MBNA - (Abbey & Virgin cards) CCA ??

[guzzleguts]

Thanks BRW

 

But i still can not find anything concrete about fees being added to a default notice.

 

If anyone could tell me can a late letter fee be added to a default notice, IE. the amount to remedy.

 

Would really appreciate some direction on this

 

Thanks GG

[42man]

Did you see this thread - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

There was also a case recently where the judge threw out the claim as there was no proof of posting of the original default notice....I'll see if I can find it....

[guzzleguts]

Thanks 42man i did read that a few weeks ago, thought it was directed at PPI but il read it again.

 

Anything else you can RE fees on DN's would be great

 

Thanks GG

[banker_rhymes_with]

Hello 42man!

 

There was also a case recently where the judge threw out the claim as there was no proof of posting of the original default notice....I'll see if I can find it....

 

I'd like to read that one too! Hope you can find it! I'll have a look too, any idea which bank it may've been?

 

Cheers,

BRW

[angel_1]

hiya GG

 

ive passed by your thread today and wanted to sub to it if i may, learned a lot from the posters replies here so thanks to all

 

and wishing you luck in this journey

 

ive just been told by mbna they have sold my virigin acc to 1st Credit dca

 

anyway keep positive

 

laters angel x

[guzzleguts]

HI ANGEL

 

Thank for the support

 

Did you get a default notice.

 

GG

[angel_1]

hello GG

 

yes i did but of course its got that line in mine about section 8 or something,

 

will try and update you later with exact wording,,,

 

angel x

[guzzleguts]

Yes thats the one mine is paragraph 8.

 

but they have got no paragraph 8 in the t&c.s and the didnt allow 14 days on mine, so thats in a safe place.

 

I have noticed a lot of people have this paragraph 8 on their DN's i would think that would make them invalid?

 

GG

[angel_1]

hiya again GG

 

yes what you said is correct, thank you

 

well you are subbed onto underdog's and then the new thread by pompeyfaith arnt you under mbna?

 

with underdog speaking with a solicitor on this

 

but today ive found another important thread along similar lines so will inform underdog which may be useful to us all

 

take care and lets hope this does make the dn not effective

 

angel x

[guzzleguts]

Thanks angel

 

Yes i am subbed to both threads, any updates let me know

 

GG

[angel_1]

hiya GG

 

for sure dont worry, i think ive made it my Personal Mission Statement to let anyone know about underdog and pompeyfaiths connected mbna threads when i come across anyone with mbna difficulties:cool:

 

laters angel x

[guzzleguts]

Hi i need some clarification on a Dn, if you have been defaulted and the default is registered at the CRA, am i right in thinking that MBNA or any other bank for that matter, would have to serve a DN on you before registering the default.

 

Any comments would be great, thanks.

 

GG

[Muffintop]

But Guz, isnt that the problem? MBNA will say they did serve the Default Notice... I didntthinkt hey had to send it to you via recorded del.. you had your sar through didnt you and it wasnt on there?? the default they have placed on your credit file does it tally up with the sar they sent, as that was a request for all information (did you specifically say on your sar that you wanted any default notices they may have sent?)

[guzzleguts]

Hi M

 

They have sent me a letter stating they have defaulted me and registered it with the CRA but dont have to send me a DN, unless they are starting litigation.

 

I think they have messed up big time here:).

 

GG

[Muffintop]

thats not right is it guz

 

I hope you wont be mad at me for posting this, I dont know how to do just a link. just get a mod to delete it if its too long.

 

 

How To Possibly Remove A Default Notice From Your Credit File

 

Back to Credit Cards Main Page

 

 

Summary:

 

 

This guide looks at a strategy that may be able to remove a Default Notice from a Credit File. It takes a little perseverance, and can take up to 6 months to get a result. However, if you have a default against your name it might be your only option.

 

Assume you owe £10,000 to the bank or on a Hire Purchase Agreement. If you miss a series of payments alongside ignoring correspondence from the lender chances are they’ll issue a Default against your name. This will remain on your file for 6 years and often means that gaining credit, including a mortgage will be a real struggle.

 

This 'Default' will show up on your credit file and it is bad news because it ranks right up there with a County Court Judgment (CCJ). People often assume that a CCJ is the worst entry on a credit file (apart obviously from bankruptcy) but in reality most lenders view CCJs and Defaults as one of the same.

