MBNA - (Abbey & Virgin cards) CCA ??

[Josie8]

Post up wording of default notice - MBNA's are normally defective..........................

[steven4064]

Hi guzzleguts

 

Yasked me to look at the 2 agreements in post#1. I think the others have given you the answer.

 

Docs 1&2 are almost certainly back and front of the same document and since between them they contain your signature and the prescribed terms they make an enforceable agreement under s127(3) of the CCA 1974.

 

The probably applies to docs 3&4 but this is less clear. It allhinges on whether the 2 pages are back and front of the same document.

 

As has aleady been pointed out, MBNA would have to produce the originals in court under paragraph 7.3 of CPR Practice Direrection 16 (although some judges don't seemto know that )

[guzzleguts]

Thanks josie

josie will post up def notice later today,thanks for help.

 

 

Thanks steven

is it possible these copies are on micro-fiche,and if so would tht make any difference.

thanks guz

[steven4064]

I suppose they may be on microfiche. However, they are quite legible (unusual for MF in my experience). If it comes to court you could make it difficukt for them as CPA Practice Direction 16 paragraph 7.3 says they have to produce an original in court (not may judges seem to know this ir insist on it unfortunately but you can complain if they ignore it).

[guzzleguts]

thanks again steven

does it make any difference that on the front of the document doesnt state that the t&c's are on the back.

And would appreciate your opinion on mbna's cca replies in general do they look legit or suspect

thanks guz

josie will post up def notice tommorow long day got to dig it out.

thanks again guz

[banker_rhymes_with]

Hello Guz!

 

Further to my Post on your John Lewis Thread, thanks for the PM. As I said there, it's always best to discuss this in the Forums, because advice via PM may not be accurate. Anything said via PM is not then visible to others who may spot the mistakes. PM is best if you need to send a quick confidential message that you otherwise don't want the bankers to see in public.

 

Others have already covered many of the key issues above.

 

They look to be Microfiche Scans, and many report that MBNA do not have any Originals from that time. They Scanned and then Shredded them all...how silly of them. As Steven has pointed out, CPR PD 16 7.3 does require that the Originals should be brought to Court.

 

If they have no Originals, then what ever they do bring into Court is then classed as Hearsay Evidence, and to support that, the Civil Evidence Act 1995 comes into play. They would need to be able to explain how the Original Agreement on Day One progressed all the way from Scan to Shredder and then how a Copy was produced for their Day in Court.

 

To support that, they would need an Audited Document Management System, and produce a complete Audit Trail from start to finish. Who logged it in, date/signature, who stored it, who authorised the Scanning, date/Signature, where was that Scan kept, who authorised the Destruction of a Statutory Document (i.e. the still live and properly executed Regulated Credit Card Agreement), date/Signature, who had access to the Scanned Archive (for editing perhaps), who authorised a Copy in response to your s78(1) Request, date/Signature, who authorised a further Copy in response to your SAR, date/Signature, and then later, who authorised a Copy for Court, date/Signature.

 

You may now see why a Copy is hard work for everyone, because it is not the real thing. It is not hard physical or real Evidence. The Original is Evidence, anything else is Hearsay Evidence.

 

Without the Originals, they must prove the Agreement had two sides and that the Rear Page is the same Rear Page that they now wish to link to your Signature Page. Although, as Steven has said, you will have to be prepared to argue all of this with a Judge who may not be so aware of CPR PD 16 7.3 and the Civil Evidence Act 1995.

 

These do pre-date the Consumer Credit Act 2006, so Section 127(3) still applies to these Agreements, meaning a Court cannot Enforce them if they are missing the Prescribed Terms. The first two Scans seem to show a Signature Page and a Page that contain the Prescribed Terms, but if they do not have an Original, then linking these Scans is the issue that will make or break them in Court.

 

You must allow for the fact that they may have the Originals.

