Re: Distressing phone call from MBNA

[car2403]

Your right to question whether the T&C's are contained within the same document. As the credit limit, interest rate and repayment prescribed terms appear to be in a different document, it would seem that this agreement is unenforceable due to s.61/s.65/s.127(3) CCA 1974.

 

There is a but, though... (sorry!)

 

If, (and it's a BIG IF!) and only if, those terms are in the same document, the debt would be enforceable.

 

The main issues are:

 

* assignment / notice of assignment

* correct amount on any default notice

* correct amount on claim form

* enforceable credit agreement

* penalty charges / collection charges.

 

Have you sent them a DPA SAR yet?

 

In the meantime, I would send them this to get the ball rolling;

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[car2403]

I have got your email, sunflower, but for some reason it was quarantined as spam so I've only just noticed it.

 

I should get around to responding soon - likely tomorrow.

 

[car2403]

Other than that, if the 2nd page is actually on the back of the original document (you won't find this out until it goes to Court) then it can be enforced as it contains the prescribed terms and you have signed it.

 

I have commented on these forums in a number of threads in relation to agreements that have not been signed and dated by the creditor. I believe this is your strongest argument and may well be your only argument if they can produce an original agreement bearing your signature with all prescribed terms on the back.

 

There's nothing wrong in asking the question - is this a corrected executed credit agreement that complies with the Act and all the regulations made under it? Of course they are going to say yes, but then you have to decide how to proceed. Personally, I don't think those terms are attached to that signature document, in which case the agreement is improperly executed and totally unenforceable.

 

As for the creditors signature, remember that the act requires a signature from the creditor, but the law recognises a different definition to "signature" as you and I would understand it. To the layman, a signature is a written "scrawl" showing someone's name. In law, a signature is an undertaking to bargain - in other words, the fact this has logo's and the creditors details on it, along with the fact that they did advance under the agreement and (to a lesser extent) the fact you've made payments, would probably stand up in Court as being signed by the creditor, in all truth. Also, a missing creditor signature (if the court decides it is missing) wouldn't prevent an enforcement order, so this is one to steer well clear of in your argument, IMHO.

 

The best form of attack is to challenge the construction of the agreement, not the fact the creditor hasn't signed it, then...

[car2403]

Car, I have to say I disagree. The CCA1974 differentiates between agreements that become executed upon the signing by the debtor (these are agreements that already carry the signature of the creditor - preapproved applications in other words) and agreements that are unexecuted at the time of signing by the debtor and become executed only upon the signing and dating by the creditor.

 

Absense of execution (signature and date by the creditor) is not a trifle. Theres absolutely no way the logo serves as a signature in respect of agreements under the CCA1974. If this was the case, all agreements (and many simple application forms) would become binding executed agreements upon signature by the debtor, which is not the case.

 

Do you have any case-law in this area?

 

I don't want to hijack this thread to discuss this car, please have a look at this thread http://www.consumeractiongroup.co.uk/forum/general/114724-cca-not-signed-creditor.html

 

It's not a hijack, as it's relevant to the OP's thread.

 

See this thread, post #86 - Peter Bard is our resident CCA expert; (there is also other expert opinion to support this on here)

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default-5.html#post1215608

 

Hi

Section 127 will not preclude the court from enforcing the agreement if the only breach is that the creditors signature is missing.

As for the lack of signature on the agreement meaning that it was not executed and therefore void this is a view many people have and one i used to subscribe to, i have had to reluctantly change my mind about this and now am of the opinion that this would be of no more of a detriment to efoceing a previously functioning account than unenforceablity due to a missing or incorrect required term.

As i have said in the past if anyone can come up with case law or precident to challenge this i will be more than happy to change my mind but in my experiance there isn't any.

