Court next month

[wmr]

Thanks so much for your welcome and greeting!
I am due back in Court next month, with my application for "Permission To Appeal" against a "SJ", that was given to MBNA against me and am fighting this by myself.

Briefly: Only Application Form signed...no agreement sent (2000).
2: DN sent to me under section 87/8 demanding arrears. (a) Only 10 days given for remedy. (b) Amount of claim was 22% out. (c) PPI Insurance not requested but amount of claim on DN included PPI which had not been returned for over 10 years.

They sent a Barrister who got the Judge to agree that NO DN is necessary to terminate.

This was shown on the Judges Order as part of the reason for allowing "SJ"..

Part of my appeal will be...as the DN as issued under a section 87 of the CCA a "DN" notice is required under legislation. Only under section 98 (I believe) can you terminate without a DN. In any case there has to be a notice issued stating that the account is being terminated under this section. Also the Judge awarded legal fees of almost £9000 fora "SJ" application first hearing.

As I have some 4 weeks prior to going back to Court any advice would be most appreciated. Thanks.

[IF]

Re: Court next month

I've moved your post wmr for more advice and support.

If...x

[Pixie]

Re: Court next month

Sorry I can't give you any advice as I'm not very well up on the legal side of things but I'm sure that someone will be along who will be able to offer you some help.

[Undercover Elsa]

Re: Court next month

Hi wmr,
A very warm welcome to AAD!

Presumably this is a credit card?
Looks like they are trying to rely on the fact that running account credit can be terminated by the creditor at any time (subject to a relevant clause in the T&C's). Hence it can be terminated without a DN..and then the account holder would simply carry on paying by monthly instalments as per contract.
BUT as far as I am aware if they want to enforce payment of the full amount before it is due then they should still need to issue a default notice.
Also, as you say, if their termination notice states that it is terminated due to failure to comply with a default notice, then that, in my view, should stand, but whether a judge would agree is another matter.

Your situation reflects some of the Brandon issues, and afaik the details of the appeal haven't been released yet, but Paul may know otherwise.

Shepherdess x

[5corpio]

Re: Court next month

BUMP!

[mystery1]

Re: Court next month

Rules Practice Directions - Civil Procedure Rules

Part 52 etc for appeals.


Brandon is a must read for you.http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html


Swayne is helpful too Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

Harrison http://www.bailii.org/ew/cases/EWHC/...e/2011/B3.html Para 75


M1

[IF]

Re: Court next month

Unfortunately this thread is a year old hopefully wmr will come back and let us know how they got on

[wmr]

Re: Court next month

Hello and thank you for your email. I must apologise for not getting back and can't believe it is a year since my posting.

I have been in "battle" since then and still am, and there is so much to report, so I will be back as soon as I can with up-date. ....Hopefully in the next few days, as I am preparing for my turn to sue now !

Thanks for the "timely" reminder and again I do apologise.

wmr

[wmr]

Re: Court next month

Hello everyone and thanks for your welcome back.

I enclose a transcript of what has happened for quickness and perhaps I could invite some further helpful advice at the bottom of the transcript.

Having not been on the Forum for many months,
having had some great help in 2010 from the Forum,
and having been to Court for almost two years fighting this shower,
and resulting in 3 Court hearings for "Summary Judgment",
which included "unlawful" taking of PPI from me,
I now have a "Charging Order" placed on my home for a large amount
which includes Barristers charges (sent by MBNA) for a "Summary Hearing" !

I know from recent reading on the Forum that there are some brilliant people in this Forum
and I now would like some additional help please to enable me to get the papers off to Court for an action against MBNA for my "PPI". To recap:-

In October 2000 filled in a "Application Form" for a Credit Card.
The section for "PPI" I just left blank as being a "sole trader" knew I could not claim. (Not Limited Company).

From November 2000 they started taking "PPI".
I noted this only around the following April in the debits (due to driving a 1000 miles a week on my business),
and a total of 5 letters from April 2001 to April 2002,
pointing out that I had not requested PPI,
and to stop taking it and return it.

All these letters were ignored except the last one in April 2002
which stated that I would be reporting this to the appropriate departments.

It suddenly stopped in April 2002, after taking premiums for 18 months total £649:38.
(In Court they even accused me of forging these letters sent 10 years previously).

This was never returned and January 2010 MBNA through Optima took me to Court for a "Summary Judgment" of £6606,
which included PPI of £649.38 not returned from Nov 2000 onwards.
(All of these details are in my original thread "WMR -MBNA help wanted- Jan 2010).