 

 

Why A ‘Satisfied’ Default Is Not Good News

 

• Assume you have a Default marked on your credit file and continue to have a problem settling the debt because of lack of money
  
• Most companies in this situation will accept a lesser offer, perhaps 60p in the pound (£600 is used to settle a debt of £1,000)
  
• If you pay this money in full and final settlement the Default will now be marked ‘satisfied’
  
• One would now think that the matter is over, the default will be removed and your credit file clean
  
• Sadly this is not the case as most people don’t realise that a satisfied default is viewed as badly as a plain default. In fact, the word default will still appear on your credit file
  

One strategy to use before settling the debt is to say that you can only do so (don’t mention it’s your money, say it’s a loan from your parents of a friend) if the original default is removed from your credit file. But there is no guarantee that this will work

 

Just How Bad Is A 'Default' Notice

 

Very bad and here's an example. You'll struggle to find a normal bank account that will issue you with a chequebook! Although, if you already have one with your current bank they won't take it away.

 

And as for mortgages (with decent interest rates), credit cards and cheap loans forget them all if you have a default.

 

How To Get A Default Removed – Previous Paperwork Is The Key

 

In some circumstances there is a strategy that people can use to force a lender to remove a default notice. This strategy has legs because many banks and other financial institutions in the past issued Default notices like confetti, without following the strict paperwork guidelines that are in place.

 

And it's wrong paperwork which is the lever you'll be using to get a Default wiped.

 

However, there is one problem with the strategy in the paperwork and procedure by the banks has all been tightened in the last couple of years. So if your default was placed on your account before the beginning of 2006 then you've got a far better chance of getting it wiped than if the default was issued in say late 2007. Whatever the case, we'd still advise you to follow this plan under the 'nothing ventured nothing gained' philosophy

 

Timescale For The Wiping Default Strategy

 

 

 

The total time should take you no more than a few hours but it will likely take 6+ months before you get a result one way or the other. Not only do the banks seem snowed under with paperwork but they won't like dealing with you (too bad!). We therefore suspect that many letters get 'lost' in the system. But don't worry because -

1. You'll be sending recorded letters, and
   
2. The banks have to reply to your requests by law. If they don't consumers have the power to threaten them which will get action - Don't therefore give up
   

Some Background

• What we're going to do is show you a set of letters (both sent and received) that were passed to us by a gentlemen who had a default on his credit file. We will refer to him as Mr One
  
• The default was for around £25,000
  
• The amount doesn't matter either so this can be tried with a default of just £200 right up to £100,000+[
  
• All account numbers and dates have been marked out
  

Critical Point - What the strategy relies on

 

The strategy relies on the fact that a Default warning letter was never sent out.

 

The law states that before a default can be issued the lender has to send a default warning letter.

 

This is an official looking letter that offers the customer a final 28 days to settle. The letter also includes details of what a default is, and the effects of one being lodged against your name, ie might struggle to get new credit

 

If you want to continue then you'll be arguing the default issued against you was done so illegally because the correct paperwork procedure wasn't followed.

 

In effect you are going to be arguing on a technicality.

 

1st Step - Get Hold A Copy Of Your Credit File

 

1. Either go to the www.Experian.co.uk website and order a copy for £2, call them up, or write to them
   
2. It is advisable that you don't sign up for one of their expensive services costing £30 or more, you don't need it
   
3. Experian are sneaky in that they try to hide the facility to order your credit file for £2 but search around on their website and you'll find it, use the phone if you get lost
   
4. Within about a week you'll receive your credit file
   
5. Study it and find the correct entry re the 'default', if you need help call Experian's helpline
   

Letter Writing

 

 

Here is a list of all the letters that Mr One wrote, the replies he received from his bank, as well as our comments.

 

 

Comments

 

 

 

Get organised!

• You're going to be writing at least 3 letters and maybe a lot more so get a new file that you can place all documentation in
  
• Good paperwork is important
  
• because if you have to take matters beyond the bank to a higher authority you may need to pass your case file on to them
  

 

Mr One's Address

23 High Street

London

ABC1 8YZ

 

 

 

The ABC Bank

1 Bank Square

Bank Town

BK1 7TD

Date: xxxxx

 

 

Dear Sir or Madam

 

 

Account number - xxxxxxxxxx

 

Sort Code - xxxxxx

 

After recently obtaining a copy of my credit file from Experian I was concerned to note that your company has placed a "Default" notice against a joint account in my and my wife's name.

 

Further to this neither I nor my wife have a recollection of ever receiving such a notice, and I therefore require you to substantiate this data at your earliest convenience.