 

Bet regards

Peter

 

Also check this out, where the Court very nearly did deal with this issue finally, but fell at the final hurdle in setting a decent precedent; (post #247)

 

http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability-13.html#post1307327

Edited September 30, 2008 by car2403

[car2403]

This was the only interesting point of the case from your link:

 

"the contract did not become an executed agreement in accordance with the requirements of Section 61 of the Act until it had been signed by both the debtor and by the creditor. It was signed by the debtor on 17th March 1992 and by the creditor on 24th March 1992, and thus did not become an executed agreement within the meaning of the Act until the latter date"

 

Agreements that have not been executed due to failure by the creditor to sign and date the agreement are more in the debtors favour than a properly executed agreement that has some other minor omission.

 

Just to confirm, my main angle is that it is unjust for the Court to order that an agreement which was never executed should be enforced retrospectively and the creditor allowed to fully rely on terms and conditions that were never legally in place. I would argue that the sum of money lent by the creditor should be repaid BUT NO MORE and that the Court should not enforce any interest or charges as per the unexecuted terms and conditions. Why should the creditor be allowed to profit when they have not complied with the legislation, in such an important area as the actual execution of an agreement? This would mean that any interest and charges paid by the debtor erroneously during the life of the unexecuted agreement will be offset against the sum actually lent by the creditor. In effect, neither party will have profited or lost from the situation which in my opinion is the most just outcome.

 

This is a far stronger angle than disputing the form or content of an otherwise properly executed agreement (unless one is arguing for unenforceability under s127 of course).

 

There's nothing to stop them signing it before going to Court though, if that was the case.

 

I understand your point, but the Court has been seen to enforce cases of agreements that have been unsigned by the creditor - there is a clear intention to form a legal relationship and consideration has been given in the form of advancing the funds to the debtor. Without going in to the reasons why this is enough to form a binding contract, which is regulated by the CCA, as you'd need to understand the Court's interpretations of each parties behaviour, we may have to disagree on how this applies in practice in that case.

[car2403]

Johndeevoy, I completely agree with your intrepretation - the issue is that the Courts don't take any of this into account and litigants in person are powerless to enforce their legal rights because of Judicial prejudice.

 

With respect to you, until you've been in front of a Judge that is clearly wrong, but won't admit it, you really don't know how frustrating all this can be for us LIP's.

 

I don't need caselaw to back up my interpretation of what the Courts are doing - you only need to read the threads on this forum to see this going on and I wouldn't expect a member to post their names or case details, etc, for me to rely on them. If you need to see any examples of these, please see my O2 and GE Capital Bank default removal attempt threads, then try telling me I'm wrong. By the way, I'm happy to provide the case numbers to anyone that wants those examples, if you send me a PM.

[car2403]

By continuing to make token payments, you're showing them (and any Judge, should you get that far) that you aren't avoiding the debt - I think this is totally reasonable, albeit I would tell them to swivel and refuse to pay because they can't enforce the debt. Each to their own, but basically, you can't do anything wrong at this stage - paying them is good, not paying them is acceptable.

 

Chill out...

 

[car2403]

You should stick to one thread per issue - otherwise it gets confusing. It also means you get all the advice you need in one place and those helping you don't get confused as to where you are. I hate to say it, but it also stops you getting the wrong or flawed advice, in that more people will be able to see the whole case from scratch, making it easier to keep you on track.

 

 

Site admin: can you delete/merge that other thread, please?

[car2403]

You should really speak to your boss, sunflower, as your colleagues may be deemed to be harassing you at work - from your post above, that is definately a concern for me that you should address.

[car2403]

Hi Car i hope you dont mind! but i sent you an e mail asking for your advice ! but thought id put a reference to it here in case it ends up in your spam folder like it did last time!Thanks for all your help and hope you dont mind me asking advice about crapital one CCA!

 

I've had external auditors in at work recently, (don't ask!) so I've been a little busy...

 

Should get to it soon hopefully.

[car2403]

Hello Sunflower,

 

Thanks for your pm, you have told me that you have again looking at your documents from mbna. The unsigned credit agreement and a copy of what they state is on the back of the ca. You mention that their is no information regarding penalty fees for going over your limit, late payment charges or default fees. Is this correct?????

