MBNA - Sold to Arrow - but now a PPI claim with MBNA

[theturningworm]

Guys, I'm helping a friend with a MBNA Credit Card agreement which they sold to Arrow Global.

Arrow have issued proceedings and we're defending on a number of points.

Thing is, although the case is still ongoing, we made a claim for PPI to MBNA who didn't bat an eyelid and sent my mate a cheque in full and final settlement of his claim.

The cheque is great news obviously but now I cant make up my mind as to how it affects the court claim ?

It doesn't seem logical that they can continue a claim after the OC has just refunded a load of money but I'm not sure where we/they stand legally?

Any ideas anyone please?

[wales01man]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

If there is money owed stands to reason they will try to get it

[theturningworm]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

Agreed but their claim is for around £5k and as the OC has now repaid £1k back to the debtor surely the figure claimed cannot be right?

[PlanB]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

I'm helping a friend with a MBNA Credit Card agreement which they sold to Arrow Global. Arrow have issued proceedings and we're defending on a number of points.

Thing is, although the case is still ongoing, we made a claim for PPI to MBNA who didn't bat an eyelid and sent my mate a cheque in full and final settlement of his claim.

The cheque is great news obviously but now I cant make up my mind as to how it affects the court claim ?

It doesn't seem logical that they can continue a claim after the OC has just refunded a load of money but I'm not sure where we/they stand legally

Did your friend start the PPI claim before Arrow issued their claim? Or was the PPI claim made as a counterclaim to Arrow's claim which they have settled before trial?

What is your friend's Defence?

[PlanB]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

their claim is for around £5k and as the OC has now repaid £1k back to the debtor surely the figure claimed cannot be right?

I believe a Claimant can always re-plead the Particulars of Claim with a new sum if there's a question mark over the wording. When I was in court the DJ said firmly that my dispute over the actual sum owed was "a matter of quantum not law which I will address in the event of my judgment". In other words it was only a problem with the Maths and not a reason for the claim to be dismissed.

[theturningworm]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

Thanks for the replies

The claim was made by Arrow first. We made the claim for PPI after that and have now received a cheque so the original claim is still in court for the original amount with a trial date in December.

The defence is no legal assignment (they didn't even bother to plead one), IE agreement (missing prescribed term) historical £25 penalty charge and no DN ever received

[FlamingParrot]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

The claim was made by Arrow first. We made the claim for PPI after that and have now received a cheque so the original claim is still in court for the original amount with a trial date in December.

The defence is no legal assignment (they didn't even bother to plead one), IE agreement (missing prescribed term) historical £25 penalty charge and no DN ever received

Agreed but their claim is for around £5k and as the OC has now repaid £1k back to the debtor surely the figure claimed cannot be right?

The way I see it, they are rather lucky to have received a cheque for the PPI, because whenever there's an outstanding balance, any redress usually goes towards reducing the debt, except in some cases where the debt has been assigned in absolute, as seems to be the case here. :thumb:

I can't see them being able to counter-claim on the PPI since they have been awarded a cheque. If the redress has not gone towards the debt, then there is no reason to argue that the amount claimed should have the PPI award deducted from it, since it has been paid back to your friend, not used to reduce the balance.

Having said that, it may still be possible to defend the claim on the basis of unenforceable agreement, faulty DN, improper assignment, etc. if any of these apply. Not knowing the circumstances, it's hard to tell what the prospects would be, anything would be just a wild guess.

My suggestion would be for your friend to post the particulars of claim along with any documents they have received from the claimants, :typing: the legal folk :yo: may be able to help but they'll need to see the documents.

[theturningworm]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

How do I attach the docs?

[littlebert8]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

Underneath the quick reply box, click 'Go Advanced', scroll down and find the Manage Attachments button

[theturningworm]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

Ah ha!

Ok thanks.

The copy POCs I have is not a good one but this is what it says verbatim;

1) A Credit Card agreement made between MBNA Europe Bank Lltd and the cardholder
2) D accrued balance £xxxxx
3) D defaulted on payments
4) C issued formal demand requesting payment
5) Amount now due from D £xxxx

And that's it! Not even a mention of an assignment.

The docs attached are the agreement signed by D.
DN looks ok tbh

[littlebert8]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

My first thought is that the agreement is probably enforceable as the terms are on the reverse of the signed page. Have you redacted the credit limit from the front or was it missing? There is a term stating how it is decided on the reverse at 1a, so I think that makes all the prescribed terms. Probably not what you want to hear, but I'd be worried about defending this as UE.

You say the DN looks OK, but I'd recheck the dates and the amount.

