eyeballgod v MBNA (Optima)

[citizenB]

I thought costs in small claims were limited ?

[citizenB]

Do you have any triable issues at all ?

 

Had they complied with any s78 request you had made.

 

Are the documents either the originals or proper reconstructions with no problems.

 

Did they issue a default notice and was it a good one.

[slick132]

Hi EBG,

 

Their list of costs is just an intimidatory tactic, as much as anything. You can prepare your own schedule of costs reflecting your costs to date in researching and defending the claim against you. As a LiP, you can claim £18 per hour for time reasonably spent in preparation but don't go overboard.

 

You should have prepared a Witness Statement to counter the SO Appl'n, dealing with their appl'n point by point.

 

You can also point out that your defence so far is limited due to the claimant's failure to supply doc'ts which you requested back in 2011. If the SO Appl'n fails, you could therefore ask the court to :-

 

1. Order the production of key documents which you require.

 

2. Grant you time to respond and enter a full defence once the claimant has produced the documents required.

 

If you haven't done this, you should get this to the court Monday morning and send a copy to the defence sol'rs by email. A letter to the court manager should request that the judge hearing the SO Appl'n be given sight of your WS asap.

 

Head the Witness Statement with the name of the County Court, the Claim No., the names of the bank as Claimant and you as Defendant, and the heading "WS in response to the Claimant's Application to Strike Out the Defence".

 

[slick132]

PS,

 

Their claim for costs has no effect on the amount of the claim against you and will not affect the claim remaining on the Small Claims Track if the alleged debt is less than £5K.

 

[eyeballgod]

PS,

 

Their claim for costs has no effect on the amount of the claim against you and will not affect the claim remaining on the Small Claims Track if the alleged debt is less than £5K.

 

 

Many thanks for all your advice, but I'm afraid its probably too late. I'm due in court on Tuesday and already sent in my ws.

Optima did supply all required and the only problem with the default is that it contains unfair charges.

The main problem is that mbna only sent two letters to me before starting a court claim. Neither of them accepting my offer to pay token sums.

I don't see how their costs are going to intimidate me at this point.

[slick132]

If you feel you have a poor chance of defending the SO Appl'n and/or the main claim, you either need to :-

 

1. Negotiate a monthly payment based on your Budget Planner and see if they'll accept this now, perhaps by way of a Tomlin Order. This will avoid the CCJ against you just now but needs to be done on Monday.

 

2. Attend court with a Budget Planner so you have it to suggest a realistic amount you can pay monthly, if the SO Appl'n is successful or if the main case is heard.

 

Option 1 is probably the safer but it may be wise to attend court anyway in case they try to get the CCJ in your absence.

 

[eyeballgod]

If you feel you have a poor chance of defending the SO Appl'n and/or the main claim, you either need to :-

 

1. Negotiate a monthly payment based on your Budget Planner and see if they'll accept this now, perhaps by way of a Tomlin Order. This will avoid the CCJ against you just now but needs to be done on Monday.

 

2. Attend court with a Budget Planner so you have it to suggest a realistic amount you can pay monthly, if the SO Appl'n is successful or if the main case is heard.

 

Option 1 is probably the safer but it may be wise to attend court anyway in case they try to get the CCJ in your absence.

 

 

Thanks Slick,

 

I think I have tried and failed to negotiate something along the lines of a Tomlin order.

We agreed on an amount, but they wanted it all up front whearas I can obviously only pay in monthly instalments. They rejected my offer, hence the application for lift of stay and summary judgement.

 

My plan at the moment is along the lines of option 2.

 

I will happily argue my case that MBNA needed to have responded to my request for reduced payment before launching court action. Really I can only hope for some sort of leniency in the judgment rather than it being struck out. I'm guessing the judge won't write off the debt on the fact they have been really unreasonable!

 

It does concern me somewhat that their statement of expenses comes to around £3600 - pretty much doubling the alleged debt.

[slick132]

As long as you can show that you have tried to negotiate reasonably with them with a view to avoiding a court hearing, your exposure to costs should be minimal.

 

You can argue that it is not reasonable of them to require payment in one go, that you've offered monthly instalments which you can realistically afford and that the decision to take the matter into court was theirs alone.

 

Good luck and let us know how it goes.

 

[Chipmeister]

Good luck. :@)

[eyeballgod]

Well the summary judgement went against me as expected. Their costs were reduced by a two thirds, but the original amount stayed as it was.

The judge has allowed us 28 days to reach an agreement to avoid a CCJ being entered against me. After that 28 days he will decide on an installment order and if MBNA are allowed to apply for a charging order. He did indicate it would be likely a charging order would be agreed if applied for.

 

Any advice on how to proceed?