You tell me that the t&c they sent you with your supposed credit agreement, and on another piece of paper you inform me that the penalty fees are £12, which is in line with the office of fair trading's ruling. This ruling was in 2006 and you tell me that you opened your account in 2002, so these terms and conditions are not applicable to your credit agreement.

 

I would be of a mind to thank them for sending their current t&c, but you wish to be supplied with the t & C pertainent to your credit agreement:grin:

 

Any veiws guys

 

Which you can do using this letter;

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[car2403]

Ok, Just received my mail from MBNA.

Another threatagram i'm affraid .

They told me that they tried to contact me by phone, well i could of told them that as i've blocked there number :D.

They also told me i have failed in responding to there corispondance, lies, lies, lies .

They've also have stated that the MAY take me to Court.

 

The key word there being "may", of course.

[car2403]

I was wondering if what to do next? Should i just leave it for now Or should i write to them again if i dont get a response soon?

 

If they haven't replied, it's time to get even more technical on their asses and try to force their hand.

 

What you want is a letter saying the agreement is unenforceable and won't be collected on and that any information recorded at the credit reference agencies will be removed as a result. This is our ultimate goal.

 

So, send them this;

 

 

[YOUR NAME]

 

[YOUR ADDRESS]

 

 

 

[DATE]

 

 

THE DATA PROTECTION OFFICER OR DATA CONTROLLER

MBNA

STANSFIELD HOUSE

CHESTER BUSINESS PARK

CHESTER

CHESHIRE

CH4 9QQ

 

Dear Sir/Madam,

 

Re: MBNA Account number ****

 

 

Failure to disclose under the Consumer Credit Act &

 

Formal notice to desist from processing or disclosing personal subject data under the Data Protection Act

 

 

I refer to my letter dated ***, which was delivered to you, via Royal Mail Recorded Delivery, on ***.

 

I have recently conducted an audit of my personal credit reports supplied by Experian, Equifax and CallCredit. It is noted that there exists, within all three files, 2 entries referenced as “MBNA” agreements, these being recorded in “Default”.

 

In my letter, I made a request for a copies of the signed, executed credit agreements and true, certified copies of the original signed default notices for the above accounts under s.77(1) & s.78(1) of the Consumer Credit Act 1974, as amended. In addition, statements of the accounts should have been sent along with any other document referenced in the credit agreement. You have failed to fully substantiate information relating to any of the questions put to you in the original letter.

 

S.77(4) Consumer Credit Act 1974, as amended, allows a lender 12 working days to deliver on this request before classing the lender as being “in default” of that request. As such you had until 28 August 2007 to reply to my request with the information required. To date, I have not received this information as requested – therefore, I hold you in “default” under s.77(4) Act;

 

“If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;”

 

As such, I contest that these alleged agreements are regulated agreements under the Consumer Credit Act 1974, as amended, as you have failed to provide a signed, properly executed, copy of the alleged agreement and the agreement provided does not meet the requirements of the Act in that it doesn’t include details of terms and conditions under which you can add default charges to the account. (As I requested a true copy of the alleged agreement you refer to, I must assume that you have sent such an agreement as an enclosure)

 

I now contend that these debts are “unenforceable”, and the alleged contracts between us are now “void” at law. As such, I will not be sending further payments in relation to these accounts and I will consider any further attempt to collect the outstanding balance from you an act of harassment. I also contend that the “Defaults” recorded are unwarranted and unlawful, as there is no regulated agreement under the CCA. Only a properly executed, regulated agreement can be “defaulted” and “terminated” within the terms of the Act. As no such agreement is in existence, no “Default” under the Act can exist.

 

Finally, in relation to these accounts, I now contend that the Default registered is unlawful and illegal as it isn’t supported by either;

 

§ An agreement, regulated by the Consumer Credit Act 1974 – (as amended) therefore, no Default can exist. Any reliance on the CCA to “Default” me in this way will therefore fail.

 

§ A prescribed “Default” or “Termination”, regulated by the Consumer Credit Act 1974 – (as amended) as there is no regulated agreement, you can not rely on the Act’s terms to “Default” or “Terminate” the account.

