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MBNA Default Notice/CCA


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Hi all

On 25 Jan of this year MBNA sent a copy of the original Agreement, with current terms and conditions stapled for husbands Virgin Card. Since then we have been bouncing letters back and forwards to them re the unenforceability of this Application form (the very top line which appear illegible says "applying for a Virgin Credit Card couldn't be easier etc ). They have made offers of reduced settlement together with threatening letters. Today have received Default Notice below wanting £896 in arrears before 19 September or they will start court proceedings to recover the whole amount. I am so sick and tired of them and am seriously considering paying this amount to get them off our backs - what does anyone think? Can they start legal proceedings based on this Agreement?

Front page Application form.jpg

Back of application form.jpg

Default notice.jpg

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Have you disputed the account and has the dispute remained ?

That is to say have they sent you the default notice whilst your dispute remains in place ?

Can you tell us whats happened between January and now ? I mean insofar as your acknowledgement/non acknowledgement of the alleged debt.

Also what was the amount they claim for ?-how was it made up ?

Finally have you ever paid anything in agreement-or acknowledged the debt ?

Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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Have you disputed the account and has the dispute remained ?

That is to say have they sent you the default notice whilst your dispute remains in place ?

Can you tell us whats happened between January and now ? I mean insofar as your acknowledgement/non acknowledgement of the alleged debt.

Also what was the amount they claim for ?-how was it made up ?

Finally have you ever paid anything in agreement-or acknowledged the debt ?

 

Hi Martin

We have constantly replied to them saying "In Dispute" and Not acknowledging any debt - and requesting a properly executed agreement with the T/Cs at the time card taken out. The amount they are claiming is for arrears not paid once we realised the agreement was probably not enforceable. No payments have been made since we received the photocopy of the agreement. Last year however, we managed to get back penalty charges on the account but that was before we applied for a CCA.

Thanks

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If the DN arrived today requiring compliance by 19 September, hang on to it tightly and keep your fingers crossed MBNA soon terminate.

 

x20

 

Thanks for quick reply but I'm being dense (doesn't take a lot:D). What are the benefits of MBNA terminating???:???:

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MBNA have today served a DN. Today is 6 September. Their DN says they require you to comply with it by on or before 19 September. For the DN to be effective it must comply with section 88 of The Consumer Credit Act 1974. The Act requires the creditor to give you not less than 14 days after service to comply with the DN. Thus, to comply, it must require you to comply by a date no later than 20 September, not 19 September.

 

A DN which does not comply with section 88 does not entitle the creditor to any of the rights in section 87(1).

 

If they terminate, that ends the agreement and you are released from any future obligations under it. Likewise MBNA are left holding a terminated agreement with none of the rights under section 87(1).

 

x20

  • Haha 1
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MBNA have today served a DN. Today is 6 September. Their DN says they require you to comply with it by on or before 19 September. For the DN to be effective it must comply with section 88 of The Consumer Credit Act 1974. The Act requires the creditor to give you not less than 14 days after service to comply with the DN. Thus, to comply, it must require you to comply by a date no later than 20 September, not 19 September.

 

A DN which does not comply with section 88 does not entitle the creditor to any of the rights in section 87(1).

 

If they terminate, that ends the agreement and you are released from any future obligations under it. Likewise MBNA are left holding a terminated agreement with none of the rights under section 87(1).

 

x20

 

Thank you, that makes sense. However letter is dated 4th Sept and we received it today so that would make it within the timescale required?

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Perhaps I am clutching at straws but in their DN they say" Paragragh 8 of the Agreement provides you must repay immediately.....". However, the photocopy of the alleged agreement has no paragraph 8 - it stops at paragraph 2.4!

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Section 88 says this:

 

(1) The default notice must be in the prescribed form and specify—

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed.

 

So it is clear. The date must not be less than 14 days after the date of service of the DN, not the date of some letter or the date they put it in a letter box. Even if the letter was sent first class on 4 September, deemed service would be the second day after posting, ie 6 September. Your evidence, should this ever get into a future dispute, will be the DN was served on 6 September.

 

Enjoy the rest of your weekend!

 

x20

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Issuing you with a default notice whilst the account remains in dispute is clearly a breach not only of OFT guidelines but also the consumer credit regs/consumer unfair terms 2008.

Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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Hi Martin

We have constantly replied to them saying "In Dispute" and Not acknowledging any debt - and requesting a properly executed agreement with the T/Cs at the time card taken out. The amount they are claiming is for arrears not paid once we realised the agreement was probably not enforceable. No payments have been made since we received the photocopy of the agreement. Last year however, we managed to get back penalty charges on the account but that was before we applied for a CCA.

Thanks

 

 

Ok thats good.

They can say that you had previously acknowledged the debt,but your arguement is that you were only made aware of the unlawful charges later,and had you been aware initially would not have entered into any agreement. Hence you ceased that agreement once you DID become aware.

Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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That was the second thought which came into my head.

 

The first one was that I couldn't read any part of the documents you posted. They need to be larger.

 

x20

 

 

Just discovered how to work Photobucket! (Son had to show me!!)

 

http://i361.photobucket.com/albums/oo59/deborah1jane/FrontpageApplicationform.jpg

 

http://i361.photobucket.com/albums/oo59/deborah1jane/Defaultnotice.jpg

 

http://i361.photobucket.com/albums/oo59/deborah1jane/Backofapplicationform.jpg

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Thank you both Martin and Surfaceagent - it has been a very stressful day as RBS are now taking husband to court and have had to deal with that as well! (Marriage vows - for richer, for poorer;)) You have put my mind at rest and I will write a letter to MBNA reminding them that they cannot invoke a DN whilst account in dispute x x x (PS but it has been a learning curve today - can now use Photobucket so not a wasted day!)

