MBNA - At it again

[cashins]

Yep, had a feeling that might be the case and if I went after them the onus would be on me to show that it didn't arrive saturday which would be tricky.

 

david

[BRIGADIER2JCS]

I think so David.

[Old Cogger]

Postal guidelines:

PRACTICE DIRECTION MASTER OF THE ROLLS BICKFORD-SMITH POSTING TIMES.doc

[Old Cogger]

I have in the past got a default erased on technical grounds, ie they had cocked up and the notice wasn't legally valid.

 

This one is MBNA and validity of the notice is the only way I will get anywhere. Hence the question about the post.

 

david

 

 

MBNA send out 2 UK Mail which takes a minimum 4 working days. this has been proven in court it seems.

[cashins]

Postal guidelines:

 

Now there's a thing - they're a day short.

 

Thanks

 

david

[cashins]

MBNA send out 2 UK Mail which takes a minimum 4 working days. this has been proven in court it seems.

 

Everything I ever had from them was as above.

 

I think they are stuffed.

 

Thanks David

[cashins]

Next up, who would I raise this matter with?

 

MBNA posted the default, but as, after desperately searching for the '98 vintage agreement, they wrote and admitted they have no trace of it.

 

On that basis they flogged it to Arrow /Global who then took the default over.

 

Who would I go after MBNA or Arrow.

 

David

[BRIGADIER2JCS]

Remembering that these are postal ''guide lines''.

Did you keep the envelope David?

[Old Cogger]

Read this one?

Harrison v Link Financial Ltd ALL ER (2011).pdf

[Old Cogger]

Google harrison v link and you may gain further insight?

[cashins]

Remembering that these are postal ''guide lines''.

Did you keep the envelope David?

 

Hi Brig, no I didn't.

 

What I did however was at the time was drew up a summary sheet re what I thought was wrong with the DN

which has a date received (11the Nov) and the fact that 60% of the DN ammount was charges).

 

Didn't realise the importance of the envelope at the time.

 

I had forgotten this as when Reston's tried to bring action early 2009, they dropped it as MBNA could not produce the agreement.

 

Just to make sure I also CCA'ed MBNA direct and they confirmed that action was no longer contemplated as the agreement was gone

- but they still wanted the money!!!

 

After that I stopped worrying about it.

 

I only got interested again when I saw a post of yours on another thread regarding legitimate reasons you could get a default removed.

 

At that point I went right back through the, (very thick) MBNA file and found the summary.

 

Further thought on this however has raised further questions.

 

I very much doubt at this point that they could issue another default.

 

Am I right in thinking that they could continue posting the payment history, (which would be just as damaging),

 

probably for 6 years from the last payment on the account?

 

David

[citizenB]

Cashins, if they have terminated and assigned the account onwards, then it is unlikely they will be able to issue a further default notice.

 

The Harrison v Link case is quite interesting and basically covers all the issues that MBNA have with their older agreements. They did not keep copies / templates of these and didnt even start to build a library of them prior to 2009. In Harrison, they had several attempts at getting it right. Fortunately Harrison did eventually find his own copy, aside from the fact that those provided by MBNA were so totally wrong it was laughable. The original that Harrison found did NOT contain all the prescribed terms .. oops !!

[citizenB]

Remembering that these are postal ''guide lines''.

Did you keep the envelope David?

 

This is not "guidelines", Brig !!

 

 

 

 

Council Tax Manual - Section 3 - Appendix 3.6 - Service of documents by post

 

Appendix 3.6 - Serviceof documents by post

 

AllText Amended

 

· 1. Interpretation Act 1978, Section 7

 

· This states:-

 

"7. Where an Act authorises or requires any document to be served by post (whether

the expression "serve" or the expressions "give" or" send" or any other expression is used)

then, unless the contrary intention appears, the service is deemed to be effected by properly

addressing, pre-paying and posting a letter containing the document and, unless the contrary is

proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

 

Service of Documents -First and Second Class Mail

 

"With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following

is substituted therefore.

 

· 1.

Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary

has been proved, at the time when the letter would be delivered in the ordinary course of post.

 

2.

To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the

ordinary course of post was effected:-

 

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

 

"Working days"are Monday to Friday, excluding any bank holiday.

 

3.

Affidavits of service shall state whether the document was dispatched by first or second class mail.If this

information is omitted it will be assumed that second class mail was used.

 

4.

This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8 March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

[BRIGADIER2JCS]

I'll leave this to Citizen B David.