 

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit). Your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee, PO Serial Number 1587 716732.

 

2. You must supply me with a signed true and certified copy of the original default notice

 

3. Any deed of assignment if the debt was sold on

 

I would request that this data is provided to myself within the next 28 days, if you are unable to provide this data then I must insist that it is removed from my files as unsubstantiated.

 

Yours faithfully

 

 

Mr & Mrs One

 

Comments

 

• It is important that this letter is sent recorded delivery
  
• Also note that £1 was sent in the form of a Postal Order (a photocopy of this postal order should be attached to a copy of your original letter and placed in your file)
  
• Note, that all letters are written by Mr & Mrs One because the account was in their dual names. This also meant that a default notice was placed against both their credit files
  
• 
  

The ABC Bank's reply to Letter 1

 

Dear Mr One

 

We write with reference to your letter dated xxxxx.

 

We write to confirm that after checking with Experian it shows that when the account was satisfied via a full and final payment the default notice was also marked as satisfied with Experian.

 

If you have any queries, please do not hesitate to contact us on the number above.

 

Please find enclosed your postal order for £1.

 

Yours sincerely

 

Customer Services Manager

 

 

Comments

A classic fob-off letter telling Mr One nothing, apart from what he already knew

 

Interesting to note that they try to get Mr One to call them if he needs anymore help

 

NEVER speak to anyone on the telephone even if they call you

 

Politely say that you want ALL correspondence in writing

 

OK, it's time to hit them with letter 2 (you can wait a week if you want but why not write back the same day)

 

LETTER 2[/font

Dear Sir or Madam

 

Your Ref : On the last letter from ABC bank there will be a reference number, place it in here

 

Account number - xxxxxxxx

 

Sort Code – xxxxxx

 

Thank you very much for your letter dated xxxxxx.

 

You however tell both my wife and I information that we already know. We have both seen our Credit References and the notice of 'Default' and then 'Satisfied' next to the item relating to the ABC bank.

 

It is the 'Default' notice that we are very concerned about because neither I nor my wife have any recollection of ever receiving such a notice.

 

The three questions in the original letter dated xxxxx (letter 1) specifically relate to this point and request you to substantiate this information. Could you therefore answer in full the questions contained in the xxxxxx (letter 1 date) letter of which we enclose a copy, we also enclose a £1 postal order.

 

It is your duty to comply with my requests under the law.

 

Yours faithfully

 

Mr & Mrs One

 

Comments

As we mentioned above Mr One's default has been 'satisfied' but this does not matter for this strategy

 

Even if the default had not been marked 'satisfied' the letters written would have been the same[/font]

 

Make sure you send this letter recorded delivery as well

 

The ABC Bank's reply to Letter 2

 

Dear Mr & Mrs One

 

We write with reference to your letter dated xxxxx (letter 2).

 

We can confirm that we have requested a copy of the Default Notice and also the account opening form and once this is received we will send these along with statements as requested.

 

Yours sincerely

 

Customer Service Manager

 

Comments

OK, now they understand that Mr One cannot be fobbed off and perhaps knows what he's doing so they might be forced to do some work;

 

But will they do anything or continue to brush the matter under the carpet hoping that Mr One forgets, or is disorganised?

 

 

Comments

Nothing was heard back from the bank for over 28 days which is the normal time limit for this kind of correspondence

 

Mr One therefore puts in a threat in his next letter, in a professional manner of course

 

Dear Sir or Madam

Your Ref : xxxxxxxxxxxxxxxxxxxxxxxxxx

 

Account number - xxxxxxxx

 

Sort Code – xxxxxx

 

I wrote to you on the xxxxx (letter 1) and the xxxxx (letter 2) asking for some relevant information. I enclose copies of the two letters which were both sent via recorded delivery.

 

You wrote back to me on the xxxxxxxx without answering any of the questions put to you in the original letter.

 

As 28 days has now passed from the date of the 2nd letter you are now in breach of your duties under Section 78 of the Consumer Credit Act. If you do not answer my original questions and reply within 7 days I will have no choice but to escalate the matter to the relevant authorities including the Banking Ombudsman, Office of Fair Trading and the Information Commissioner's Office.

 

]Yours faithfully

 

Mr & Mrs One

 

Comments

Note the 2nd sentence in the first paragraph 'which were both sent by recorded delivery'

 

Let the bank know that they can't get out of this easily, Mr One is right on their case

 

The ABC Bank's reply to Letter 3

 

Dear Mr One

 

Thank you for taking the time to write to us about your concerns. All concerns are important to us and we welcome the opportunity to address the issues raised.

