As RBS have not provided me with original 'Mint' (aka Advanta) agreement (I rec'd a mock up made by them) I SAR'd them and to cut a long story short they said

1. I had to tell them what the account number of my Advanta card was (!!!).

2. They sent statements headed Mint for two different accounts (one from 2007 to now) and the other account number was from approx. 2002 to 2007. Al statements had MINT headed paper BUT I am sure (well I'm hoping!) that the account from 2002 was the Advanta one? If so are they allowed to use 'Mint' headed paper on copy statements?

tehre is absolutely no information from my SAR notes or letters to / from prior to 2007 or anything at all about Advanta account or changeover name / ownership.

Any advice before I write back to ICO with more details?

That's interesting, WTWT - my original card was with Advanta and to date they have been unable to provide me with an agreement (not even a mocked up one:D).

I certainly wouldn't tell them the original a/c number - why should you do their work for them? Cheeky b's!

Any chance you can scan and post up the mocked up agreement they sent you (minus personal details, of course)?

If they have tried to pass off a Mint agreement on you, when you signed an RBS Advanta agreement they are in deep and copious amounts of unpleasant smelling brown stuff.

Will scan and post up tomorrow. Does not state the date agreement opened eitherthat I can recall .

For now I've just ventured out of the attic and discovered my main bank statements from 2001 which already had direct debits setup to RBS Advanta then DD name changed to RBSA Platinum then RBS Mint and then the actual card number changed but the direct debit dates stayed the same.

IF a card number changes does this actually mean its a new agreement or not?? When a card expires or lost etc does the card number (long one) change?

I'll now have to cross reference those 'Mint' statements they gave me with when the Direct debits were paying RBS Advanta I guess... then ask more questions!

.

 

I certainly wouldn't tell them the original a/c number - why should you do their work for them? Cheeky b's!

I just realised that I may well have written this information down for them recently as I was disputing that cca they sent. I may well have just helped them find the real one - or perhaps they really did know the account details of the Advanta but were aiming not to give me details as they had no cca or statements or anything from Advanta days? Bit odd how they seem to have nothing from Advanta days or maybe I have not read enough threads??

Any idea anybody when exactly it all changed and implications etc?

 

IF a card number changes does this actually mean its a new agreement or not?? When a card expires or lost etc does the card number (long one) change?

quote]

I've been trying to find the answer to that one myself for some time now - I will be speaking to a lawyer in a couple of weeks time and will run that one past him.

I just realised that I may well have written this information down for them recently as I was disputing that cca they sent. I may well have just helped them find the real one - or perhaps they really did know the account details of the Advanta but were aiming not to give me details as they had no cca or statements or anything from Advanta days? Bit odd how they seem to have nothing from Advanta days or maybe I have not read enough threads??

 

Any idea anybody when exactly it all changed and implications etc?

Even if they do unearth the original Advanta agreement, how will they square this with the dodgy Mint agreement they sent? Think they have shot themselves in the foot big time - you could have some fun with this;)

RBS just seem to have stopped replying to all my letters. I have a complaint regarding a separate RBS card ref charges and inaccurate statements with FOS so they are using this as an excuse not to write on these non-related matters as they have given me their final response! (separate card!)

No reply since to my letter stating but it's unenforceable and asking several precise questions.

I will wait to see if they - or some DCA - starts contacting me until I mention this CCA which is Mint and not the original Advanta.

I am pretty sure I did not sign anything to change agreements. If there is an Advanta CCA then I guess they'd have to explain why they sent me a Mint one!? Unless they are allowed to use this Mint name and account on the cca as part of their my S78 cca request response (??) even though it was called Advanta originally? They did send me the Advanta original T+Cs I recall.

I know I didn't receive a new agreement when the account changed to Mint.

If you signed an RBS Advanta agreement and they have transposed your signature onto a Mint agreement They will have some very awkward questions to answer:D

Hi, I have had a reply from RBS with an Advanta App and T&C's from 1997 so they have copies of some of them. If they can't find yours and have put something together showing your signature on a Mint App then they are living dangerously!

me too. Got an app form and t & c seperate, state they have complied with the CCA 1974 (which they have) but have told them its not enforceable and they cant process my data until they prove I gave my permission.