 

In any event, as with your John Lewis Card, they've got the Agreement part wrong on both MBNA alleged Agreements, because the Heading for the Agreement area is not correct. Under Regulation 2(1) to the Consumer Credit (Agreements) Regulations 1983, for the document to be regarded as an Agreement it would need to have been headed (note the word Card is missing on your Application Form):

 

Credit Card Agreement Regulated by the Consumer Credit Act 1974

 

That's if it is to be in accordance with the Column 2 Information appearing at 1(d) of Schedule 1.

 

(1) Subject to paragraph (2) below, a heading in one of the following forms of words--

 

(a) "Hire Purchase Agreement regulated by the Consumer Credit Act 1974";

 

(b) "Conditional Sale Agreement regulated by the Consumer Credit Act 1974";

 

© "Fixed Sum Loan Agreement regulated by the Consumer Credit Act 1974"; or

 

(d) "Credit Card Agreement regulated by the Consumer Credit Act 1974",as the case may require.

 

(2) If none of the headings in 1(a) to (d) above are applicable a heading in the following form of words--"Credit Agreement regulated by the

Consumer Credit Act 1974".

 

(3) Where the document and a pawn-receipt are combined, the words ", and Pawn Receipt," shall be inserted in the heading after the word

"Agreement".

 

(4) Where the document embodies an agreement of which at least one part is a credit agreement not regulated by the Act, the word

"partly" shall be inserted before "regulated" unless the regulated and unregulated parts of the agreement are clearly separate.

 

(5) Where the credit is being secured on land the words "secured on" followed by the address of the land shall be inserted at the end of the

heading.]

 

In the interim, and again as repeated on your John Lewis Card, I'd get your facts and figures all ready, so that you know where you stand with these MBNA Cards in terms of the numbers. If you have all of your Statements, then I'd go through them and make sure you have all of the Big Numbers to hand, by that, I mean:

 

A Total of how much you spent.

 

B Total of any Unlawful Charges (Late Fees, Over-Limit Fees etc).

 

C Total of any Lawful Charges, if any.

 

D Total of any Payment Protection Insurance (PPI), if any.

 

E Total Interest they charged.

 

F Total of how much you repaid.

 

Add up A to E and take off F, and that should match the Balance of the Card.

 

However, if there's a B and a D, these can be re-claimed.

 

Also, just to show where you really stand in terms of how much money really changed hands, take F from A and see if it is positive or Negative. If it's Negative, then you have Paid them more than you have ever spent, if Positive, then the amount is how much you ended up getting from them that has not been repaid. That is effectively the true Balance.

 

Often, this can be very sobering. Many find they have Paid back more than they ever spent. Anyone who has had a Credit Card near the Credit Limit for several Years has nearly always Paid back more than they ever Spent. Thus, with no Agreement, there is no Debt, period. They owe you.

 

If there is no Agreement, then they never had any Right to charge Interest and other fees, which is why I have ignored them in the above A-F calculation. Likewise, any money they did give you over and above what you repaid, is effectively a Gift. That is their penalty for failing to organise the very Agreement they needed to charge Interest and Fees, and to force you to repay both them and any surplus of money you Spent over money you Repaid.

 

If you do not have all of your Statements, then I would invest in £10 and send them a S.A.R - (Subject Access Request). In any event, that should produce a 2nd Copy of both your alleged MBNA Agreements, which would be useful to see, i.e. in case they reveal some Terms or other details you had not otherwise seen before via CCA s78(1) Requests.

 

If you now see my point, examining the Big Numbers, is important, because if you are like me, I want to know the true position.

 

If you have Paid them back more than you ever Spent then, in my opinion, you can ask for that back, as this is money you Paid to them in error, as there was no Agreement requiring you to Pay back more than you Spent.

 

If it's the other way around, then it's up to you. Morals don't come into this, because Morals were absent when they set the Interest Rates that inflated the Debt. If they do have an Enforceable Agreement, then they will not stoop to consider your position and they will take you to Court for everything, i.e. Interest, Charges...the Full Balance. Whereas, if they don't have an Enforceable Agreement, then they never had any Right to any of these extras. If they have over-paid in your favour, that, in the eyes of the Law, is effectively a Gift, and a punishment on them for being daft enough to set out on this path without that vital Agreement.