In November 2009, they agreed to stop charging interest, and sent "Default Notice" (which included the PPI- illegally taken)
and then although they agreed a monthly payment, went straight ahead and took Court action although they said they would not.

In my defence statement I pointed out that the figure included £649.38 plus accrued interest not returned for almost 10 years,
and suddenly in the April period of 2010 Optima said that I had £1508.99 returned and that was the end of my defence regards PPI.

I sent 17 letters until the hearing at county court asking for a complete breakdown so that I could calculate the correct figures before going to the hearing.
All my letters were ignored.

At the hearing they sent a Barrister from London (charging me £2500) and he sweet talked the judge (an old guy- with respect)
who allowed himself to be led like a donkey by the Barrister,
who said that MBNA were being generous in crediting me £1508.99 !

I pointed out that this was an entirely separate matter as the PPI was taken.
..and absolutely no Insurance paperwork or documents were ever sent to me.

I said that all the PPI should be returned to me and NOT credited to the account.

I quoted "Lynn Thorius v MBNA" case where the judge ruled that only if she saw evidence of requesting PPI, would she order a credit to account.

The judge in my case said that I should be appreciative of the fact "MBNA" were being generous and be pleased that as only £649.38 was taken
and £1508.99 given me why should I complain.
i objected and asked him to investigate the breakdown and he said he would not.

Optima even tried to bill me for £500 vat for the Barrister.
I told the Judge that the vat was not my responsibility as the Barrister was not mine.
I told him I knew about vat and I would not accept this charge.
He then agreed to take that off the claim as I stated I would report this to the "HM Customs & Excise" as I felt that Optima would also claim this on their vat return,
and have the Defendant to pay it also through the Court.
(Something for members to watch by the way !).
The Barrister said perhaps my clients made a mistake on the vat!

At the "Charging Order" hearing in May,
thankfully I had a very sensible lady Judge who looked at all my letters regarding the "PPI" and she admitted that I had
.."unresolved issues with MBNA".
.if I wanted to take it up with them regards the PPI.

She went as far as to state that if she had the power to reverse the past rulings she would but could not.
She also went as far as to say to me..
.."Don't forget you want damages also"!
I fonly she had been my judge at the original SJ hearing eh?

She also (I should mention) ordered MBNA to give myself and the Court a complete breakdown of how they got the figure of £1508.99.
Thankfully to her they had to give me this and it came back as...:

PPI Amount Nov 2000 to May 2002: £649:38
Refund Interest................. ........ £366.81
Total.................... ...................£1016: 81
Total Paid (Being Generous) £1508.99
------------ This amount represents Nov 2000 to March 2010 According to them due.
Even at 8% standard calculation this is still incorrect !

MY QUESTION FOR HELP PLEASE:

Using your spreadsheets as I have (paid interest at compound rate of between 14.9% and 24.9% (I have used 20% as a figure)
I make it to-date around £4300 plus interest in "restitution". I would mention that for 6 months the account was in credit and my spreadsheet shows around £80 at 8%!

Do I make the claim for £649.38 taken from Nov 2000 at compound rate of 20% to date (This month) plus interest in Restitution ?

OR

£649.38 from Nov 2000 to end of charges of PPI - being April 2002. Then start again from April 2002 on a spreadsheet and calculate to date, OR only until they stopped charging interest on the account in NOV 2009 ?

Then deduct the £1508.99 paid (or was it?) as they credited it back to themselves reducing the amount claimed although no evidence of any documentation of PPI Insurance Documents, although requested 17 times in writing !

THEN

having deducted the £1508.99 make this the claim figure total?. OR Would the Court look at this and rule on it ?

FOOTNOTE: I sent MBNA a demand and the spreadsheets claiming amounts "Compound", on July2nd, and had no response at all.
I also emailed the CEO Mr O'Doherty with copy of my demand, and also received no acknowledgment.

Sent a 14 day waring on July 21st (Recorded),
no response till 4th August saying they wanted 28 days to look at it.
4 days after that I received a "computer generated" letter stating I asked for ppi etc, and I was not entitled to a refund.

I responded stating that as they had sent "purported" refund in March 2010 of £1508.99
they had admitted to liability as if I was not entitled then why did they repay only part of what I should have had.

I also sent a further email to the CEO that day and stated it was not business like (we know they are not of course),
to ignore customers letters as CEO even he had not the courtesy to acknowledge.

Within 3 hours I had an email back from stating that he was sorry that I had to write to him twice
and he had instructed the departments concerned to look into my problem.

An hour after that I had another email from a Personal PR to the CEO saying the same,
then an hour after another one from a Mr Ulwin-Smith an executive in the PPI dept,
saying that he would be personally looking at matters and would I give him a week !