Acc was passed to Triton (in-house DCA) sent them a snotty letter threatening legal action and their reply was sorry but we have sent account back to RBS/Mint.

Mint also tried to make out I had had a replacement card in 2005 and sent the t & C`s for that (been paying £5pm since 1999, so dont think they would have sent me a card;))

me too. Got an app form and t & c seperate, state they have complied with the CCA 1974 (which they have) but have told them its not enforceable and they cant process my data until they prove I gave my permission.

 

Acc was passed to Triton (in-house DCA) sent them a snotty letter threatening legal action and their reply was sorry but we have sent account back to RBS/Mint.

 

Mint also tried to make out I had had a replacement card in 2005 and sent the t & C`s for that (been paying £5pm since 1999, so dont think they would have sent me a card;)) Lol, does their incompetence know no bounds?

I'm impressed that you managed to get rid of Triton. I've had no end of snotty letters from them - they're even threatening to take me to court with no agreement! What did you threaten them with, exactly - if you don't mind me asking?

the Mint 'mock-up' has no signatures - just like the Capital one mock-up... lots of information to comply with CCA request and that's it. I also got rid of Triton after one letter which was surprising at the time. I had an FOS complaint coming up so perhaps they 'withdrew' triton because an adjudicator had just been allocated?

They are simply not answering letters now.

Below my original letter to RBS/Mint that prompted the pass on to Triton and the replies to Triton (received a crossover letter before they had dealt with my reply).

RBS Mint

Miss H Bennett

Customer Service

PO Box 5747

Southend-on-Sea

SS1 9AJ

Account in Dispute

Dear Miss Bennett

Ref: Mint Visa Ref:

Thank you for your letter of 9/4/09, the contents of which have been noted.

You appear to be under the impression that you have sent “a true copy” of an agreement, when in fact you have supplied an Application Form that contains many discrepancies that render it unexecuted under English Law *1, 2, 3 , 4 & 5. Therefore this account has become unenforceable at law as you have failed to provide a copy of an executed and enforceable agreement. RBS/Mint therefore cannot lawfully pursue any enforcement activities. The lack of a properly executed Consumer Credit Card Agreement is clearly a reason for the account to be in dispute. Consequentially any legal action you pursue will be averred as both unlawful and vexatious. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

You have also failed to provide any information held on your computer systems e.g. screen grabs of account details, these were requested at the same time and should be provided under s 7 of the CCA. I find it hard to believe that you do not hold any information about me on your computer system!

Please note you may also consider this letter as a statutory notice under s 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and those held with any Credit Reference Agencies. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

The reason for this demand is that you have not proven that I have given my permission to you to process my data. It is not sufficient to simply state that you have a ‘legal right` as without my written permission you have no right to do this. I refer you to *6, for the consequences of processing data illegally to the detriment of a persons credit rating. You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 14 days I will accept this as your agreement to remove all such data by yourselves and those held by any credit referencing agencies.

Furthermore you should be aware that a creditor is not permitted to take any action against an account whilst it remains in dispute. Please inform your recoveries department of this fact.

The lack of a credit agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

I would also point out that yet again I have received letters from RBS/Mint that have not been sealed and open to public scrutiny. This is a breach of guidelines as set out by the Information Commissioners Office.

If you are not sure of anything contained within this letter I would suggest you take advice from your local Citizens Advice Bureau or trading Standards office.

Yours faithfully

*1.

Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000)

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

*2.

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

*3

CCA 1974

s.61

"(1) A regulated agreement is not properly executed unless -

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner”

*4

CCA 1974

S.127

Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under -

(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)."

*5

The Vice Chancellor Lord Justice Chadwick in the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from Epsom County Court (HHJ Hull)

Wilson v First County Trust [2000] EWCA Civ 278 (3 November 2000)

26. The question arises from the terms of s.61 (1), 65 and 127 to which I have referred in paragraphs 9 and 10. It is apparent from the terms of s.61 (1) that there are several grounds on which a regulated agreement may be "not properly executed" so as to require enforcement by court order under s.65. The restrictions on such enforcement contained in s.127 are in two forms; the first (s.127(1) and(2)) leaves it to the discretion of the court, the second contained in s.127(3) is an absolute bar if the regulated agreement did not contain the prescribed terms.

