AA99 v MBNA (Account 1)

[Darset]

Ah, yes of course; thanks.

[macie]

darset, i would be interested in the details of the 1882 case law that defines a "true copy"

[Darset]

Only info I have is that is was Hewer ex parte Kahn, 1882 where the judge ruled on what constituted a true copy (presumably as a result of claims made there). I've not had time to search yet but shall do later - perhaps you'll find it and can duly post a link.

[AA99]

So is this the LBA for a case under ss7, 13, 14 of the Data Protection Act 1998?

 

No idea, you tell me

[steven4064]

You mentioned LBA in post #163. Are you saying you are going down the court route under the Data Protection Act?

[citizenB]

If it were me, I would be getting the paperwork ready to send off to the Information Commissioner.

 

According to their office (I phoned them a few days ago) non-compliance with CCA requests is nothing to do with them but is a matter for the OFT. I then rang Consumer Direct (OFT doesn't deal direct with the public, apparently) who were charmingly clueless but took details and duly had a local Trading Standards officer call back. I wasn't actually enquiring about non-supply but about what seemed to be wrong supply, namely unsigned copies of current T&Cs. He confirmed initially that a "true copy" could be supplied instead of an exact copy of the original, and gave an 1882 court reference to what a "true copy" could be, namely something which had to be so close to the original that no one reading it could possibly misunderstand it or be misled by it [as to what was claimed to be the case].

 

When I mentioned "credit card" in passing he then said that different requirements applied to C/Cs - which, as rolling agreements, is true and duly allowed for in the Act - and seemed to suggest that because something had indeed initially been agreed and which allowed for changes - again, true - that supplying later T&Cs was sufficient, something I don't actually accept, at least not in the simple view of C/C companies and, apparently, this TS officer.

 

That aside, it does seem to be the OFT/Trading Standards' responsibility.

 

Darset, you are absolutely correct in that the ICO will not investigate non compliance wof CCA requests.

 

What AA was advised to contact the ICO for was the non compliance of his/her Subject Access Request. Ensuring compliance with that is their responsibility.

[macie]

Hewer ex parte Kahen (1882) LR 21 Ch.D. 871 at 875

 

thanks to CitizenB

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/152498-response-trading-standards-re.html#post1620387

[citizenB]

LOL, thank you Macie. I knew I had seen it somewhere before. How embarrasing that it was on my own thread:oops:

[AA99]

While I was away, we received MBNA Accs.2&3 Subject Access Request's on 29 November (Royal Mail Special Delivery), deadline date was 21 November, and I don't understand a word of the 30-page document, it's all in 3-letter code with one page of code-translation.... from what I've flicked through so far, it looks pretty one-sided with continuous reference to CH (Card Holder) refusing to speak to anyone and Mrs AA99 (referred to my wrong name) being very aggressive and very rude and telling them to write only.

 

Their covering letter states "Please note that only information relating to yourself held on our files will be disclosed to you. Please be advised copies of your original application forms will follow shortly." Signed by A Hughes, Compliance Department, Chester CH4 9WW

 

I have just had the most horrendous call from David Schillen (?) at MBNA - thankfully recorded - don't really know how to sum it up except he was aggressive, laughed at me and hung up on me !

[AA99]

While I was away, we received MBNA Accs.2&3 Subject Access Request's on 29 November (Royal Mail Special Delivery), deadline date was 21 November, and I don't understand a word of the 30-page document, it's all in 3-letter code with one page of code-translation.... from what I've flicked through so far, it looks pretty one-sided with continuous reference to CH (Card Holder) refusing to speak to anyone and Mrs AA99 (referred to my wrong name) being very aggressive and very rude and telling them to write only.

 

Their covering letter states "Please note that only information relating to yourself held on our files will be disclosed to you. Please be advised copies of your original application forms will follow shortly." Signed by A Hughes, Compliance Department, Chester CH4 9WW

 

I have just had the most horrendous call from David Schillen (?) at MBNA - thankfully recorded - don't really know how to sum it up except he was aggressive, laughed at me and hung up on me !