 

I think reclaiming the unfair charges is still an option and presumably a point to raise in negotiations. He also said I have good grounds to complain about MBNA's behaviour prior to court action.

They mentioned looking at the equity in my house - not sure how they would. I only own half the house - my unmarried partner owns the rest.

Really I'm looking for any way I can to reach an agreement that I can afford and that will redeuce the amount I owe.

[slick132]

Hi EBG and I'm sorry to hear this went badly for you.

 

Strange that the judge felt you had grounds to complain about MBNA's behaviour prior to court action, yet he still granted them costs against you.

 

Re the matter of unfair or penalty charges, what is the total of these now. Open your spreadsheet to check today's figure.

 

This amount should be brought into the negotiations. Was this matter raised or mentioned in the court hearing at all.

 

I hope others will also comment on possible next moves for you.

[twoman]

EBG,

Sorry to read about your loss.

You mentioned Charging Order and your partner.

If the credit card is only in your name and the house is jointly owned then they can not obtain a charging order,only a restriction which is useless to them anyway.

I may be wrong but more experienced caggers will comment.

[eyeballgod]

The penalty charge amount is up to £645 now. I would be able to claim for costs as well if I were to bring a claim wouldn't I?

It was brought up in my argument about a faulty default notice, but not at any other point.

 

The judge said that whilst I had grounds to complain, it wasn't enough to mount an effective defence at trial.

To be fair to the judge, I think he was sympathetic towards me as he kept telling off the MBNA solicitor and he's given me a chance to avoid a CCJ.

The installments order would be heard through him if we cannot reach an agreement and he advised that I would need to provide more details about my income than just an I/E form.

The MBNA solicitor was also quite forthcoming with information and was quite a friendly chap. It certainly wasn't an overly unpleasant experience to go through, I'm just a bit frustrated that it wasn't all dealt with in one go.

 

I would be very interested to hear about the charging order - the MBNA solicitor didn't sound keen on it as he mentioned to the judge about me having other creditors and they might get pushed down the list.

Both the solicitor and the judge mentioned about looking into the equity in my home - in what way are they going to do that and to what end?

We had a dodgy as they come mortgage advisor and I really haven't got a clue what's going on with my mortgage. I'm very unlikely to be able to re-mortgage now my credit rating is screwed up anyway.

[dx100uk]

1. i wouldn't write off a remortgage, esp as you say 'you had a dodgy advisor' - tell us more.

 

2. PENALTY charges- i know you are well up on this , so you are using the CIsheet?

 

dx

[eyeballgod]

1. We moved house 7 years ago.

The mortgage adviser chap made up our income and got a self-certify mortgage in order get it.

It's an interest only mortgage rather than repayment.

It gets complicated as he did something funny with our existing mortgage.

We keep getting statements through for our first mortgage from 13 years ago and I think we're paying that balance off on it's original 25 year term,

but we are paying the interest on our current mortgage on a 25 year term that started 7 years ago.

We got a letter about 5 years ago from the finance company saying the chap had left the company, and from the tone, I suspect it wasn't on good terms.

 

We are currently on the SVR from Halifax and I worry that if I try and do anything with the this mortgage, the monthly payments are going to rocket beyond what we can afford at present.

 

2. I've been using the interestcalcs spreadsheet - it does the same thing as far as I can see.

[slick132]

You need to write to MBNA as part of the negotiations enclosing your updated SoC, so they can see the breakdown of the £645 in charges and interest.

 

See if they are prepared to accept this as a reduction of the balance owed, or not. If not, you'll have to argue it out with them.

 

Ideally, you should avoid separate court action regarding this.

 

[Chipmeister]

I'm glad to hear the Judge at least had the sense not to award the CCJ against you immediately. Good luck with your negotiations. Can you remind me who MBNA are using as their solicitors please?

[citizenB]

I think once you have this resolved, you need to look into the situation regarding the mortgage - if there was something "off" then you might be able to do something about it.

 

Where do MBNA figure in the grand scheme of things.. eg do you have other creditors who are owed more ?

[eyeballgod]

Chip - it's Optima for me, although this started almost 2 years ago.

 

CitizenB - I wouldn't know where to start with the mortgage.

I heard a lot of fuss about people being mis-sold endowments quite some time ago, but I don't think I can do anything about that now.

 

MBNA are 4th in the list of credit cards in terms of amount owed.

Having said that, Barclaycard have the most, but the account is in dispute as they have been unable to proide me with any sort of contract, next is Halifax who have provided a reconstituted contract but has been round all the debt collectors you can imagine, next is Tesco who I have a reduced payment going on with - no hassle from them at all. Then comes MBNA first account which is this thread and another MBNA account which they have admitted they have no contract for and will not be pursuing through court.After that, I've got two overdrafts on the go - one with Barclays, the other with Santander.