*6

Judgement of SHERIFF J K TIERNEY

Durkin v DSG Retail & HFC Bank PLC (May 2008)

120. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

121. I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

&

Triton Credit Services

PO Box 5827

Basildon

SS14 1XS

Account in Dispute

Dear Sirs

Ref:

I acknowledge your letter dated 18th May 2009. This letter is a response to the one received from Triton and also the one received from Mint dated 17th May 2009. As you are part of the same organisation I will reply as such with only one letter for the avoidance of misunderstanding.

I now accept that I will not receive an executed and enforceable agreement from your client. I refer to their letter of 17/5/09 paragraph 4 “This means that there is no obligation for us to provide a copy of the original agreement bearing signatures”. I suggest that this statement indicates your client does not possess an executed Consumer Credit Card Agreement. They are clearly relying on an Application Form that does not conform to the requirements of the CCA 1974 and a set of Terms & Conditions that bear no relation to the aforementioned Application Form as the basis for their claim of alleged debt *1.

Your client is still insisting that an Application Form is a Consumer Credit Card Agreement regulated by the CCA 1974 even though the prescribed terms are not present in the required form *2 & *3. Your client insists the account is not in dispute, but the lack of a legally enforceable Consumer Credit Card Agreement is clear grounds for dispute. In this respect they have failed to follow procedures they have signed up to (OFT) with regard to complaints i.e. the matter should go to a higher ranking named individual in the organisation, be investigated and a written reply sent within 8 weeks. This is another breach of rules Mint claim to abide by, but don’t. I would also suggest your client reads the following:

CCA 1974

s.61

"(1) A regulated agreement is not properly executed unless -

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner”

&

S.127

Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under -

(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)."

Your client may have partially met the requirements of s (78) CCA 1974, but by supplying the information they have they have also shown that the debt is not enforceable even by a court order. *3 I am still awaiting the information Mint hold on me on its computer files, after a number of requests I am still no wiser as to the information they hold (another breach of the DPA). I would also point out no explanation as to why letters arrive unsealed (another breach of the DPA) has been given either.

With regard to your clients assertion to be able to process my data because “details of these procedures were contained in the credit agreement/application form which you signed when you applied for the card”. I again ask for a copy of the Consumer Credit Card Agreement showing my permission has been given. I would refer you to Durkin v DSG Retail Ltd & HFC Bank PLC*4 for Case Law on damages to credit rating due to illegally processing personal data, something your client insists they are still prepared to continue with.

I would also ask for clarification of the statement in paragraph 10 regarding a Default. Please supply details of this as to date I have had no notification nor had a copy supplied with my Subject Access Request.

You should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of an executed Consumer Credit Card Agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

I once again remind you of the following:

• I currently earn approx. £pw, owe £ to creditors, live with a registered disabled relative who I help to care for, have no assets or any likelihood of gaining any and I will never be able to get credit again so I have nothing to lose in vigorously defending any claim by any of my creditors.
  

I am sure you will agree that in these circumstances if you chose to issue proceedings a Judge would in all likelihood award no more than a nominal sum to be paid to your client if by some remote chance you won the case.

If there is anything contained within this letter that you do not understand I would recommend contacting your local Citizens Advice Bureau or obtaining independent legal advice.

To ensure a correct “paper trail” I will only communicate in writing, do not suggest contacting you by telephone as I will not be doing so.