[AA99]

According to their office (I phoned them a few days ago) non-compliance with CCA requests is nothing to do with them but is a matter for the OFT. I then rang Consumer Direct (OFT doesn't deal direct with the public, apparently) who were charmingly clueless but took details and duly had a local Trading Standards officer call back. I wasn't actually enquiring about non-supply but about what seemed to be wrong supply, namely unsigned copies of current T&Cs. He confirmed initially that a "true copy" could be supplied instead of an exact copy of the original, and gave an 1882 court reference to what a "true copy" could be, namely something which had to be so close to the original that no one reading it could possibly misunderstand it or be misled by it [as to what was claimed to be the case].

 

When I mentioned "credit card" in passing he then said that different requirements applied to C/Cs - which, as rolling agreements, is true and duly allowed for in the Act - and seemed to suggest that because something had indeed initially been agreed and which allowed for changes - again, true - that supplying later T&Cs was sufficient, something I don't actually accept, at least not in the simple view of C/C companies and, apparently, this TS officer.

 

That aside, it does seem to be the OFT/Trading Standards' responsibility.

 

Quote:

Originally Posted by citizenB

If it were me, I would be getting the paperwork ready to send off to the Information Commissioner. :grin:

 

 

I have today sent off the Subject Access Request non-compliance documents to the Information Commissioners Office.

 

I have also received this morning a very fancy envelope, italic typed, Xmas stamp, looks like a Xmas Card B U T it's a lovely pretty template letter from MBNA dated 11 Dec, posted in Crewe on 16 Dec 1st Class stamp, received 18 December. It is headed "Don't waste this opportunity"

Edited December 18, 2008 by AA99
mis-quote

[AA99]

Account no.3 - have just received an email,

 

we would much rather come to an agreement with you directly than take further action however, you are leaving us with no choice, blah blah blah

 

[lexis200]

Snap, I got that envelope too, but it seems they ONLY HAVE A LIMITED TIME TO HELP me:)

 

If what they're doing is 'helping', then they've been doing it for the past 5/6 months:rolleyes:

[steven4064]

Is this a new definition of the word 'help' that we've not come across before?

[angel_1]

oops or it may be they are feeling like being kind and offering goodwill to all, how come im not getting the letters oh dear def off their xmas card list then,,,,,ill go off in the corner and cry! lmbo

 

laters guys,,,angel x8)

[AA99]

I filed online my ICO report on 18 December. On 24th I received this covering letter together with current T & C's and a latest statement. There is also a fictitious plain copy of a letter dated 15 October saying here are your T & C's (I don't have that letter in my records!)

 

http://i390.photobucket.com/albums/oo349/AA99/MBNA/MBNALetterdated23DecforCCA.jpg

[AA99]

Received an acknowledgement dated 22 Dec, from ICO. Will give me a ref no. when a Customer Service team member has looked at my case:confused:

 

Anybody had a chance to look at what I received from MBNA pleeeeeeese:(

[davey77]

"we are sorry we have not been able to supply you with a photocopy of the original". How very nice of them to put it in writing!

[AA99]

Thank you davey, after all the reading and writing I've done on here does that now mean they don't hold an enforceable CCA on my account? Which template letter is it next?

[davey77]

Hey, going to go through your thread in the morning to refresh my grey cells! Will write then..

[AA99]

thank you

[davey77]

Hey, well, firstly. Some of your links don't seem to be working (or are very small) so i was unable to look over those agreement details again: Posts: 99,112,113,115

 

But, It seems you have three issues.

 

1. Harassment by telephone

 

2. No properly executed agreements (from what i can tell)

 

3. SARs not received in time

 

 

No.1: Abusive and misleading phone calls should be recorded. If you haven't got that recorder yet then i found this link that works well (at least with my nokia):

http://www.consumeractiongroup.co.uk/forum/telephone-recorders-reviews-write/168331-nokia-6230i-mobile-phone.html

 

What proportion of these calls are silent automated ones or from humans?

I haven't read you mention automated silent or abandoned calls especially but only from people. If it were the first one then you could make a complaint to OFCOM who view more than 1 silent call generated by a computer dialling system within a 72 hour period inappropriate and is classed by OFCOM as harassment.

 

New rules to protect consumers from silent calls | Ofcom

 

Unfortunately it seems OFCOM are less than helpful when it's humans on the other end of the line (no matter how abusive they are) as they direct you to your phone provider and/or the Police.