 

The Agreement was all they had to get right. If they have failed to get that right, then they only have themselves to blame.

 

Summary

 

What you do next is up to you, read and re-read the above, and then take it from there. Ask questions here, because you must understand that they will kick up no matter how right you are.

 

With the MBNA, you must be prepared for Harassment via Telephone, and be prepared for adverse Data on the CRAs. Warn them not to do this, but allow for the fact that they may well try to harm your Financial Reputation. Whilst you can address that, it's not easy.

 

As always, this is just my opinion. If you are unsure about anything, then ask, and do consider seeking Legal Advice before doing anything.

 

Cheers,

BRW

Edited November 22, 2008 by banker_rhymes_with
Typo

[guzzleguts]

Thanks brw for both replies

[Josie8]

Any joy with posting up the Default Notice?

[guzzleguts]

Hi josie

No, ive been looking all day for it.It appears that mbna/virgin only sent threats of default notice never the real thing.They defaulted me on 07/01/2007.Mbna abbey havent defaulted yet but are about to if there letters are anything to go by.I think i will send a SAR request first thing monday, i think they have to send a copy with that il keep you posted.

thanks josie

guz

[banker_rhymes_with]

Hello Guz!

 

No harm in asking that they do include Default Notices and proof of Postage when you send your S.A.R - (Subject Access Request).

 

Indeed, outline everything you want from them. Something along these lines perhaps:

 

Data Subject Access Request

 

Data Protection Act 1998

 

Please supply me with a complete list of transactions and charges relating to my complete history with your organisation from the very outset (do not limit this to 6 Years, I require the complete History). Alternatively, a complete set of Statements for that period will be acceptable, for any and all Accounts that I may have held.

 

I require an exhaustive search, and will need to see all records you hold on me, including but not limited to:

 

• A transcript of all transactions, including Charges, Fees, Interest, Repayments and Payments and both the original amount of the Credit Amount and any repayments made to any Accounts.
  

• Transcriptions or Recordings of all Face to Face Agreement Sales or Payment Protection Insurance Sales Conversations, and any Telephone Conversations Recorded, plus any Notes or Transcripts made in relation to these Conversations.

  
  

• Where there has been any event in the alleged Account history over this period which has required manual intervention by any person, such as to impose Penalty Fines, or Increase Credit Limits, or make adjustments to the Interest Rate, then I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

  
  

• Copies of any Cancellation Rights sent to me, with a copy of any proof of postage that you hold.

  
  

• True copies of any Default Notice or Enforcement Notice that you sent me, with a copy of any proof of postage that you hold.

  
  

• Documents relating to any Insurance added to any account, including the insurance Contract and Terms and Conditions, date it was added and the date it was deleted. Plus all pre-Sales Training Notes for your Employees Underwriting and Advising on such Contracts of Insurance, and any Sales Notes made during the Negotiation and Sale of such Insurance.

  
  

• Details of any Penalty or other Collection Charges added to any Accounts; specifically, the date it was levied, the amount of the Charge, a detailed financial breakdown of how the Charge was calculated, and what the Charge covers.

  
  

• Specific details of the fees or Charges levied by any other Agency in respect of any Account and a detailed breakdown of said fees or Charges, what each Charge relates to and on what date said fees or Charges were levied.

  
  

• A copy of any notice of fair use of my data as required by the Data Protection Act 1998.

  
  

• A list of Third Party Agencies to whom you have disclosed my personal Data and a detailed summary of the nature of the information you have disclosed.

  
  

• Policy notes in relation to Payment Demands whilst any Account was in Dispute, and at any other time when additional Payment Demands were authorised.

  
  

• Document Management Records and Policy Notes in relation to any Documents handled, Copied or Destroyed during the lifetime of the alleged Account.

  
  

• Full copies of all contracts which you believe exist between myself and your organisation, including copies of any documents you hold in support of same.

  
  

• Details of the identity of any individuals or organisations who have provided you with my personal information together with copies of any letters of instruction provided by them, or any contracts entered into between yourselves and the third party, and the relevant dates to which those contracts related.

