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miavega

MBNA pre 6 years

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HI all

 

have successfully got 6 years of charges back from MBNA as well as 27.9% interest plus 8% interest (their mistake I think) but have now been chasing for older charges. Have copied my last letter below and as the deadline is today I have rung them and am awaiting repsonse this afternoon.

 

Any comments or advice VERY gratefully received......

 

Many thanks for your letter dated 5th February 2007. Apologies accepted for the mistakes in previous correspondence from yourselves. I was grateful to receive the full breakdown as I was unclear where the additional refund you offered recently had come from. It is now clear this was the s69 8% interest courts are currently paying on top of the exact claim amounts plus contractual compound interest.

I believe the offer made to MBNA in my letter dated 5th January 2007 was both fair and reasonable. As you have declined this offer I have no choice but to pursue through the courts the total claim of £2428.79 for the first four years of my banking history with your organisation. This amount has now grown due to the additional days of interest so the new total is now £2506.25 based on a medium range interest rate of 15.4%. Schedule attached.

The offer made by myself to you re 50% has now been withdrawn and I will be submitting my claim via Moneyclaim online on 15th March. As I am sure you have all my correspondence on file there is little merit in me reiterating where this figure has been derived from.

The following are the legal arguments that I believe back my contention that this money should be refunded to me along with an excerpt from the Statute of Limitations.

Fraud, concealment and mistake

32 Postponement of limitation period in case of fraud, concealment or

mistake

(1) Subject to subsections (3) and (4A) below, where in the case of any

action for which a period of limitation is prescribed by this Act,

either--

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has

been deliberately concealed from him by the defendant;

or

© the action is for relief from the consequences of a

mistake;

1) As the OFT has stated that the principles underlying its report on credit card default charges are analogous to standard default charges in bank current accounts, I contend that it is likely that MBNA have concealed the punitive nature of current account default charges from me and other customers. I therefore further contend that Section 32(1)(b) of the Limitation Act (1980) applies and that my claim is therefore not time barred.

Cases such as Cave vs Robinson Jarvis & Rolf highlight that in such a case the period of limitation does not run until the plaintiff discovers the concealment. I also contend it was not ignorance of the law which prevented me taking action sooner but rather that the validity of the original contract clauses under law were initially and then continually misrepresented that your charges equated to your actual costs. I trusted your representation of your rights under law and this amounts to concealment.

I therefore contend my claim is not time barred by virtue of section 32(1)(b) due to concealment. In my court submission I will of course point out that in order to determine whether this view is correct or not it may be necessary for the Court to consider MBNA’s management accounting information and decision making processes governing the setting of charges. I will be seeking disclosure of this information.

2) The claimant (myself) as a lay person with no legal training or expertise could not be expected to have any legal knowledge to question the validity and the lawfulness of these charges which were applied to my account over the years shown as per the schedule of charges. MBNA acting as my fiduciary must at some point have made a business decision to apply a charge to a customer account where a breach of contract took place, which was disproportionate to MBNA’s actual losses for that breach. In making this decision it would reasonably be expected that a company operating in such a position of high trust and fiduciary responsibility would have taken legal counsel when making such a decision. If legal counsel was sought then the decision was made in the full knowledge that said charges were unlawful and this was concealed from your customers and again section 32(1)(b) of the Limitation Act 1980 should apply.

3) If legal counsel was not sought on this issue then I believe MBNA did not act with the reasonable diligence that would be expected of an experienced fiduciary, and that your failure to seek legal counsel should have been declared when you did eventually seek legal counsel, and that by not making such a declaration MBNA have continued to show deliberate concealment and therefore section 32(1)(b) of the Limitation Act 1980 should apply.

4) If legal action was not sought and MBNA were genuinely unaware that said charges were unlawful then I contend that section 32(1)© of said Act should apply.

5) In April 2006 the Office of Fair Trading published “Calculating Fair Default Charges in Credit Card Contracts. Paragraph 1.3 states

The statement sets out our view of the law which is in essence that default charge provisions are open to challenge on grounds of unfairness if they have the object of raising more in revenue than is reasonably expected to be necessary to recover certain limited administrative costs incurred by the credit card issuer.”

Therefore I believe the issue of unjust enrichment is important here. The essence of this principle is that it is unjust for a person to retain a benefit which he has received at the expense of another, without any legal ground to justify its retention, which that other person did not intend him to receive.

Furthermore (Zwiegert &Kotz p.32) – if the payer paid in the mistaken belief that he was under a duty to pay, it is prima facie unjust that the payee should be allowed to retain what he received.

As stated above this claim will be submitted on 15th March. The delay in submission is simply to allow yourselves to respond to this letter so the courts can see I have given you every chance to resolve this without resorting to legal action.

Obviously once this claim has been allocated to a court I will be furnishing both yourself and the court with my full submissions and legal arguments.

Yours sincerely

:cool: :cool: :cool: :cool: :cool:


NatWest Bank charges

01/10/06 S.A.R - (Subject Access Request) sent

06/10/06 Statements arrived

17/10/06 Prelim letter sent claiming £929

23/10/06 Bog off letter received

25/10/06 LBA sent

01/11/06 Second bog off letter received

 

MBNA Credit Card

17/10/06 S.A.R - (Subject Access Request) + £10 cheque sent

26/10/06 Letter telling me they will respond by Nov 16th

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No-one wants to talk to me but my letter has worked!!! They have cpitualted on the disputed four years from 1996-2000 and paid me the £105 back (letter showed average charges as they were unable to tell me exactly what I had been charged in that period until yesterday when they suddenly "found" the figures) which has increased to 1500 with 27.9% compounded contractual interest plus the 8% court interest.

 

thanks MBNA but most of all thanks CAG - donation on its way when I get the cheque......


NatWest Bank charges

01/10/06 S.A.R - (Subject Access Request) sent

06/10/06 Statements arrived

17/10/06 Prelim letter sent claiming £929

23/10/06 Bog off letter received

25/10/06 LBA sent

01/11/06 Second bog off letter received

 

MBNA Credit Card

17/10/06 S.A.R - (Subject Access Request) + £10 cheque sent

26/10/06 Letter telling me they will respond by Nov 16th

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