

 

A default notice must be issued under s87(1) of the act - it must allow you 14 clear days to remedy the breach - it must allow sufficient time for the posting of that document to you.

 

2 business days for 1st class mail and 4 business days for 2nd or UK mail services. Business days are Monday to Friday - not to include weekends or bank holidays.

 

It must only ask for genuine arrears - so any default /penalty charges should not be included as they are not arrears.

 

It must include the OFT statement and enclose the OFT fact sheet.

 

What dates are they claiming were on the DN and by what date are they suggesing they gave for remedying the default ?

 

You will find, looking around the forums that MBNA had the clever habit of sending out DNs on a Friday and then not allowing an extra 2 days for the weekend. Or sending the DN before a Public Holiday and not allowing time for those as well.

 

Another habit of theirs was to terminate the account prior to the remedy date. This makes a nonsense of the statement within the DN which states.. "if you remedy the breach before the date shown, it will be as if the default never took place"

 

Costs : -

 

Will this be held in Small claims or Fast track court eg.. is the sum claimed over or under £5,000.

 

If in small claims you will be able to claim:-

 

£18.00 per hour for LiP rates

travel to and from court - parking if you go via your own vehicle

paper, ink, photocopying, printing, postage for your bundles

If you have to take an unpaid day from your place of work - I think the rate is £90.00 per day now.

If you have made any applications - you can reclaim the cost of those.

[Autodrome]

Cool thanks for that. No default notice has been sent, no mention made of it. Nothing.

 

It must only ask for genuine arrears - so any default /penalty charges should not be included as they are not arrears.

 

The debt was entirely made up of penalty charges and PPI. So if no default notice was sent then what?

 

Will this be held in Small claims or Fast track court eg.. is the sum claimed over or under £5,000

 

Small claims - is there a maximum that they can claim from me in costs?

[Autodrome]

Thanks for this help - I want to make MBNA pay the price of acting in such a terrible way.

[citizenB]

If in the small claim court, there are limited costs that can be awarded unless on party to the claim can be found to have been unreasonable.

 

If the claim is made up entirely of PPI and penalty charges, then I imagine you can counterclaim.

 

Have you made a request for the refund of the PPI - in what manner was it mis sold ?

[Autodrome]

Sorry I wasn't clear they PPI complaint was upheld and refunded as a cheque. But yes the claim seem to be made up of penalty charges and ?

[Autodrome]

Ah yes MBNA has also admitted in writing that I did not fill in the credit agreement, it was filled in by a sales rep and I just signed it, they claim that the T&C's were on the other side of the form, though have not shown the original form and I was never shown them.

[Autodrome]

Indeed the court bundle they have sent claims that they have "a right to pursue a debt even if it is in dispute" I'm sure that they do not have that right?

[vint1954]

They have a right to persue the debt, but not to enforce. Enforcement is getting a CJ.

 

It would be worth looking out your DN, if you can find it. They are usually wrong. The Default Notice should state that it is issued under s87 of the consumer credit act.

 

Was there a DN in their bundle.

 

Did you issue an s78 request?

 

When did you take the card out. If it is post 2007, then it is not possible to follow some routes in defence.

 

Having had the CCJ set aside, are you now entering a defence?

[citizenB]

Ah yes MBNA has also admitted in writing that I did not fill in the credit agreement, it was filled in by a sales rep and I just signed it, they claim that the T&C's were on the other side of the form, though have not shown the original form and I was never shown them.

 

Hmmm, a lot of those forms only had advertising on the back! IMHO, you should have been given a copy at the time.

[vint1954]

Hmmm, a lot of those forms only had advertising on the back! IMHO, you should have been given a copy at the time.

 

Indeed CB, they need to present the full Terms at the time of signing. The terms that they have issued as being the rear of the application, usually refer to terms in another document. Worth checking as the Claimant can fail on that point (s61) therefore the court cannot inforce, s127(3), if the agreemnt is pre April 2007.

 

As you say, the application form probably had an advert on the back to win a holiday or the like.

 

It is worth checking the the terms that they claim were on the rear, as they often do not refer to payment holidays, 0% interest for a period etc, which could have been available at the opening of the account.

[Autodrome]

There was no Default Notice. Never got one. Nothing in the bundle either - I assume it was never done.

 

They have been asked to show the proper agreement in court. I have raised S127(3). They have not really responded.

 

No S78 request issued. No need it was in court before I knew anything about it.

 

The agreement is from 2004 so the post '07 stuff not relevant.

 

I need to put together a counter schedule of charges and PPI, I would like to go for compound interest but I'm not sure of the argument I could make for that? I know there are good arguments I just don't know them. Also I'm baffled at calculating the compound interest. How do you do it when the rate they charge you fluctuates throughout the term?

[Autodrome]

Bit of an update, went off to court having raised a number of issues, and the judge immediately demanded that MBNA (who had hired a proper solicitor) produce the original agreement, the Solicitor asked for an adjournment and after pleading every which way with the Judge just managed to get one, but if MBNA cannot produce the original agreement in court (not a copy, not a recon the actual agreement with my sig and their sig on it) then the case will be thrown out.

 

As I'm pretty certain that they could not produce the original agreement - they will either drop the case / offer to settle or get the case thrown out next time round what does it mean for charges and underpaid interest on PPI? how do I claim them?

 

Also the judge said S127(3) was no longer in force at all - was he mistaken or have I missed some legislation?

[Old Cogger]

Bit of an update, went off to court having raised a number of issues, and the judge immediately demanded that MBNA (who had hired a proper solicitor) produce the original agreement, the Solicitor asked for an adjournment and after pleading every which way with the Judge just managed to get one, but if MBNA cannot produce the original agreement in court (not a copy, not a recon the actual agreement with my sig and their sig on it) then the case will be thrown out.

 

As I'm pretty certain that they could not produce the original agreement - they will either drop the case / offer to settle or get the case thrown out next time round what does it mean for charges and underpaid interest on PPI? how do I claim them?

 

Also the judge said S127(3) was no longer in force at all - was he mistaken or have I missed some legislation?

 

 

Only on CCAs after 2007 I believe.

[AndyOrch]

If the alleged Agreement was taken out/made before 06/04/2007 then s127(3) still applies and it is Regulated by the Consumer Credit Act 1974.

 

 

Schedule 3 section 11 of the CCA 2006 makes it clear that S127(3-5) are not repealed for agreements entered into before 6th April 2007.

 

Regards

 

Andy