  
  

• Copies of all documents which include any of my personal information including copies of any contracts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.

  
  

• Full details and copies of any documents upon which you replied when you have provided my personal or financial information to any individual, organisation or third party.

  
  

• Full copies or transcripts of any computer logs or database records kept in relation to myself or in relation to my financial or personal information.

  
  

• Full copies of any correspondence in postal, email or any format which you have entered into with any individual, organisation or third party which contains my personal or financial information, or which pertains to myself.

  
  

• Details of all systems you currently have in place to ensure my personal or financial information is kept securely, including details of those officers who currently have control of same, and at the time it was held or provided to a third party.

  
  

• Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data.

  
  

• Full hard copy printouts of any of my personal or financial information held in a digital, magnetic or any other format which is held in any archives, backups or other storage devices/locations.

  
  

• Your registration number with the Information Commissioners Office.

  
  

• Your Consumer Credit Licence number.

  
  

Where reference to emails is given above, these emails should be taken from your email servers or backups / archives held in a magnetic or digital format. These emails may not be present on a user’s local system, and may require the assistance of your IT department / IT providers, who you should contact immediately for their provision.

 

 

 

Please confirm whether you hold a Physical File with details of my personal and/or financial information. If so, please provide details and dates of any instance when this file has left your control, to whom it has been communicated, the method of transportation or communication e.g. Royal Mail, Tracked Courier, by hand or if Copies were sent electronically. Please provide a full copy of this file. Where my Physical File has left your offices, please provide details of any precautions taken to ensure that my information has not been lost, stolen, misplaced or made available to anybody who does not have authorised access. Please also confirm whether any of the documents held within the Physical File are computer generated.

 

Under S.40 of The Administration of Justice Act 1970, if you believe you have provided my information to any organisation, agent, or individual who could, or may have used it for unlawful purposes, you should contact me immediately, and provide full details of their identification and address, together with full details of any instructions you have provided to them. If you have forwarded or communicated my personal or financial information to any person, company, or organisation, please provide a copy of the authority, signed and dated by myself upon which you have relied prior to doing so. As requested above, you should provide copies on any such communications.

 

Under the Data Protection Act 1984/1998, as a Data Controller, you are responsible for the complete retraction of all information provided to any third party, should I request you to do so, and have a duty to myself to ensure that any personal or financial information I have provided to you is kept securely, and is only communicated to those to whom I have given my express permission or authority.

 

If you are unable to deal with this request, you should immediately forward it to the person within your organisation responsible for Data Protection.

 

Furthermore, if I discover that I have been a victim of misrepresentation in respect to being sold PPI, then I shall be making a claim under the Misrepresentation Act. Also, if it is found that any nil refund policy upon early settlement is unfair and does not represent your actual costs in administering the PPI policy, a claim will be made under the Unfair Terms in Consumer Contracts Regulations 1999.

 

I enclose the statutory maximum fee of £10. You have 40 Calendar Days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them, and also reclaiming the enclosed £10 Data Protection Act subject access request fee.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

...and finally, where's my CCA then?

 

Hope this helps.

 

Cheers,

BRW

[guzzleguts]

Thanks BRW

thats great, that will be going out monday morning,i appreciate you taking the time.

guz

[guzzleguts]

Hi

Im sending mbna a 'SAR' request this morning,i have two accounts with them one virgin, one abbey is one request sufficent or do i have to send two requests.

thanks guz

[guzzleguts]

could anyone advise please

thanks

guz

[Chalkitup]

Hello gg,

 

Can not message you.

 

I have looked and I agree with the above Caggers re your agreements.

 

Onwards and Upwards

 

Chalkitup

[banker_rhymes_with]

Hello Guz!

 

I'm sending MBNA a 'S.A.R - (Subject Access Request)' request this morning,i have two accounts with them one virgin, one abbey is one request sufficient or do i have to send two requests.

 

You only need to send one S.A.R - (Subject Access Request), as you are requesting all of the information they hold on you. You are the Data Subject, not the alleged Accounts.