 

I will now also contest that MBNA's continued processing of my data is an unwarranted act and I enclose a Statutory Notice to that effect, which is deemed served as of the date noted on the Royal Mail's Recorded Delivery service audit.

My written permission, regarding account number ****, allowing MBNA to continue processing, or disclosing, my personal subject data, does not exist. I also dispute MBNA's “Defaulting” of this account, which is visible on my Credit Reference files, for the reasons outlined above. I, therefore, consider that any default appearing on my credit files in relation to these alleged agreements to be wholly unwarranted and unlawful. With regards to account number ****, my permission to continue processing, or disclosing, my personal subject data was revoked upon termination of that original contract and I hereby reiterate that revocation. I also do not recall receiving any such Notice of Default being served on me, as required by the conditions of the Consumer Credit Act 1974. I consider that any default entry on my credit files to be wholly unwarranted. However, if you can supply the copies, then I also contest MBNA's continued processing on the following grounds.

 

As you are aware, I am afforded principled rights under the Data Protection Act (Data Protection Act), Schedule 1, Part 1 ("The Principles") in relation to the manner in which my data is collated, stored and processed. Of particular note, are Principles 3, 4 and 5:

 

“3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

 

4. Personal data shall be accurate and, where necessary, kept up to date.

 

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

 

In my case, MBNA is processing data without my consent. Consent in this case meaning the lawful right to process my data, with my permission, with the Credit Reference Agencies – that information being “publicly available”.

 

This is confirmed in Principle 2 of the Data Protection Act, which states:

 

"2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes."

 

I emphasise the term "specified and lawful purposes" as in ‘those specified within the contract’, and no more. I also emphasise the term "shall not be further processed".

After seeing other cases such as mine being handled, by viewing online consumer action group forums, I am aware that the Credit Reference Agencies are claiming that they have a “legal right” to maintain this type of adverse entry for up to six years. When challenged, they are unable to quote the exact Statute that includes this so-called “legal right” - they in fact remain remarkably quiet when questioned about this. Only after insistence of disclosure do they eventually concede that, whilst they have no statutory right, it is “standard industry practice” but they added that they are “allowed to by Law”. After further challenges, they finally admitted that unless this was a County Court issue, their term actually referred to contractual Law, but continued to emphasise that it was “standard industry practice to record default entries for six years.”

 

After scrutiny of all the relevant legislation, including the Consumer Credit Act (As Amended), the various Financial Services Acts and the Data Protection Act, etc., it is clear that there is absolutely no legislation that allows a lender or supplier (e.g. MBNA) to collate, process or distribute any other information unless there is express written permission from the data subject.

 

In fact, Section 10 of the Data Protection Act awards the real authority, regarding privacy of data, to the data subject, not the Data Controller. The Act is also very clear as to the rights of the data subject in respect of withdrawing permission to continue data processing and disclosure:

 

“10. - (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.”

However, there is some exclusion provisions for Data Controllers, and Section 10 does continue with various exceptions to subsection (1) above, and these are quoted, in full, below:

 

“10. - (2) Subsection (1) does not apply-

(a)in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met,

or;

(b)in such other cases as may be prescribed by the Secretary of State by order.”

 

To paragraph (b), I can only presume that MBNA has not applied to HM Secretary of State for an order allowing you an exclusion, which leaves MBNA with the only remaining possibility of requesting an exemption under paragraph (a).

 

So, we must turn to the exemptions permitted in paragraph (a) to find where MBNA’s Data Controller may invoke his perceived exemption to the Data Protection Act, namely, those listed in paragraphs 1 to 4 of Schedule 2. I have reproduced these exemption paragraphs, in full, below:

 

“1. The data subject has given his consent to the processing.

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

It is my contention that MBNA's supposed right of obtaining an exemption is not contained within any of these paragraphs. I have followed each in turn with my notation to give a clearer explanation, should there be any lack of clarity.

 

1. The data subject has given his consent to the processing.

 

That consent, as no legal agreement exists, therefore, also does not exist.

 

2. The processing is necessary-

(a) for the performance of a contract to which the data subject is a party, or

(b) for the taking of steps at the request of the data subject with a view to entering

into a contract.

