Unfair Terms and Conditions - Court Action MBNA

natweststaffmember

I'm afraid, from all the details I have read, you may well be unsuccessful on this one. The defence is specifically stating that you haven't quoted case law that the claim is vague and that you stand no chance of winning. I had hoped that there might be room to move but I think this one is a poorly researched action.
Can I ask if you firstly wrote letters to the bank explaining that you would take them to court and did they reply?
If you have then at least you have followed basic court protocol, ie you have tried to resolve this without and have used the county court as a last resort.

taktikback

The chain of events was thus:

-MBNA send me a letter saying interest date being changed to 7th from 15th. (December)
-I change SO from 9th (which it was for as long as I remember) to 5th
-The payment hit a weekend and was credited on 9th.
-I logged in to my account on around the 15th and saw the default.
-called MBNA - response - tough - T+Cs etc
-Around 20th Dec, statement arrived confirming default
-Mad scramble to clear card - painful interest piling up - payments taking 4 days to clear
-Written complaint to MBNA around 20th
-Response from MBNA on 31st - holding letter - will respond in 28 days
-Nothing from them subsequently (apart from statements and credit card cheques!)
-I wait 8 weeks and refer to FOS due to no response
-By April FOS come back and say their has been no final response from MBNA so they are going back to them.
-Around June - FOS send me a copy of the final response which says T+Cs - go away - MBNA claim to have sent this to me in January - they didn't, but I continued to receive their other post.
-July FOS respond to me - can't uphold complaint - T+Cs etc - with a statement saying they have no regulatory powers to challenge T+Cs - the are merely a complaints resolution service - wish I'd realised that, and I would have bothered because I already admitted I broke the T+Cs - It was the T+Cs I had a problem with
-July - go for claim on line
-Now - received the defence posted


OK - I hear what you are saying - I should have been specific about the case law in challenging the T+Cs - I have tried to follow the correct protocol.

I guess this is just the way it is. What I should have done is claim that I never received notification of the change in interest payment date for December.

That would have been a lie, but MBNA would not have been able to prove otherwise and I would be £600 better off.

Just shows that honesty is not always the best policy

Thanks for all the feedback - It's been useful - Looks like I will be withdrawing my action.

taktikback

The chain of events was thus:

-MBNA send me a letter saying interest date being changed to 7th from 15th. (December)
-I change SO from 9th (which it was for as long as I remember) to 5th
-The payment hit a weekend and was credited on 9th.
-I logged in to my account on around the 15th and saw the default.
-called MBNA - response - tough - T+Cs etc
-Around 20th Dec, statement arrived confirming default
-Mad scramble to clear card - painful interest piling up - payments taking 4 days to clear
-Written complaint to MBNA around 20th
-Response from MBNA on 31st - holding letter - will respond in 28 days
-Nothing from them subsequently (apart from statements and credit card cheques!)
-I wait 8 weeks and refer to FOS due to no response
-By April FOS come back and say their has been no final response from MBNA so they are going back to them.
-Around June - FOS send me a copy of the final response which says T+Cs - go away - MBNA claim to have sent this to me in January - they didn't, but I continued to receive their other post.
-July FOS respond to me - can't uphold complaint - T+Cs etc - with a statement saying they have no regulatory powers to challenge T+Cs - the are merely a complaints resolution service - wish I'd realised that, and I would have bothered because I already admitted I broke the T+Cs - It was the T+Cs I had a problem with
-July - go for claim on line
-Now - received the defence posted


OK - I hear what you are saying - I should have been specific about the case law in challenging the T+Cs - I have tried to follow the correct protocol.

I guess this is just the way it is. What I should have done is claim that I never received notification of the change in interest payment date for December.

That would have been a lie, but MBNA would not have been able to prove otherwise and I would be £600 better off.

Just shows that honesty is not always the best policy

Thanks for all the feedback - It's been useful - Looks like I will be withdrawing my action.

taktikback

Been doing a bit of reading around OFT guidelines on Unfair terms and conditions (a bit like the Aussies today - refusing to go down without a fight!)

This clause (5.9) looks interesting: (Financial penalties - paragraph 1e of schedule 2)

"The regulations are concerned with the intention and effect of terms, not just their mechanism.If the term has the effect of an unfair penalty, it will be regarded as such, and not as a "core term". Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contactual option"

So charging me a whole month's interest for a two day late payment could be classed as a penalty, not merely the payment of contactual interest. Plus the loss of a handling charge could also been seen as a penalty - not just a method of securing the 0% rate that was removed as per supposedly fair T+Cs?

Or am I just kidding myself?

MarkyMarkD

MBNA didn't need to notify you of a change in payment date. Their Ts & Cs allow them to issue statements any day they like in a month (IIRC) and the payment date is whenever it is.

If they reduced the number of days between statements and payment, then that would be a change in Ts & Cs and would require notification. I cannot remember if you've said that was the cause.

Secondly, your change to SO date was stupid. Why were you paying 6 days before the original due date, but then changed it to 2 days before? Obviously you were asking for it to fail.

Thirdly, you didn't "lose" a handling charge. The handling charge was for the balance transfer, which you received. End of story. The interest rate was x% or 0% if you paid on time, which you didn't. End of story.

I have no belief that your claim will succeed.

You haven't directly answered the previous question of whether you issued a letter before action, so I take it that you didn't. That's also not helpful to you.

You could also have helped the progress of the initial complaint by asking MBNA where their response was, rather than going to FOS. Businesses do not habitually fail to deal with complaints within the 8 week timescale and FOS simply delay matters by many months.

taktikback

Yes the number of days between statements was reduced.

Yes I know I got the SO change wrong...I haven't disputed that - I didn't pay enough attention to it because it was the first time I had to do it...

Next point- their defence is as you say - the handling charge is for moving the money, not for the rate. That is, however, the only way to get the 0% deal being offered, so the two are clearly intentionally connected. But as you eloquently put it - they are clever - I am not.

-I probably won't succeed - but hindsight is a wonderful thing

- I did write to them with the complaint - I didn't write threatening to take them to court - I stated I would go to the FOS which I subsequently did

-Yes I could have asked MBNA where their response was, but frankly by this point I had already called them twice and I had no reason to believe they were going to do anything to help.

..and if any of this helps to deter anyone reading from making the mistakes I made, I'm glad I pursued it this far

oscar52

taktikback wrote: »

The default ( a two day late payment) was not notified in writing when applied on 9/12/08 and was in respect of a period prior to the default.

Do you honestly expect MBNA to continually monitor 4 million plus accounts to ensure that the payment dates are met, and then, on the off chance that, say 0.01% (or 4000) customers are late, to write to each of them individually.

natweststaffmember

oscar52 wrote: »

Do you honestly expect MBNA to continually monitor 4 million plus accounts to ensure that the payment dates are met, and then, on the off chance that, say 0.01% (or 4000) customers are late, to write to each of them individually.

Oscar52, you have come into this one late and unfortunately the answer is definitely 100% that they will monitor any account that is defaulted and they certainly would have to write to the customer to apply a default to the account.

oscar52

natweststaffmember wrote: »

Oscar52, you have come into this one late and unfortunately the answer is definitely 100% that they will monitor any account that is defaulted and they certainly would have to write to the customer to apply a default to the account.

I read the default as being a late fee - not as a default on the credit file.

taktikback

the default was for the late payment, and charged at £12 in addition to all the other grief.

They did not respond to my mention of the non-notification in their defence.

Had I not spotted it by logging in online, it would have been more than a week before the statement alerted me to the problem.