MBNA - Warning Letter

[maroondevo52]

http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

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[Watchout]

 

This is what MBNA sent me for the CCA. Any thoughts?

[fedup74]

Well if we could see it that would be a whole lot better. What a cr*p copy. From what I can make out there is no prescribed terms, it is an application and a poor copy at that. They have not got an enforceable agreement here (IMHO) Is that all they sent- what are the terms and conditions applicable to- is there any way that the application and the terms could be off the same form?

[Watchout]

Hi Fedup. Its possible the application and the t&c's are from the same form. Its clear to me that its a microfiche print, so I am doubting that they will have the original.

 

I want to noe tell them to clear off but from reading the threads that will not happen. Certain solicitor firms claim to be able to get the credit card companies to go away (as it were) Can we??

 

They also sent me a copy of current t&c's and most recent statement.

[Watchout]

Letter from MBNA 'We have LIMITED TIME to help you'

 

They are letting me know that they have scheduled my account to be written off as a bed debt. Consequences are

 

MBNA will place account with a third party

MBNA will sell debt to a third party

MBNA will refer my account to a solicitor

 

What I must do is call them. I have sent the all communication in writing letter a month or so ago.

 

What is my next action.

[fedup74]

Hi watchout:) to me these 2 copies look unconnected- your application is readable, the part with the prescribed terms is not- how can they be from the same agreement? They still haven't complied with your request- what they send must be legible. The letter you have received has been spewed out of their template letters- I have a few of these. MBNA don't take any notice of your valid dispute and will sell off your debt anyway. You could send the account in dispute letter, I will have a look around and see if I can get you a relevant one. A lot of people on here don't believe in sending the dispute letter as they will probably ignore it but if you send it you have a paper trail advising them your account is in dispute should they take any further action. Be back soon:)

[fedup74]

Thank you for your recent letter sent to me, postmarked XX XXXX 2008 and received on the XX XXXX 2008 the contents of which are noted.

 

 

First of all I would point out :

 

 

The Application form you have sent is illegible and I am unable to clearly assess its contents. This contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).

 

Regulation 2 states:

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

Furthermore, I note that you have replied to my request by sending a copy of an Application form and your current terms and conditions . I must inform you that this is not sufficient to comply with my request and that your company is still in default under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account providing that a fee of £1.00 is paid. This fee was sent with my original letter, received by you on XX XXXX 2008.

 

Sending an Application form is a breach of the Act and Consumer Credit (Agreements) Regulations 1983 as, apart from the information that the regulations provide that you may exclude, the copy must be a "true copy" of the agreement. For the avoidance of any doubt section 3(1) of the 1983 regulations shows that, subject to certain limited exceptions, any copy of an unexecuted agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature.

 

Section 3(2) of the same regulations states what may be excluded from copy documents: There may be omitted from any such copy- (a) any information included in an executed agreement, security instru*ment 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 there under as to the form and content of the document of which it is a copy.

 

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law, as shown below.

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

As already pointed out, the document sent is illegible and I am unable to see if the prescribed terms as required by section 60(1) Consumer Credit Act 1974 are present. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the "1974 Act" sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. I have not written them here for you as I’m sure you are well aware of them.

 

You had until the XX XXXX 2008 to provide me with the true copy I requested. After that date you entered into, and currently remain in, default of my request.

 

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection which was issued July 2003 (updated December 2006), relating to debt collections and what the OFT considers unfair. I have enclosed an excerpt from page 5 of the guidance which states:

 

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

 

2.8 Examples of unfair practices are as follows:

k. not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

 

Whilst the account remains in dispute (for clarity, the lack of a legible and compliant credit agreement is a very clear dispute), under section 78(1) of the Consumer Credit Act 1974 you may not enforce the agreement. This includes, but is not limited to, the following:

 

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

-You may not add any further interest or charges to this account.

-You may not pass this account to any third party.

-You may not register any information in respect of this account with any of the credit reference agencies. The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent (given in the form of a signed credit agreement) will be met with a complaint to the Information Commissioners Office.