Yours faithfully

*1

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

*2

Dimond v. Lovell [2000] UKHL 27; [2000] 2 All ER 897; [2000] 2 WLR 1121 (11th May, 2000)

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

*3

The Vice Chancellor Lord Justice Chadwick in the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from Epsom County Court (HHJ Hull)

Wilson v First CountyTrust [2000] EWCA Civ 278 (3 November 2000)

26. The question arises from the terms of s.61 (1), 65 and 127 to which I have referred in paragraphs 9 and 10. It is apparent from the terms of s.61 (1) that there are several grounds on which a regulated agreement may be "not properly executed" so as to require enforcement by court order under s.65. The restrictions on such enforcement contained in s.127 are in two forms; the first (s.127(1) and(2)) leaves it to the discretion of the court, the second contained in s.127(3) is an absolute bar if the regulated agreement did not contain the prescribed terms.

*4

Judgement of SHERIFF J K TIERNEY

Durkin v DSG Retail & HFC Bank PLC (May 2008)

120. The cases of Kpohraror, King and Wilson were all based on contract but it does not seem to me that there is any difference in principle between the nature of damages to be awarded in respect of a loss of credit brought about by a breach of contract, and one brought about by negligent misrepresentation.

121. I find that the pursuer is entitled to an award for the general damage to his credit in addition to an award in respect of the actual loss flowed sustained. Having regard to all the circumstances I consider that an appropriate award would be £8,000.

&

Triton Credit Services

PO Box 5827

Basildon

SS14 1XS

Account in Dispute

Dear Sirs

Your Ref:

In response to your letter dated 2/6/09, received 6/6/09 (2nd class), I will give you the benefit of the doubt as to whether you have decided to totally ignore my previous letter or it has crossed over in the post! I have enclosed a copy for your records, though the original was delivered to you on the 29/5/09.

I do not intend repeating myself and refer to the letter enclosed, but would add that the threat of a debt recovery agent has been noted and will form part of my complaint to the Office of Fair Trading as this goes against their guidelines to which you have signed up to. I have also included other guidelines broken with regard to this matter:

OFT Guidelines July 2003 (updated Dec 2006)

Physical/psychological harassment

2.6 Examples of unfair practices are as follows:

e. not informing the debtor when their case has been passed on to a

different debt collector.

j. acting in a way likely to be publicly embarrassing to the debtor either

deliberately or through lack of care, for example, by not putting

correspondence in a sealed envelope and putting it through a letterbox,

thereby running the risk that it could be read by third parties.

Deceptive and/or unfair methods

2.8 Examples of unfair practices are as follows:

i. failing to investigate and/or provide details as appropriate, when a debt is

queried or disputed, possibly resulting in debtors being wrongly pursued.

Debt Collection Visits

2.12 Examples of unfair practices are:

f. visiting or threatening to visit debtors without prior agreement when the debt is deadlocked or disputed.

I do not agree to any visit and have no intention to make an appointment with you. I shall have no problem contacting the local police if you follow through with your threat as this is considered harassment.

If you do not understand the contents of this letter and require assistance please contact your local Trading Standards or Citizens Advice Bureau who will be able to assist.

Yours faithfully

Hope they may help.

The problem with RBS is like all banks they have sections that overlap so you rarely get a reply from the same person, they earn 12k and think they know the law when the clearly dont.

Phew thats one hell of a post:)

Phew thats one hell of a post:)

It certainly is - thanks Spartathisis:)

OK so now that RBS Mint have:

a. apologised for quoting me section 35 of DPA to avoid sending me documents to my SAR request and

b. still state they have sent all documents relating to my account in the SAR (contradictory or what!!???)

The only thing they sent in relation to Advanta ie the original account when I opened it (!!) was a copy of the T+Cs.

Am I right now to be able to use their SAR justification 'we did send you all SAR documents' as proof they have not got anything whatsoever other than T+Cs for Advanta.

They have sent absolutely no statements (unless they are using some 6 year rule for SAR which I need to check as I recall it was coincidently 2003 or thereabouts that they sent statements from - which I also believe coincidentally was when Mint took over?? Another coincidence this 6 year SAR - is there a 6 year rule?). In fact they asked me for the Advanta account number.

So as I am digressing - IF Mint state they have sent me all documents regarding my SAR and there's absolutely nothing other than T+Cs in there for my original account does this mean something, anything - to who and how!?

Anybody got any further feedback on whether Banks eg Mint can just go and change account / card number? The original Mint card number very different to the Mint one.