Missing NoA is, I believe, fairly easy to rectify - unlike a dodgy DN! They will probably just produce a repopulated version if ordered to do so.

[FlamingParrot]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

My first thought is that the agreement is probably enforceable as the terms are on the reverse of the signed page. Have you redacted the credit limit from the front or was it missing? There is a term stating how it is decided on the reverse at 1a, so I think that makes all the prescribed terms. Probably not what you want to hear, but I'd be worried about defending this as UE.

Yes, that seems to be the reverse of the signed form. Although the copy attached it's not legible enough for me to spot possible discrepancies in the detail, such as a reference to a certain term that may not be there, letters out of sequence, etc. Often the devil is in the detail. :thumb: One thing that stands out is that the box for payment protection cover is not ticked on the form attached, yet there was PPI. :noidea: This means there would have to have been terms for the PPI cover as well.

You say the DN looks OK, but I'd recheck the dates and the amount.

Missing NoA is, I believe, fairly easy to rectify - unlike a dodgy DN! They will probably just produce a repopulated version if ordered to do so.

With regards to assignment, you may want to look at Harrison v Burke - attached below. :thumb:

I would suggest PMing PT2537 :yo: or Celestine :yo: with a link to this thread, to get their qualified opinion.

[littlebert8]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

Yes, that seems to be the reverse of the signed form. Although the copy attached it's not legible enough for me to spot possible discrepancies in the detail, such as a reference to a certain term that may not be there, letters out of sequence, etc. Often the devil is in the detail. :thumb: One thing that stands out is that the box for payment protection cover is not ticked on the form attached, yet there was PPI. :noidea: This means there would have to have been terms for the PPI cover as well.

With regards to assignment, you may want to look at Harrison v Burke - attached below. :thumb:

I would suggest PMing PT2537 :yo: or Celestine :yo: with a link to this thread, to get their qualified opinion.

Agree that its not particularly legible, but that could be the 72ppi upload . I had a virgin agreement of similar vintage to this, and its my opinion that MBNA did duplex scan agreements at this time. The reverse page doesn't look like a recon and that reference in the bottom left might tie it to the front. So I think its unlikely that there will be a discrepancy that will bring into question whether they were part of the same document. Note that they only show a subset of the terms on the reverse, but make reference to a separate document embodying the rest. We've also already established that the PPI was miss-sold as MBNA have refunded it, so I'm not sure the absence of the tick will help.

I should have been clearer about the NoA - I didn't mean that a bad one can be rectified, but that if you say you didn't receive it, they will probably just provide a repopulated copy. You are absolutely right that the OP should be looking for discrepancies in the documents that have been supplied. I suppose I was trying to say don't rely on the absence of a document.

[theturningworm]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

Thanks all, I appreciate the responses

I actually have an original one of these agreements so I know that front and back are correct. They have also supplied recons to cover for possible illegibility issues. Also, PPI was sold on some time after the agreement started so is not an issue with the signed form anyway

Thing is, should not the prescribed terms include "any power of the creditor to vary the agreement" which this one does not - in which case it is not only IE but also renders null and void any variation imposed thereafter - which could even lead to a counterclaim for the return of monies paid after the variation??

I've had another look at the DN (attached) and now realise of course that, allowing four days for posting, it does not allow14 days so that issue will now be added to proceedings and I will contend the lack of assignment as well of course

But the main reason I posted this up was the fact that a claim has been made for £5k ish and now, a cheque has been received back for + £1k so how can the claim for £5k stand? It just doesn't make sense that a claim is being made for an amount the OC has now admitted it was wrong to impose. I'm not sure how I would word it but it just seems so wrong to me

I know cases have been heard regarding PPI but does it not open up the possibility of secret commissions paid to the OC

[littlebert8]

Re: MBNA - Sold to Arrow - but now a PPI claim with MBNA

The prescribed terms are defined in the CCA and for a credit card they are:

• The credit limit, or a how it will be decided (see 1a in the agreement)
• The interest rate (1e)
• The amount and frequency of repayments (1c)

"any power of the creditor to vary the agreement" isn't one of them.

Also, are you sure that there isn't such a term in the separate terms and conditions document referred to at the top of the reverse page of the signature form?

If the money has already been refunded, then wouldn't that make the claim value correct? You cant expect to get the PPI refunded directly AND removed from the balance of the account. I suppose you could have argued that the balance was incorrect BEFORE the refund, but I don't think this would have been fatal to the claim as they could just amend it

I think the default, and perhaps the NoA when you can get a copy of it, are the weaknesses with this claim.