Edited September 5, 2012 by eyeballgod

[mystery1]

Well the summary judgement went against me as expected. Their costs were reduced by a two thirds, but the original amount stayed as it was.

The judge has allowed us 28 days to reach an agreement to avoid a CCJ being entered against me. After that 28 days he will decide on an installment order and if MBNA are allowed to apply for a charging order. He did indicate it would be likely a charging order would be agreed if applied for.

 

Any advice on how to proceed?

 

I think reclaiming the unfair charges is still an option and presumably a point to raise in negotiations. He also said I have good grounds to complain about MBNA's behaviour prior to court action.

They mentioned looking at the equity in my house - not sure how they would. I only own half the house - my unmarried partner owns the rest.

Really I'm looking for any way I can to reach an agreement that I can afford and that will redeuce the amount I owe.

 

You brought up that you didn't receive a default notice and lost ?

 

How did that happen ? Did you not take Brandon with you http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html or Harrison ? http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html

 

Both these are binding on a lower court.

 

M1

[eyeballgod]

I did get a default and there wasn't anything wrong with it. The only hole I could pick in it was that the balance contained default charges and was therefore inaccurate, but the judge didn't agree.

 

The MBNA solicitor was going to argue that they didn't need to serve a default notice in order to bring the case to court, but it didn't get that far. That's one for other people to watch for I should imagine.

[eyeballgod]

Just thinking ahead to the installment order - the judge said I would need to bring more information than just the I/E budget sheet. He mentioned a breakdown of transport costs, etc. He also mentioned equity in the house.Is he inferring that I could loan money against the equity in the house in order to pay MBNA?Also, what sort of information would they want when it comes to assesing what I can afford to pay? Do I need to bring bank statements and payslips?

[citizenB]

I did get a default and there wasn't anything wrong with it. The only hole I could pick in it was that the balance contained default charges and was therefore inaccurate, but the judge didn't agree.

 

The MBNA solicitor was going to argue that they didn't need to serve a default notice in order to bring the case to court, but it didn't get that far. That's one for other people to watch for I should imagine.

 

Actually they are incorrect in their final statement .. and they are well aware of that .. The Judge in Harrison v Link said that they cant change horses mid stream.. if they issue the Default Notice that is the route they have to take .. Apart from which if the account was in default they could NOT use the other balance on demand route.

 

I will find someone to advise what information you are required to take. But I think you need to make certain that and partner in the mortgage provides a witness statement to confirm they are not willing to have a charge on THEIR half of any equity !!

[eyeballgod]

Thanks CitB - I was hopefully warning others to watch out for that approach. As the default notice was considered valid, we didn't get to that argument.

Just to add a certain amount of complication to my current income, my partner is on Maternity Allowance, which has meant a temporary increase in our tax credit income. Once she's back to work, those tax credits will drop around about £150 p/m. Am I best to explain that to a judge, or just declare what the income will normally be?I've found tax credits to be a very unstable form of income - it was cut by £120 p/m when they changed the rules about 18 months ago, now we're being paid more than we normally would be becuase my partner is claiming a different income that doesn't count as income for tax credits purposes.I can well see how people get into a muddle with tax credits.

[Old Cogger]

The penalty charge amount is up to £645 now. I would be able to claim for costs as well if I were to bring a claim wouldn't I?

It was brought up in my argument about a faulty default notice, but not at any other point.

 

The judge said that whilst I had grounds to complain, it wasn't enough to mount an effective defence at trial.

To be fair to the judge, I think he was sympathetic towards me as he kept telling off the MBNA solicitor and he's given me a chance to avoid a CCJ.

The installments order would be heard through him if we cannot reach an agreement and he advised that I would need to provide more details about my income than just an I/E form.

The MBNA solicitor was also quite forthcoming with information and was quite a friendly chap. It certainly wasn't an overly unpleasant experience to go through, I'm just a bit frustrated that it wasn't all dealt with in one go.

 

I would be very interested to hear about the charging order - the MBNA solicitor didn't sound keen on it as he mentioned to the judge about me having other creditors and they might get pushed down the list.

Both the solicitor and the judge mentioned about looking into the equity in my home - in what way are they going to do that and to what end?

We had a dodgy as they come mortgage advisor and I really haven't got a clue what's going on with my mortgage. I'm very unlikely to be able to re-mortgage now my credit rating is screwed up anyway.

 

 

Just go to the consumer sites and look for I & E sheets and fill them in, they ask for outgoings (all) and income then shows what is left at the end of the day, that is the area the DJ is pointing out to you if you are going down that route.