 

For both (a) and (b), there is no contract in existence.

 

3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

 

According to the Information Commissioners Office (I.C.O.), exemption 3 includes all other statutory obligations for which the interests of national security and welfare override personal privacy.

 

These obligations allow for the provision of data to Official agencies and organisations, e.g. disclosure to crime prevention agencies (Police, Intelligence Services, etc), official Government agencies (DVLA, DSS, Passport Agency, etc.) and health authorities, etc., and for any other purpose not agreed within a civil contract.

 

We know that the three major credit reference agencies are not Government bodies, nor official agencies, but are “for-profit” companies - even though they like to think they are official. None of these three agencies are listed in the appropriate Data Protection Act Schedule that names the specific organisations that are permitted any such exemption rights.

 

4. The processing is necessary in order to protect the vital interests of the data subject.”

 

With reference to the I.C.O. again, this is interpreted as “anything that affects the data subject as a matter of life and death”. This clause is included in the Data Protection Act to permit data, like medical records or contact details, being disclosed in emergency situations. I do not believe that this case could be described as anything like a matter of life or death.

 

So, it is clear to see that there is neither statutory provision permitting MBNA's Data Controller to assume continued processing rights of my data at his discretion, nor any exemption. I can then only assume that MBNA is relying on the Common Law – as already discussed, above, no such contract is in existence.

 

In summary, in relation to this query, I am formally instructing you, as an authorised officer of MBNA, from this day onwards, to:

 

1) Cease to continue storing, processing or communicating my data; (s.10 Data Protection Act)

 

2) Remove all such data from automated process systems, as per the provisions of Part II, Section 12 (1) of the Data Protection Act, namely: (s.12 Data Protection Act)

a. “An individual is entitled at any time, by notice in writing to any data controller, to require the data controller to ensure that no decision taken by or on behalf of the data controller which significantly affects that individual is based solely on the processing by automatic means of personal data in respect of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct.”

 

Of particular note is the Acts own term “his creditworthiness”;

 

3) Cease to disclose any data relating to the agreements in question, or any other data relating to the Data Subject, to any third party including, but not restricted to, Equifax plc, Experian Ltd and Callcredit plc; and

 

4) Instruct Equifax plc, Experian Ltd and Callcredit plc to remove all data pertaining to your records on me, to the extent that no data entry in relation to MBNA will exist on my credit files.

 

You should be aware that you have, by statute, twenty-one days in which to either comply with my Notice, or give written notice stating your reasons and why you consider the Notice unjustified.

 

Any failure on your part to adhere to these statutory timescales will automatically be interpreted as your non-compliance with the legal procedure. In that case, you will be expected to unconditionally comply with my Statutory Notice or I shall have no alternative but to refer the matter to Information Commissioners’ Office, or the Court to seek an Order to that effect. Should it become necessary to refer the matter to the Court, then I shall also apply for Court fees and legal costs against MBNA. I shall also reserve the right to seek redress for damages as per the remit of the Data Protection Act, this including (but not being limited to) damage as a result of defamation of my character and damage as a result of having to pay higher rates of interest on loans and mortgages as a direct result of incorrectly recorded financial information due to MBNA negligence.

 

I trust that I have made my position clear, and that MBNA will now make a serious effort to understand its legal obligations and effect the changes I requested, within the timescales provided.

 

In any event, I shall expect a written confirmation from you acknowledging the contents of this letter within 5 working days, as per the Banking Code.

 

Yours faithfully,

 

 

 

Mr. C A Robinson

 

Then, on a new page, include this;

 

 

 

 

Statutory Notice pursuant to s.10 and s.12 of the

 

Data Protection Act 1998.

 

 

 

Data Subject Notice;

 

 

To: The Data Protection Officer or Data Controller, MBNA

 

Data Subject: [YOUR NAME]

 

Address: [YOUR ADDRESS].