 

I have written to them recently to ask for clarification on the subject. I'll post the letter up in a moment so you can see what i mean.

 

No.2: I think you have said everything that needs to be said. I like the letter post 66. That covered a lot although remember it's doubtful that ever gets read all the way through if at all by these organisations.

 

(If you post up those links as big as possible that would be good.) Lets assume for now they don't add up.

You can keep requesting the agreements over and over again (as i have done) and get the same (or no) response.

 

I would request again under a slightly different tack in that:

"Thank you for your letter of the 23 Dec 2008 in which you stated that an original photocopy of any signed agreement was not available. I'm sorry to say that your reply and the documents enclosed were not sufficient for my purposes nor did they give any clear indication that a properly executed agreement exists.

 

I must therefore insist that any original agreement be located as a matter of urgency. Sending an unsigned copy that does not contain the Prescribed Terms embodied within any signature document as defined in Law will not be sufficient to fulfil my request, only a copy of any original, and Full contract in its unaltered form will suffice in these circumstances.

 

If the Original document cannot be found to fulfil this request then i ask that you write detailing your proposals to resolve this unsatisfactory position, for as i am sure you are aware, that without an original document as stated above, or only a document with mis-stated or missing Prescribed Terms an 'agreement' can be rendered unenforceable in a Court of Law.

 

Please also note that i will consider your reply to this request to be a Statement of Truth in Law and therefore Legally Binding and may be produced as evidence in any Court Action i may instigate. (To be honest i don't know if that last part carries any weight but it sounds good!)

 

I would also look at PT2537s thread here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

I think that's the route i am going to go down after spending 18 months asking for Credit Agreements under the CCA 1974.

 

No.3: (SARs) you sorted out with a complaint to the ICO. That's good and now you have a reference number to quote at anyone who asks. You SAR'd all three MBNA accounts and made three complaints to the ICO i take it?

Wait and see what happens with those complaints. It they start to take too long or the ICO don't update you then chase them up and politely ask them to get a move on!

 

Options:

 

ICO you have done.

 

FOS: The FOS take months - Probably won't uphold your complaints and i have also found out lately that they dont charge the Creditor in the first instance. It's the forth complaint in the first 12 months which is a real shame actually:

 

http://www.financial-ombudsman.org.uk/publications/technical_notes/QG1.pdf

 

But, as CB says, making a complaint to the FOS does show you consider the matter to be in dispute and it can be verified with a reference number to quote. I had a DCA hassle me once and then they asked for proof i had a complaint lodged with the FOS, once i sent that, i never heard from them again.

So complain by all means but after you have sent it off and got back the ref number i'd forget it and not put much faith in them actually doing anything to help you in IMO.

 

TS: Depends where you live and what luck you have with the person you contact there. Again, it shows you consider the matter to be in dispute (a fact of which can then be verified by a third party.) After the ICO TS should be your next port of call. But dont let them ignore you as they did me. Keep the pressure on them and remind them of the Law (if you have to) and tell them about the phonecalls. I'd be nice and polite to start with but if they mess you around then bombard them with letters and calls until they take action. At the most, they could really help (they have helped some people, i know) and at the very worst they should acknowledge your issues and communicate with MBNA about the calls!

 

CAB: Don't have any experience with them myself but after making your complaint to TS i would call them (if you haven't done so already). You could get lucky and find someone really helpful out there in the soup.

 

OFCOM: Only if you receive silent calls (from a computer). Doubtful any eventual response to my letter will be positive.

 

BBC Watchdog: Consider an email to them.. you never know!

 

Write to the President of MBNA. If he thinks you are writing just to have a go then he won't reply. Keep it polite. Point out you have requested the agreement but have not received one conforming to the regulations and MBNA are acting against the principles of the Banking Code, OFT Debt Collection Guidance and the Consumer Credit Act. (Wouldn't bother adding all the regs and paragraphs, I'm sure he (possibly?) knows them and if your letter ends up 23 pages long quoting regulations he is going to bin it.)

 

Keep it short and sweet if possible.

 

Explain your son has health 'issues' in your own words and your OH also is on mental incapacity benefit (point made by CB in post 87) and the hounding you are receiving is only adding to your family's heath worries and the direct actions of MBNA are blocking the phone line that may be needed for medical emergencies. (You may have to give up your mobile because you can't afford it anymore etc.)