 

CB Thanks for the enlightenment.

Edited April 1, 2013 by BRIGADIER2JCS

[cashins]

I'll leave this to Citizen B David.

 

Ah Brig, but it was a post on another thread regarding legitimate reasons for default removal that revived the issue in the 1st place, for which I thank you.

 

What I am not sure of is - if I got the default removed, would the, (just as damaging) payment history remain and for how long would it stay on file?

 

David

[cashins]

Thanks for your input as well CB

 

David

[BRIGADIER2JCS]

Ah Brig, but it was a post on another thread regarding legitimate reasons for default removal that revived the issue in the 1st place, for which I thank you.

 

What I am not sure of is - if I got the default removed, would the, (just as damaging) payment history remain and for how long would it stay on file?

 

David

 

The whole entry should be removed if they intended to properly remedy the dispute, though some companies may ''want'' to show the 'conduct of the account'' which would remain for the balance of the 6 years.

Edited April 1, 2013 by citizenB

[cashins]

One last question on this (promise).

 

Who would I take to task on this, The OC MBNA or Global/Arrow who currently hold both the supposed debt and the default tag?

 

Thanks

 

david

[matttye]

One last question on this (promise).

 

Who would I take to task on this, The OC MBNA or Global/Arrow who currently hold both the supposed debt and the default tag?

 

Thanks

 

david

 

If you're arguing that the default is invalid because of the way the original default notice was served (i.e. late) then it would be the OC that has to answer to that. If the original default is deemed to be invalid then there wouldn't have been any default for Arrow Global to take over.

[BRIGADIER2JCS]

MBNA for this David.

[cashins]

Cashins, if they have terminated and assigned the account onwards, then it is unlikely they will be able to issue a further default notice.

 

The Harrison v Link case is quite interesting and basically covers all the issues that MBNA have with their older agreements. They did not keep copies / templates of these and didnt even start to build a library of them prior to 2009. In Harrison, they had several attempts at getting it right. Fortunately Harrison did eventually find his own copy, aside from the fact that those provided by MBNA were so totally wrong it was laughable. The original that Harrison found did NOT contain all the prescribed terms .. oops !!

 

On the DN I think they would have a prob anyway. Can't see that they could issue a current DN 5 years after the cause. If they issued a backdated one - it wouldn't be possible to rectify the position within 14 days!!

 

Puzzled by Harrison as they were trying to reconstruct a '98 agreement - thought that they had to produce the original in court for ag's pre 2007?

 

David

[BRIGADIER2JCS]

As said before David DNs are not routinely stored as hard copies or electronically stored, all the ''creditor'' needs to do is place a ''note'' on the debtors records that a DN was issued on a particular date.

 

Harrison seem to remember was dealing with an agreement that was ''misplaced'' and not one that did not exist.

 

Recons MAY satisfly a sections 77/78 CCA '74 request in this situation I think but would not be enforeceable without the original document.

[citizenB]

There was a Judgment handed down some years ago (I wish I could find it, I think it would be very useful) where the Judge permitted "reconstruction" because of a fire or flood that had destroyed 100's of agreements.

 

The Bank said they could reconstruct the agreements from data they held at another location. The Judge agreed that in circumstances such as that, it would be unreasonable not to allow the reconstruction. BUT, they had to be "truthful" reconstructions.

 

My argument here is that this was an exceptional case and should not be used by banks/creditors who suddenly decided to routinely destroy data without keeping the relevant data should it be required. Nor should it be used by banks/creditors who suddenly realised that their agreements did not meet the criteria for the Consumer credit Act.

 

HSBC made the mistake back in the 1990s to issue credit cards alongside Debit cards. NO agreements were ever signed. Yet they have tried on several occasions to "reconstruct" them.. hardly truthful IMHO.

[citizenB]

I think in this article it states that MBNA were unable to accurately/truthfully reconstruct documents prior to 2004

 

http://www.bbc.co.uk/news/business-13349239

[BRIGADIER2JCS]

Certainly I agree that the judgement was ''specific'' but unfortunately the judge did not say so, hence the now routine ''misuse '' of said ''case law'' by DCAs.

I'm seeing numbers of recons now that are being supplied with various caveats such as, ''this is a reconstuction of the agreement that you would have signed when the account was opened'', follwed by ''How ever some data may not be identical to that on the original agreement''.

''The document fulfills our obligation under sections 77/78 of CCA 1974''.

 

This I have notyest seen argued in court, but I think put forefully before a judge it would be found wanting.