 

Subject data: "Default” showing on Credit File and processing of information relating to the Data Subject with third parties, both without consent, relating to the Data Subject - account number ****

 

The recording of “Default” information by MBNA, without my consent, against my credit file without having an agreement regulated under the Consumer Credit Act 1974, (as amended) or a legal contract, or any processing by you of that data, in any manner, which would be unfair or inaccurate or which in any way, would breach The Data Protection Act 1998.

 

Therefore, take notice that I require that you cease from processing within twenty one days of the receipt by you of this Statutory Notice, or else that you do not begin to process any personal data of which I am the subject insofar as that processing involves the communication or passing of personal data of which I am the subject to any third party and insofar as the said data relates wholly or in part to the implementation by you of alleged defaults or contractual breaches or breaches contrary to The Common Law.

 

This Notice is given on the grounds that the processing or continued processing by you of the said data will be likely to affect my credit rating and my reputation and cause substantial damage and/or substantial distress to me and my family members in addition to that which has been caused to date. And that as the processing of the said data in the way referred to in this Notice would violate both the Principles and Data Subject’s rights of The Data Protection Act 1998, to do so would be both unwarranted and unlawful.

 

Signed,

 

 

 

 

 

 

[YOUR NAME]

 

Dated this, the ****th day of ****, in the year two thousand and ****.

 

 

There's more on what this letter means in this thread; (it isn't my letter!)

 

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

 

Also, have you sent them a DPA SAR? Now may be the time to do this;

 

 

[YOUR NAME]

 

 

 

[YOUR ADDRESS]

 

 

[DATE]

 

THE DATA PROTECTION OFFICER OR DATA CONTROLLER

MBNA

STANSFIELD HOUSE

CHESTER BUSINESS PARK

CHESTER

CHESHIRE

CH4 9QQ

 

Dear Sir/Madam,

 

Re: MBNA Account number ****

 

s.7 DATA PROTECTION ACT 1998 (AS AMENDED) – DATA SUBJECT ACCESS REQUEST

 

I request that MBNA provides me with all details held regarding my accounts, including;

 

§ Details of all default charges for unpaid items and fees charged for managing the above account, which I have paid in the last six years

§ Copies of all original Consumer Credit Act agreements for each account held in my name

§ True and certified copies of all original Default Notices and Terminations in relation to each account held, or previously held.

§ Details of all manual intervention that has taken place on accounts held in my name, with documentary evidence of such.

§ Details of logic involved in any automated decisions you made about me, or my accounts with you.

 

Please note that this is not an exclusive list, as I require access to all information held by MBNA regarding me, as a Data Subject under the Data Protection Act 1998.

I understand that MBNA is obliged to provide this information under the Data Protection Act 1998. I have enclosed a postal order for £10 to cover the statutory fee that can be charged for this service.

 

I look forward to hearing from you within 40 days from the date of this letter.

 

Yours faithfully

 

 

 

[YOUR NAME]

 

Send this with a postal order - not a cheque - for £10. This is because we do not want MBNA to hold your signature. See here;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/110578-digital-signature-guide.html

[car2403]

Hi car2403

 

Great letters you posted up, i wonder if this is somethink i should send MBNA also is it possable to addopt and send to other creditors the letter you have posted.

 

Gaz

 

They can be amended for any creditor, yes.

 

Hi car! Thanks for comeing to rescue again with advice about next letters to write.Again you have been very helpful!So i will get them typed out and sent soon!The only thing is i have not requested any reports from credit reference agencies so though i am aware there will propably me quite a few adverse comments from MBNA i would not know how many!i dont think i have been properly defaulted by MBNA The nearest ive got to a default is a couple of letters letter saying i have a restriction on account but no mention of a formal default just that they may in future!so in the part of letter that specifys how many adverse entries they have on me should i miss out putting a number on the entries and just say i note there are entries from MBNA being recorded as a default? and not specify a number?I suppose i ought to request a credit report from one of the organisations you mentioned to see what MBNA and other fiancial organisations have written about me which may come in very useful .I suppose if i request my S.A.R - (Subject Access Request) i will see how many defaults have been entered by MBNA in this dispute?sorry i am a bit of a dunce about all this but eveything a bit new and i am not even sure how to go about seeing credit reports about me!