If you are still having problems with Cap1 calls then do the same there.

 

LBA: Should only really be sent if you have every intention of seeing it through to the end. Or at the very least issuing an N1, getting a hearing date and doing all the paperwork for it. LBA letters in themselves don't actually scare the Creditors much especially if you have sent one but don't then act upon it. Should you send another at a later date (serious or not) they simply won't take it seriously enough.

 

I sent a couple in the early days before i really knew what they were all about and it had no positive result. Only when i then issued the N1 and then spent 7 months with back and forth replies with all the Court stuff did it have an effect. (A few days before the hearing.)

 

If you decided to go the hole-hog (N1 issued) then be aware that future complaints to the FOS, ICO and TS would probably be met with 'we will await the outcome of your Court case and it would be inappropriate to investigate at this time'.

 

whoops.. 3.20am..time for bed!

Edited December 30, 2008 by davey77

[davey77]

OFCOM LETTER - Sent 18 Dec 2008:

Dear Sir/Madam,

I would like some clarification on OFCOM’s new rules introduced March 2006 regarding nuisance calls. Also OFCOM’s general stance regarding these types of call and clarification between the difference in Automated Calling Systems and calls made directly by a person or organisation and how those are viewed or dealt with by OFCOM..

 

I understand from reading OFCOM’s website that you classify several silent calls received by a consumer within a 72 hour period as harassment? There are provisions for classifying silent calls, the quantity and intent, but my query is that, surely if a computer system that calls several times a day is classed as harassment (and in doing so unduly upsets the receiver of those calls) then what is OFCOM’s policy in regards to calls that are not silent?

 

I have myself, and have helped several people in the past, deal with (or try to deal with) nuisance calls from Creditors and Debt Collection Agencies. Personally i received 8-13 calls a day, 7 days a week from 8.30am to 9.45pm. My letters requesting that they cease and desist under the Administration of Justice Act and that i would only communicate in writing and that i considered constant calls, many silent and many demanding unreasonable payment, were ignored and fell of deaf ears and thereafter the calls actually increased further. Until that is, i was forced to change my telephone number.

 

I understand there are many variables involved and a creditor may try to contact someone without success in the first instance. Perhaps they work full time or have been unavailable. But where communication has been formally requested to be in writing only after giving ample proof of an inability to pay (including benefit letters, carers allowance etc) and a formal request to stop calling 13 times a day, yet the calls continue, what would OFCOM’s position be regarding that scenario?

 

I read on the website that the Police should be informed if the calls are threatening. I have to say that, from talking to other people that have been in similar situations, that informing the Police is a pointless exercise. Creditors and DCA’s are generally not stupid enough to be outwardly threatening but surely several phone calls a day saying the same thing when a consumer has requested otherwise is a form of threatening behaviour and harassment?

 

If a computer calls 10 times a day it’s harassment, and OFCOM will investigate but if it’s a person representing an organisation who is deliberately trying to intimidate and wear down sometimes vulnerable private individuals in their own homes, then what does OFCOM call that? Not harassment but slightly annoying or nothing to do with them? Isn’t that still a misuse of the telecommunications network whether it be from a machine or a human being?

 

Not trying to be difficult here, just trying to understand OFCOMS position.

I would be very grateful if you could clarify matters.

 

Yours sincerely, Davey77

 

We shall see. Tis the holidays so i guess a reply might take a while, if i get one at all!

[Viscount Stair]

Subbing

[lexis200]

making a complaint to the FOS does show you consider the matter to be in dispute and it can be verified with a reference number to quote. I had a DCA hassle me once and then they asked for proof i had a complaint lodged with the FOS, once i sent that, i never heard from them again.

 

I've had this whole 'when is a dispute really a dispute' thing going for a while now after having several snotty replies from banks when I've stated the account is in dispute, and I'm afraid just complaining to the FOS does not constitute this. This has been confirmed by the FOS and several members on here, including x20. Apparently in order to put the account into dispute, you need to have a reason to dispute the amount owed. Just not having a valid agreement doesn't apparently constitute this. I'll try and find the thread this was on and post up anything relevant.

 

Lexis:)