 

But they can be a bit tiresome so, to help them get their act together, you could list the alleged Account Numbers to make it easier for them!

 

However, to stress, the £10 Statutory Fee covers the lot...so make sure you ask for the lot, Kitchen Sink...everything!

 

Cheers,

BRW

Edited November 24, 2008 by banker_rhymes_with
Fat fingers!

[guzzleguts]

Thanks BRW, i read on a thread (cant remember which one, resd so many) that you can request to veiw the original cca at one of there branches, is that something you have herd of?

 

Thankyou chalkitup

[banker_rhymes_with]

Hello Guz!

 

Thanks BRW, i read on a thread (cant remember which one, resd so many) that you can request to veiw the original cca at one of there branches, is that something you have herd of?

 

No harm asking them!

 

But, I think you may be thinking of CPR 31.14, which is a useful part of the Civil Procedure Rules (CPR) that, if used at the right time, can force the issue and allow a Physical Inspection.

 

In case you have not heard of this, read this Thread:

 

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

 

Cheers,

BRW

[guzzleguts]

Thanks BRW thats great.

guz

[guzzleguts]

BRW i see you posted on enpowered's thread.

Enpowered is treating his virgin cca as un-enforcable, its exactly the same as mine,just wondered if you would look at the two cca's when you get time to see if there is any difference,would appreciate your opinion.

Will be in major litigation with them soon and knowing if its an 80% chance of being un-enforcable would be great advantage.

Thanks BRW

GG

[guzzleguts]

Sorry ment empowered's thread

[banker_rhymes_with]

Hello Guz!

 

Looks the same as yours, so same comments apply.

 

Empowered is mainly nailing them on the invalid Default Notice issue.

 

One thing I did notice, is if you look at the Fold Here mark on the 2nd Page, if you folded it like they say, then the Terms and Conditions would all be showing on the outside!

 

That makes no sense, as it'd be an open invitation for Identity Theft.

 

Why not add a big flashing light that says: CREDIT CARD APPLICATION, steal this Letter if you want this bloke's complete Financial Information, as it's all inside.

 

It may be just a comment, but who in their right mind would fold something and send it back showing Card Terms & Conditions showing!

 

You may be able to argue that this 2nd Page is therefore a silly copy they have knocked up, not thinking it through properly in terms of how the alleged Application Form would assemble for return postage!

 

Cheers,

BRW

[guzzleguts]

Thanks again BRW there has to be a little bit pasting going on with this document, i cant believe i would send back something like that.

appreciate you looking,il probley be pestering you again at some stage.

GG

[guzzleguts]

Hi could anyone tell me a default notice served in 2006 would that still have the 14 days to comply as one sreved in 2008.

And if the lender states the agreement has ended on said date is that the same as terminated, im prob being thick but just need to check.

Hopefully BRW OR CCM or JOSIE are still subscribed.

thanks gg

[Chalkitup]

Hello,

 

Depends what date in 2006 ..... as of 1st October 2006 the period of notice to remedy the breach was increased from 7 days to 14 days from the date of service of the default notice.

 

Onwards and Upwards

 

Chalkitup

[banker_rhymes_with]

Hello Chalkitup!

 

I think the applicable Date was 19/12/2006. Not being critical, just helping to pin-point when I think the Default Notice timescale went from 7 Clear Days to 14 Clear Days. I think you may've been looking at the date of an Act rather than when the above came into force.

 

Please forgive me if I am not accurate, below is why I think the date is 19/12/2006.

 

See: Consumer Credit Act (1974) and related Regulations

 

The PDF you want is Post #4 of the above Sticky Thread, and it's PDF number 6...

 

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

 

3

 

A specification of:--

 

(a) the provision of the agreement alleged to have been breached; and

 

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

 

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than fourteen days] after the date of service of the notice, before which that action is to be taken; or

 

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

Then look further down to the notes towards the bottom...

 

NOTES

 

Amendment

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

I hope this helps.

 

Cheers,

BRW

Edited December 13, 2008 by banker_rhymes_with
Formatting was a bit squiffy