-You may not issue a default notice related to this account.

 

Please note that to register information with the credit reference agencies, or to issue a default notice, would also be in breach of Section 13.6 of The Banking Code, which stipulates that you can only register such information if the amount owed is not in dispute.

 

 

I look forward to your reply.

 

 

 

Just edit to suit:)

[Watchout]

Happy New Year to all:)

Leading upto Christmas I got absolutely bombarded with calls. Literally call after call after call. The most I counted was 22 in 30 mins. They must have had me on re-dial.:eek:

 

Nothing since???????

[underdog13]

A clear cut case of harassment, IMO - make a complaint to OFCOM

[Watchout]

MBNA have issued me with a default notice. What do I do next?

[fedup74]

Can you post it up removing personal details first?

[Watchout]

"http://i436.photobucket.com/albums/qq89/letmeseethem/DefaultNotice.jpg"

[Watchout]

Can anyone advise please.

[angel_1]

hiya

 

have you kept the envelope and when did you actually receive it on the 12th? from what ive been told you need to have been given 14 clear days after receipt to remedy the default by the date they gave of was it 26 jan 09?

 

im sure others more experienced will come along

 

im waiting on mine soon, i guess since not paid and been disputing since oct 08 re cca copies not legible etc etc

 

will check on you later

 

take care for now angel x

[banker_rhymes_with]

Do keep the Envelope, especially if it was 2nd Class!

 

But, even assuming they sent it via 1st Class, and Posted it on Friday 9th January 2009, then it works out like this:

 

09/01/2009 = Friday, Posted 1st Class...2 Working Days for Date of Service.

13/01/2009 = Tuesday = Date of Service, you need 14 Clear Days from then.

26/01/2009 = MBNA Default Notice Deadline.

27/01/2009 = 14 Clear Day Deadline from Date of Service.

 

MBNA have only allowed you 13 Clear Days from the Date of Service, assuming the above.

 

On this basis, the Default Notice appears to be invalid because it has not allowed you 14 Clears Days from the Date of Service.

 

The Envelope can make matters even worse for them. If they Posted it late and the Post Mark confirms that, or if they sent it via 2nd Class and their Pre-Paid Postal Mark carries their Licence Number, then the Date of Service is 4 Working Days from Date of Posting...then 14 Clear Days from that!

 

Now, don't tell them. Keep the Notice and Envelope (if you have that) somewhere safe.

 

Wait until they Terminate...and pray that they do Terminate!

 

What you need next is a letter saying they have Terminated, or a demand for Payment of a sum that was not otherwise due, such as any Balance above the Arrears they stated in the above Notice.

 

Once they ask for that, it is clear they regard the Agreement has ended, and that they think they have the Right to ask you for that sum because they can enjoy the benefits of s87.

 

The Sale to a DCA who is in no position to keep the Agreement going, can also be regarded as Termination. That's because MBNA know the DCA can't run the Agreement as a bank, so it's the same thing as saying there is no longer a live Agreement, just a lump sum alleged Debt.

 

No valid Agreement and they are stuffed anyway. But, if they have a valid Agreement and then Terminate on the back of an invalid Default Notice, then they blow the Right to enjoy s87.

 

While you are waiting for them to make their next silly move, see if you can pick holes in the Agreement. No Agreement and the Default Notice issue doesn't even matter!

 

Cheers,

BRW

[Mack Heath]

Deleted! Sorry!

Edited January 14, 2009 by Mack Heath
Responded to a post before realising I was about 2 months too late!

[Mack Heath]

Do keep the Envelope, especially if it was 2nd Class!

 

But, even assuming they sent it via 1st Class, and Posted it on Friday 9th January 2009, then it works out like this:

 

09/01/2009 = Friday, Posted 1st Class...2 Working Days for Date of Service.

13/01/2009 = Tuesday = Date of Service, you need 14 Clear Days from then.

26/01/2009 = MBNA Default Notice Deadline.

27/01/2009 = 14 Clear Day Deadline from Date of Service.

 

MBNA have only allowed you 13 Clear Days from the Date of Service, assuming the above.