 

I would request your CRA files, just to see what is on there, but I'd still send the letter off anyway. I don't think they will comply with the request, in which case you'll have received your CRA files by the time they either reply or fail to comply with the timescales allowed to reply.

 

Incidentally, make sure you request your statutory credit file from those companies - there's no need to sign up to any monthly payments, IMHO. (Unless you really want to, that is...)

[car2403]

Hi Car! I looked at the thread about credit reference agencies and data protection and explaining about the letter you advised me to write!It did prove interesting reading! It is amazing how much new information about the law and our rights i am getting from this forum!so now i understand more about the letter!Only thing is that it seems to suggest that i sign it in pen but as you say not a good idea to keep signing things ffor banks now as another thing ive learnt from this site is always to avoid my signature on things but would i be able to get away without signing letters or do i need to make up a digital signature to put on the letter that it is suggested i sign?sorry to keep pestering you with questions! You must think i am a pain!LOL but after this message i am going to drag myself away from computer and get some fresh air giving our dog a game in the garden!so i will leave you in peace for a while! Thanks again for all your advice and help!

 

Not a pain... Maybe a pest, but never a pain...

 

Use a digital signature, IMO.

[car2403]

Hi Car2403

 

Yes, i'll get that letter in the post on the beginning of your letter you addressed it to the credit controller. Is there a website where i can retrive the addresses for other creditors, or do i just send to the addresses i've been posting to and head it Credit Controller.

 

That letter should go to the DPA Data Controller for the company you are complaining to - the Act specifically requires it sent to that role to take effect. Sending it elsewhere would still work, but you'd have to allow extra time for compliance to be reasonable. All the more reason to send it to the right role/address in the first place.

 

There's the search on the ICO website;

 

Register of Data Controllers & their roles - Information Commissioner's Office - ICO

[car2403]

Hi Gazza! I think that why it is best to use the digital signature programme that Car put a link to on one of the post Maz has told me about it as well! and she uses it!Apparently it is best to do this as very difficult for someone else to use it if it is a digital one though not sure yet exactly how it works! but will look into it soon !Have you looked at link as i think car thinks it is the best way to do signature,!

 

Either that or just make sure the signature you do use is easily recognisable, such as putting extra lines through the signature or adding a "squiggle" that you don't usually use.

 

Basically, if you see this signatur again, you need to be able to recognise it instantly and prove the source of it.

[car2403]

They've been very clever in the wording of their letter.

 

It's up to you how you proceed. You can either go to Court for an order the debt is unenforceable, or you can continue not making payments and see if they take action against you. (They won't - they will sell the debt, continue chasing payments through DCA's and continue recording this inaccurate data with CRA's)

 

Personally, I would (and have done, many times!) take this to Court and force their hand with Civil Procedure Rules.

 

Your call...

[car2403]

You could simply send them a letter before action. If they don't reply, you'll need to decide what you want to do at that stage. At this moment in time, it's a stalemate and they are winning as you haven't progressed this further. Sending the LBA is the next stage. After that, it's either Court, or you complain to the regulators, get nowhere with them, then have to reconsider Court anyway. If you do go to Court, there's loads of experience on here to get you through it. It's actually a lot less scarey that you think it is right now, but then I've done it before, many times, so I know how you are feeling - I felt the same way the first time I took Court action.

 

The secret is to stick to your guns, learn as you go along, ask for help and - this is the most important step - be in control of your own case... They can't dictate timescales, processes, etc, to you. You have to be prepared to stand up and take the fight to them. If you aren't prepared to do that, you should probably stop now, roll over and play dead, and continue making payments on an improperly executed agreement. It's a tough talking to, I know, but you need to know how they play the game - they will say this and that and the other to get you thinking and give them more time. They are trying to get you to give up. Don't let them win.

 

If you do issue Court proceedings - which you can do online, using a website and a credit/debit card, by the way - you can then use Civil Procedure Rules to get their compliance with your request.