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He He dont worry-Rbs are not so difficult.Ive done 2 with them and have another 2 in the System.I dont think Cobbetts will be sending me a Christmas card.;)

Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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Thank you, that makes sense. However letter is dated 4th Sept and we received it today so that would make it within the timescale required?

 

I've had the same thing - identical - but have a look at the envelope empowered - mine is second class - the Royal Mail doesn't deliver those in a day does it? Looks like we've got the bas****s!!! Yeeehaaaa!!!!

 

Regards.

 

Fred

Before you criticise another man you should first walk a mile in his shoes. Then, when you criticise him, you'll be a mile away and he won't have any shoes on.

 

Don't get me confused with somebody knowledgeable by all those green blobs. I got most of them by making people laugh.

 

I am not European, I am English.

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MBNA have today served a DN. Today is 6 September. Their DN says they require you to comply with it by on or before 19 September. For the DN to be effective it must comply with section 88 of The Consumer Credit Act 1974. The Act requires the creditor to give you not less than 14 days after service to comply with the DN. Thus, to comply, it must require you to comply by a date no later than 20 September, not 19 September.

 

A DN which does not comply with section 88 does not entitle the creditor to any of the rights in section 87(1).

 

If they terminate, that ends the agreement and you are released from any future obligations under it. Likewise MBNA are left holding a terminated agreement with none of the rights under section 87(1).

 

x20

 

You beauty! I'm as happy as a pig in muck!! I'm sorry empowered - didn't mean to hijack your thread, but I've had exactly the same thing with the same dates.

 

Regards.

 

Fred

Before you criticise another man you should first walk a mile in his shoes. Then, when you criticise him, you'll be a mile away and he won't have any shoes on.

 

Don't get me confused with somebody knowledgeable by all those green blobs. I got most of them by making people laugh.

 

I am not European, I am English.

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God Good;)

Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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You beauty! I'm as happy as a pig in muck!! I'm sorry empowered - didn't mean to hijack your thread, but I've had exactly the same thing with the same dates.

 

Regards.

 

Fred

 

Hi Fred

Hijack away - I know that we have been neck and neck with the same letters and dates for the last couple of months! Shall we crack open a virtual bottle of champers tonight?:D

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Thank you both Martin and Surfaceagent - it has been a very stressful day as RBS are now taking husband to court and have had to deal with that as well! (Marriage vows - for richer, for poorer;)) You have put my mind at rest and I will write a letter to MBNA reminding them that they cannot invoke a DN whilst account in dispute x x x (PS but it has been a learning curve today - can now use Photobucket so not a wasted day!)

 

OMG, for Pete (and Fred's) sake don't write to MBNA telling them they've gone wrong with the DN. Someone at MBNA might just take a look at the DN and withdraw it!

 

You do not want MBNA to withdraw this priceless DN!

 

x20

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OMG, for Pete (and Fred's) sake don't write to MBNA telling them they've gone wrong with the DN. Someone at MBNA might just take a look at the DN and withdraw it!

 

You do not want MBNA to withdraw this priceless DN!

 

x20

 

 

Ooops - OK so will keep very very quiet!;) Thank you - brain is getting very very confuddled!

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Something bothers me about the front and back of this form.

 

1:. This is obviously one of the mailers - you would fold it into 2 or 3 moisten the edges and seal it. On one section of the back there would be an address.

 

2: On page 1 (first link) it says quite clearly fold here at one point only. So you would have folded the form in half.

 

3: the back side of the form (link 3). On the top half of the page (above the "fold here" point) there is a business reply address. On the 2nd half ,there are financial and related conditions.

 

4:. This would mean that when you folded this form in HALF then sealed it, one side would be showing the address to be sent to, the other side would be showing the financial and related conditions ????. Is that not rather strange to have what amounts to personal information visible for the postman to read ? It would also make people aware that there would be personal information enclosed, possibly bank details etc inside.

 

My thoughts are that these conditions were not part of this form.

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OMG, for Pete (and Fred's) sake don't write to MBNA telling them they've gone wrong with the DN. Someone at MBNA might just take a look at the DN and withdraw it!

 

You do not want MBNA to withdraw this priceless DN!

 

x20

 

Don't worry, they're so bone-headed that they've probably got another template letter to explain why everything is hunky-dory. Anyway, for the time being, my lips are sealed.

 

Can they withdraw it?

 

Regards.

 

Fred

Before you criticise another man you should first walk a mile in his shoes. Then, when you criticise him, you'll be a mile away and he won't have any shoes on.

 

Don't get me confused with somebody knowledgeable by all those green blobs. I got most of them by making people laugh.

 

I am not European, I am English.

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Hi Fred.

 

I see no reason why a creditor could not withdraw its DN at any time up to the day on which the creditor terminates the agreement.

 

Another way of looking at this is to ask the flip of the question: 'Can the creditor be compelled to do the things it says it will do in the DN if the debtor defaults on it?'

 

People with rights can not be forced to exercise them. Such people may exercise them as they choose. Thus, I do not take the view a creditor can be compelled by the debtor to enforce its rights under s 87(1) where the DN meets the requirements of s88 and the debtor has not complied with; even less so where it does not meet the requirements of s88 wherefore the creditor has no rights.

 

So important therefore to stay mum.

 

x20

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Thanks x20, just the obvious question, does this DN count from the day they posted it or the day I received it?

 

Regards.

 

Fred

Before you criticise another man you should first walk a mile in his shoes. Then, when you criticise him, you'll be a mile away and he won't have any shoes on.

 

Don't get me confused with somebody knowledgeable by all those green blobs. I got most of them by making people laugh.

 

I am not European, I am English.

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