 

On this basis, the Default Notice appears to be invalid because it has not allowed you 14 Clears Days from the Date of Service.

 

The Envelope can make matters even worse for them. If they Posted it late and the Post Mark confirms that, or if they sent it via 2nd Class and their Pre-Paid Postal Mark carries their Licence Number, then the Date of Service is 4 Working Days from Date of Posting...then 14 Clear Days from that!

 

Now, don't tell them. Keep the Notice and Envelope (if you have that) somewhere safe.

 

Wait until they Terminate...and pray that they do Terminate!

 

What you need next is a letter saying they have Terminated, or a demand for Payment of a sum that was not otherwise due, such as any Balance above the Arrears they stated in the above Notice.

 

Once they ask for that, it is clear they regard the Agreement has ended, and that they think they have the Right to ask you for that sum because they can enjoy the benefits of s87.

 

The Sale to a DCA who is in no position to keep the Agreement going, can also be regarded as Termination. That's because MBNA know the DCA can't run the Agreement as a bank, so it's the same thing as saying there is no longer a live Agreement, just a lump sum alleged Debt.

 

No valid Agreement and they are stuffed anyway. But, if they have a valid Agreement and then Terminate on the back of an invalid Default Notice, then they blow the Right to enjoy s87.

 

While you are waiting for them to make their next silly move, see if you can pick holes in the Agreement. No Agreement and the Default Notice issue doesn't even matter!

 

Cheers,

BRW

 

 

I'm in a similar boat - I think.

 

I've been paying MBNA and a few others under an agreement set up by PayPlan. Most of my creditors accept the amount of payments but MBNA constantly pestered me for more. Frankly I got sick of them and stopped opening any post from them. Then at Xmas I vowed to get this sorted in the New Year and opened all the old mail. I found that:

 

on 22 September I was 'served a notice' from Link Financial who are trying to recover the debt. Then, on 23 September I was served a default notice by Link under section 87(1) CCA 1974. The 14 day period was stipulated as 7 October otherwise the agreement would be terminated on or after that date.

[fedup74]

20 posts later too Mack Heath:rolleyes::D

[fedup74]

Me again Mack Heath:) let's hope they do terminate the agreement as your default notice could be dodgy if they have only given you 14 days to remedy. Have you got a thread on this?

[Watchout]

I do keep envelopes when there is a date stamp on them. However I do receive numerous envelopes from companies with no date stamp on them from Royal Mail or any other form of handling markation. This was one of those instances where there was nothing on the envelope from MBNA.

 

Even so I am feelling really positive about this action against MBNA. Need to take advice from CAGGERS as to how many things are wrong with credit agreement and term and conditions.

 

MBNA can stick the default notice up their a%r*e :-o:-o Their faces as we stick it up em!!!!!!!

[angel_1]

hiya just to clarify, did you actually ge the default on the 12th or the 13th jan 09??

 

only cos the post you did on 12th jan stated received default notice then you scanned on the 13th jan 09

 

have you actually had the 14 clear days from the dates of your posts?

 

sorry if ive got it wrong but im unsure now if you have had 14 clear days, or if you have - hence why the envelope is sometimes crucial

 

laters angel x

[Watchout]

Received 12th January 2009

[underdog13]

Hi Watchout,

 

a lot of those pre paid envelopes contain bar codes - it's just possible that these barcodes contain info regarding the date of post.

 

I know it's a pain keeping all the extra paper work, (you should see my study; looks like a cross between a stationers and a recycling plant), but it may be worth the hassle/inconvenience one day.

 

Best of luck in your battle:)

[Watchout]

Letter today from 1st credit Ltd. MBNA have assigned full balance to them and the full amount outstanding is due to 1st Credit (Finance) Ltd immediately............YEAH RIGHT:lol:

They will even comply with any data requests for copies of personal info they might hold.

 

PLEASE DO NOT IGNORE THIS LETTER..............

 

Do I SARN and CCA them?

[underdog13]

I'd send them a CCA - should be interesting to see what they send, especially if it differs from what MBNA sent previously!