 

If you are unsure as to what to do, I suggest you read the other threads of those that have gone before you - only then can you see how much time and energy of yours do these cheeky companies waste along the way. You're only just beginning out and the game hasn't even started yet. If you're stuck for something to read, thread-wise, take a look at my HFC Bank and RBS threads - all of which involved some of the same issues as your claim and all of which I won. Also take a look at my GE Capital Bank thread, which I didn't win, but learnt loads along the way. (That also shows what happens when you delay, as I'm now out of time to appeal an incorrect Judges decision, so am stuck with a default for the next 3/4 years or so as a result - thanks, Judge!)

 

[car2403]

Hi Guys! Watching this thread with great interest of course. MBNA have till 21st to produce our S.A.R - (Subject Access Request)'s and then it will definitely be LBA letters to them. Good Luck

 

AA99, if they don't comply with the DPA SAR, then Sunflower can take Court action to force their compliance with it - that is a different cause of action, though, not linked to the CCA issues. So, 1 x claim for the CCA issues and 1 x claim for the DPA SAR issues...

 

On the subject of Court fees, you may find you're entitled to help;

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex160a_e.pdf

[car2403]

Car just a question but a seperate company have not complied with my S.A.R - (Subject Access Request) request how would i word a N1 and would i bee entitled to any type of compensation?

 

http://www.consumeractiongroup.co.uk/forum/helpful-external-links/7054-data-protection-act-taking.html

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/6971-data-protection-act-non.html

 

[car2403]

It is a big thing, but this will run on and on if you don't force their hand either way.

 

If it's not a small claim, you do need to be weary of costs - if you lose (unlikely, but possible, of course) you will have to pay Court costs on top of the debt. If you win, the debt will be gone and MBNA will owe you money for bringing the claim against them.

 

Admittedly, it is a risk and you need to weigh up your options. If you don't need further credit, you can run the risk of a default and just stop paying. I wouldn't let the buggers get away with it, but then, you aren't me and I don't know (or want to tell you what to do) what your circumstances are. As I said, it's your call, but this is the most effective way of dealing with it. There are others, but they are known to be a waste of time in some instances. (Financial Ombudsman Service, for example)

[car2403]

It will cost you £100 (payable on claim issue) to issue a Court claim for £5,000. If it gets to a hearing, there is a hearing fee of £500. (Payable 7 days prior to any final hearing) MBNA will likely give you threads of up to £4k-£5k in costs should you lose. I would give it 9-12 months to get the Court action resolved successfully.

 

Reading the other MBNA threads will let you know what you're getting in to and show you that they don't like defending Court cases.

 

Oh, a complaint to the FOS is free for you.

[car2403]

I can only tell you how I feel about all this, but I wouldn't bother my ass with a solicitor. Most solicitors aren't experts on Consumer Credit Law - and if you can find one, they will charge you a decent whack in cash.

 

Everything I have learnt (which is a lot, if you are reading through my threads you'll get an idea of just how much!) has come from this site. There are several well versed, very well established claimants/defendants on this site that you can pick the brains of along the way. You aren't alone in all this, thanks to CAG.

 

Generally, any Solicitor you contact local to you will likely tell you that you don't have a decent enough claim for them to ask you to pay them. The reason being is that they don't know the CCA inside and out. The reason for that is that most debtors won't seek advice from a solicitor regarding credit agreements, so there isn't a "market" for that sought of advice. IMHO...

 

Stick with CAG, kidda - it's free (they ask for donations if you recover some funds, but that's voluntary donations) and it won't mean you have to visit some solicitor on a regular basis.

[car2403]

Hi everyone!

i am touched to see all your support! Thanks again! I dont feel so alone now.i must admit i was stressed out yesterday not knowing what to do for best! but now know what problems we all encounter we face it together and give each other suppport and advice! This is a brilliant forum and i am so glad i stayed with it! As soon a i saw this forum it i thought crumbs everyone here has got some bottle but i cant see myself standing up to these banks like they do! and now i am! and it is lovely to be able to stand up to them and know we have got some rights:)

 

From a tiny acorn a mighty oak does grow...