 

We are not yet able to answer your concerns fully, as we need to look into matters further. We will contact you again in 10 working days either with a full response or to update you on the progress we have made. However, if you wish to discuss matters, please contact us on telephone xxxx xxxxxx.

 

Yours sincerely

 

Mr A Realname

 

Comments

Now Mr One is getting somewhere especially as this letter is signed by a real person and not a 'customer service representative'

 

The bank are now are under no illusion who they're dealing with, ie somebody who knows the right threats to use, in this case a 'breach of your duties under Section 78 of the Consumer Credit Act'

 

Note again that they're trying to get Mr One to telephone rather than put things in writing

 

Further reply to Letter 3 from the ABC Bank

 

 

Dear Mr One

 

Thank you for your patience whilst we have been addressing your concerns. Whilst we had hoped to be in a position to resolve matters by now, unfortunately, this has not yet been possible due to delays in obtaining the information that we require to complete our review.

 

Please accept our sincere apologies for the delay. We will contact you again within the next 10 working days with an update or a full response.

 

Meanwhile, please feel free to contact this office, if you wish to discuss this further on telephone xxxx xxxxxx.

 

Yours sincerely

 

Mr A Realname

 

Comments

 

It's obvious now that Mr One's letters are in the system and logged because they replied within 10 days of their previous letter

 

Again, they subtly try to get Mr One to call with his concerns - fat chance

 

However, after hearing nothing back from them for a week it's time for Mr One to suggest that because they cannot provide the paperwork asked for in letter 1 they should remove the 'default' notice all together

 

LETTER 4[/fo

Dear Mr Realname

 

Your Ref : xxxxxxxxxxxxxxxxxxxxxxxxxxx

 

Account number - xxxxxxxx

 

Sort Code – xxxxxx

 

Thank you very much for your letter dated xxxxxxx (the one above). However, as you have now exceeded the statutory time for the data provision requested could you please consider removing the data in its entirety as unsubstantiated.

 

If you do not feel that you are in a position to do this we will have no further option but to refer this case to the Information Commissioner Office, Banking Ombudsman and Trading Standards as appropriate.

 

Yours sincerely

 

Mr & Mrs One

 

Comments

No comments apart from there being 3 real threats contained in the last paragraph

 

All of those organisations mentioned will likely take Mr One's side if this matter intensifies further, and the ABC bank knows this

 

As we mentioned earlier on it's all about the correct paperwork and procedure which has to be followed

 

Reply to letter 4 from ABC Bank

 

 

Dear Mr One

 

Thank you for your patience whilst we have been addressing your concerns. Whilst we had hoped to be in a position to resolve matters by now, unfortunately, this has not yet been possible due to delays in obtaining the information that we require to complete our review.

 

Please accept our sincere apologies for the delay. We will contact you again within the next 10 working days with an update or a full response.

 

Meanwhile, please feel free to contact this office, if you wish to discuss this further on telephone xxxx xxxxxx.

 

Yours sincerely

 

Mr A Realname

 

 

 

Comments

 

This is just not on, the letter is exactly the same as one received less than 30 days ago!

 

Mr One therefore immediately fires off a response trying to bring the matter to an end

 

He feels that as the paperwork is not forthcoming the odds-on getting the default removed are moving into his favour

 

LETTER 5

Dear Mr Realname

 

Your reference xxxxxxxxxxxxx

 

]Thank you letter dated xxxxx which I note it is an exact replica of your letter dated xxxxx. In your most recent letter you have not give me an update or a full response as you stated that you would in your previous letter.

 

I refer you to the last paragraph of my letter dated xxxxx (letter x) stating that I must refer this case to the information Commissioners office, the Banking Ombudsman and the trading Standards.

 

Would you please reply to this letter within 10 days giving the details of the data provision previously requested.

 

Yours sincerely

 

Mr & Mrs One

 

Reply to letter 4 from ABC Bank

 

(this came within 3 days of the Letter 5 being sent)

 

Dear Mr & Mrs One

 

Ref xxxxxxxxxxxxx

 

I write regarding the above detailed account and in response to your letters dated xxxxx and xxxxxx. Thank you for your patience while we have been investigating the matters.

 

Unfortunately, it appears that you did not receive the letter forwarded to you on xxxxx (a copy of which has been enclosed for ease of reference).

