Virgin/MBNA sold my debt despite agreement

[Carol16500]

After moving to France I hit major financial difficulty and could not keep up payments on Virgin credit card. I contacted them and I was put in touch with the hardship department. I sent statement of income and expenditure. MBNA contacted me and said they needed £85 per month as a repayment plan for the outstanding amounts. At that time I couldn't afford £85 and they asked me what I could afford. I offered £30 and they agreed that I would pay £30 a month and all interest rates and charges would be frozen. Because I was only paying £30 I was told my credit rating would be severely damaged but the debt would not be sold to a debt collection agency. Since August 2007 I have paid each month religiously £30 and even increased the amount to £35. Since then I have had no communication from MBNA regarding my account. Two weeks ago I received a letter from a debt collection agency (Arrow Global) to say that my debt had been sold to them (in January 2008) and they had sold it on to TCMS. I then received a letter from TCMS claiming the whole amount otherwise they would take me to court. As you can imagine I was quite shocked by this and contacted MBNA, who confirmed what had happened but stated they had no record of my £35 per month being paid to them. I actually offered to send them copies of my bank statements to prove that this amount had been paid each month since the agreed date and they went on to say that it doesn't matter because the debt had been sold now anyway. I then went on to contact Virgin, who suggested I contacted MBNA's Customer Advocate Department, which I did. MBNA have now written to me stating that the £35 wasn't enough, which was started in August 2007, and quote "Further to this as you were unable to increase your monthly payments, your account defaulted on 31 December 2007 and was sold to Arrow". They made this statement even though they had not contacted me to ask me to increase the payments any time between August and December. Also in the letter, and I quote, "I assure you your payments of £35 have been forwarded to Arrow". But there is nothing I have received from Arrow to say that they have received these payments. According to MBNA this one letter, which did not answer the questions I had put to them, is the end of their complaints procedure and is their final response on the matter. What can I do???

[PGH7447]

Hi Carol and welcome, you sound suprised that MBNA did this, standard practice I'm afraid

 

OK did MBNA send you a notice of assignment when they sold!! it to Arrow?

 

What you really need to do is now send Arrow or whoever says they own the debt a CCA request

 

this is template N from the following link

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html

 

this costs £1 send it recorded or by special delivery do not sign it. they then have 12+2 days to supply the valid credit agreement.

 

from now on do not call these people and if they call you just say everything in writing and hang up.

 

All the threats of court etc are just that at the moment threats DCA's do not like going to court because it costs them, they would sooner use the threat of it to make people bow to their demands.

[Carol16500]

Thanks for your prompt reply and I will immediately carry out your suggestions.

 

MBNA did not send me a notice of assignment when they sold the debt. They sold the debt to Arrow in January and the first I knew of it was when I received a letter from Arrow dated 25 September 2008 (although I didn't receive it until mid October) along with the default notice. When I spoke to Arrow on the phone they said they would have sold the debt on to TCMS a couple of weeks after they bought it. The letter I received from TCMS was also dated 25 September 2008.

 

I don't know if it's worth mentioning, but the amount outstanding that Arrow say they have is £30 less than when the account was frozen in August, even though I've continued to pay £30 or £35 per month from August 2007 until September 2008. It does look as though these payments were never credited to my account.

 

Is it worth me still talking to Virgin as they were concerned about my complaint against MBNA as it's their name on the card?

[PGH7447]

Send MBNA a SAR this costs £10 and will show all transactions carried out on the account, if they have not credited the £35 a month where is it, this will also show any unlawful charges that you can claim back

 

the sar can be found here

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/516-1-data-protection-act.html

 

again send it recorded with a £10 postal order, they then have 40 days to supply all statments for the account

[Carol16500]

Following your advice I sent a letter requesting documentation relating to the credit agreement. They received my letter on 10 November and I have heard nothing from them, apart from a telephone call threatening to take me to court. What's the next step, please? Also to answer a previous question, 11 months after the event I have never received a notice of assignment from MBNA advising me that they sold my debt.

[PGH7447]

would send them this for starters

 

amended to suit

 

Account In Dispute

Ref:

Dear Sir/Madam

DO NOT IGNORE THIS LETTER - LITIGATION ADVICE

Thank you for your letter of xx/xx/xx , the contents of which have been noted.

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

On the **DATE** I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

On **DATE** a member of your staff signed for delivery of my written request and I have an electronic proof of delivery showing their signature and the date.

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

In my letter of the **DATE** I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

This period has expired.

As you are no doubt aware section 77(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

You have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested.

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.

Please note you may also consider this letter as a statutory notice under section 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 from my records 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.

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

Should you not respond within 14 days I expect that this means you agree to remove all such data.

Furthermore 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 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 reserve the right to report your actions to any such regulatory authorities as I see fit. You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

Despite my letter regarding ANY communication from your company, which stated that I require ALL communications in writing, your telephone calls continue.

This behaviour constitutes harassment; the letters stated quite clearly to you that I require ALL communications in writing for future use. Do not telephone me again - remove any telephone numbers you hold for me from your systems.

Your telephone calls are in breach of the Office of Fair Trading guidelines. If you continue with them after the receipt of this letter an official complaint, together with a log recording the times and frequency of the calls will be passed both to that office and to the Trading Standards office. For your information note that ALL telephone calls are taped.

This type of debt collection method is contrary to the ‘Administration of Justice Act 1970’ in that it is intended to cause alarm and distress to the recipient. Your methods will not be tolerated. A formal complaint, containing copies of all correspondence including yours, has now been submitted to the relevant authorities. This will be relevant to questions of your fitness to hold a licence under the Consumer Credit Act, whether or not it results in a prosecution.

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

HOWEVER, CALLS WILL TRIGGER COMPLAINTS TO THE REGULATORY BODIES.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

[Carol16500]

TCMS have not responded to either of my two previous letters and have not supplied the CCA. I have now received a letter from them which they say is the last warning letter and I have five days to pay the total amount, after which time they will commence judicial proceedings which, they say, will mean they could seize my bank account, sell my furniture or seize my salary. This letter is not signed and appears to be a photocopy. I welcome your advice as to how to proceed.

[mr.ton]

They do not have the aithority to do any of the things they have threatened to do....most of the time, they just come out with these things coz it sounds scary & makes them feel like they have some sort of power, when they dont.

Its for a county court to say what is what & what will happen - not them