5pm that same day the 'phone went a lady from his dept, asked me to go through the problem.

I told her that they had realms of paper and letters stating the problem.
She said she would have to go to Optima also and would I give her 7 days and she promised to ring the following Monday.

I emphasised that I was going to Court, and her word were.."I don't think we will be doing that, matters would be sorted out without that".

The following Monday she again 'phoned saying that she was sorry she had not got the answers she wanted for me and could she ring me on the Wednesday (2 more days).

On the Wednesday she 'phoned and gave me nothing more than a load of "twaddle", that I was not entitled to any more than what they had paid as they were being generous.

In other words she was just bluffing along, because two days after that I received a letter from MBNA saying that they have sold the account.
Now then....does that mean they can sell the "Charging order" as only a Court can rule on that I would imagine.?

I apologise for the long run in, but as all will see I have gone through sheer hell for almost 2 years. All your past help inspired me to battle on as a "LIP" as I can't afford legals etc.

I know that the site team here are top notch as I have seen from the past,
and would really be grateful for advice on the above queries as you will all appreciate that I am now determined to get to Court with this shower
and hope this time it is "MY DAY IN COURT"!
wmr

[Never-In-Doubt]

Re: Court next month

Hi

Any update with all this as not seen you for a while now...... Hope you're keeping well

[wmr]

Re: Court next month

Yes-indeed I have not been back for some time and having had problems with falling down the stairs (not drunk!) tripping over our little dog who was lying 4 stairs up.

Well they managed the "Charging Order", but the lady judge made it clear that MBNA would only get £3 a month and as long as that was paid no further action could be taken. She gave them 7 days to appeal and she told the solicitor if they did appeal..."heaven help them!!". They did not appeal. Within 7 days of that they went on and sold the account to someone else. (I don't know if that charging order really is still valid as it was awarded to MBNA ?)

I then pursued them "MBNA" as advised by the lady judge when she told me I had separate issues with "MBNA" and to remember COSTS!. I took them to small claims and again they sent a Barrister from London and attempted to claim £2500 for her day in this part of the country. Apparently it was her first case as she had recently passed out!

I took all my letters from 12 year prior and told the judge that previously MBNA attempted to say I had forged my letters myself. The barrister attempted to get out of the claim by stating that "MBNA" had sold the account. The judge said.."so what..they probably sold it for pennies after getting a charging order and will claim the losses on the account.

I said I was claiming "compound interest" and he said that if I did that I would have to prove the interest charges, so I produced copies of statements for 12 years,(they were quite heavy). He did have a smile on his face and said that I had produced quite a case as a "LIP". The barrister attempted then to infer that as I was "getting on a bit" perhaps my memory of 12 years ago perhaps was "fogged" a bit. I replied telling her what I had done and been12 years prior and asked her if she could remember what she was doing 12 years ago. The judge started rubbing his head with both hands and appeared to be having a laugh I think.

The judge then stated that I was awarded all I claimed and interest and amounted to over a £1000. He gave MBNA 28 days to pay up.

3 days prior to the 28 days I sent an email letter to MBNA stating that as I had heard nothing from them I was making a courteous query as to what was happening. I was told by the secretary to the "MD" who took my call when I was asked by reply email to ring them and she said that another department was dealing with it and she would ring me back the same day. She phoned back saying that the other department said it would take about 21 days for a cheque to be sent out. This was way over the 28 days given by the court.

I told her that if the money was not sent by BACS by close of business on the 28th day, (4.30pm) I was advising the Court and would ask that Bailiffs be sent to Chester Office.

She said she would again ring me back. She phoned at 2,15pm to say that the BACS transfer had been made and to check with my Bank and she would ring back the following day to check. The money arrived at 4pm in my account, and she phoned me the following morning and I told her it was received. She apologised that I had to chase it up (ha..ha) and she said to me ...can I now close the issue as settled? I told her the matter was resolved and that was the end.

I did have a "Charging Order" but at £3 a month this is bearable. I did see my day in court also and had partial victory and enjoyed making them jump at the end.

I hope this gives encouragement to stand up to these people.

[Undercover Elsa]

Re: Court next month

What a brilliant read wmr.
Well done you for sticking to your guns (although a naughty little bit of me wishes you'd actually sent the bailiffs in )

[nanna58]

Re: Court next month

Only just read this what a winner go you .

[alangee]

Re: Court next month

Just one question regarding the charging order, wmr. Is the mortgage in your name alone, or is it a joint mortgage?

[wmr]

Re: Court next month

Sorry for delay as my Router has had to be replaced.

To answer your question....This is a joint mortgage! (Trust this helps).