 

I regret to advise you that I have been unable to obtain copies of the original account documentation of the default notice. Consequently, as it appears that the requested documentation has been lost, copies could not be provided within 28 days of your request. Please accept my apologies for any inconvenience this may have caused you.

 

Since we have been unable to locate a copy of the default notice issued, as an exceptional matter, the necessary action has been taken to delete the adverse data recorded with the credit reference agencies.

 

Thank you for taking the time and trouble to bring this to the bank's attention.

 

Yours sincerely

 

Mr Another Realname

 

 

 

Comments

 

Bingo! Mr One has won the battle and forced the bank to remove the default notice from his credit file

About a month later Mr One then requested a new copy of his credit file from Experian to check the default had been removed, it had

 

However, if it had not then the process was likely still in the 'system' and another polite letter to the bank reminding them would be in order

Edited January 7, 2010 by citizenB
removed font formatting commands for easier reading

[guzzleguts]

I have received a claim form from MBNA and optima legal in regards to the abbey account.

 

I will post up POC's later today, please could a mod move this thread to the legal section.

 

Thanks GG

[citizenB]

Thread moved to legal issues as requested.

[guzzleguts]

The POC's

 

The claimant's claim is in respect of a credit agreement regulated by the consumer credit act 1974 whereby the claimant provided the defendant with a credit card and in return the defendant agreed to pay at least the minimum payment given in the statement. A default notice was served on the defendant which expired on **/02/2009. The defendant has failed to comply with this. The claimant's claim of £***** is the sum owed plus accrued interest as at **/02/2009. Demand for payment has been made, however the sum due remains outstanding.

 

The POC's do not state an agreement no, i didnt receive a termination notice or an LBA.

 

The DN is invalid it states i breached paragraph 8 of the agreement, there is no para 8 in the agreement and the relevant terms para 8 do not state anything about repaying any arrears on the account.

The DN also only allowed 11 days to remedy.

 

Any help would be much appreciated.

 

Thanks GG

[guzzleguts]

Thankyou CB

[guzzleguts]

Would a DN that only allows you 11 days to remedy stop their claim at the first hurdle?

 

GG

[citizenB]

Would a DN that only allows you 11 days to remedy stop their claim at the first hurdle?

 

GG

 

along with the incorrect breach it is a pretty good start How can you remedy something when you dont know what you need to remedy ?

[guzzleguts]

Thanks CB

 

Can i put these faults with the DN in my defence now or wait for the full defence further down the line.

 

Also the agreement has a 10,000 limit and has not got a rate of interest for that. Thats if they can come up with the original to prove that the prescribed terms are on the back.

 

I have a letter from them stating that the original is not available!

 

CB, if you or anyone could let me know about my defence , do i show my hand now or later on down the line.

 

Thanks GG

[toto003]

Hi all

Can anyone tell me if PT's post about rate of interest to a credit limit is ok to put in my defence?

MBNA and Optima legal have just sent me a claim form, ive got the DN with the para 8 in it and it only gives me 13 days to remedy.

But the rate of interest issue would blow their claim out of the water.

Any help please.

Thanks GG

 

Hi GuzzleGuts -

 

I am far from an expert in this area - but it would appear to my eye that the Virgin CCA you posted does contain the prescribed term for rate of interest - read the wording carefully.

 

However, the second CCA - the Abbey Card, is unenforceable in my opinion.

 

Read section 1 and the points carefully - the interest rate is stated for the first 6 months only - and then point 1e says.

 

"in all cases we will then charge interest as shown in paragraph 1g ... "

 

The Credit Limit stated on your agreement is £10,000. The interest rates in table 1g are only relevant for limits of £1,000, £3,000 and £5,000.

 

This leaves you with at least 1 Prescribed term missing.

 

There are other sections in the agreement that also refer to section 1g - so this may affect other prescribed terms.

 

hope this helps

 

toto

 

 

[pompeyfaith]

GG this claim should not even be in the court system as the default is nonse so the court cannot rule on it according to law PF

[citizenB]

Thanks CB

 

Can i put these faults with the DN in my defence now or wait for the full defence further down the line.

 

Also the agreement has a 10,000 limit and has not got a rate of interest for that. Thats if they can come up with the original to prove that the prescribed terms are on the back.

 

I have a letter from them stating that the original is not available!

 

CB, if you or anyone could let me know about my defence , do i show my hand now or later on down the line.

 

Thanks GG

 

GG, are you putting in a full defence or a holding defence at this time ?

 

Are there any more documents you require from the claimant ?, for example the original agreement/application.