MBNA CCA Received + Default Notice - help needed.

[wUK]

I sent a CCA request to MBNA which defaulted on the 2nd December.

 

I received a default notice from them on the 5th of December requesting £1225 payment to avoid the default which I cannot afford to pay.

 

Today they have sent me the CCA which looks enforcable to me; this is worrying as I was hoping that due to this card being so old they wouldn't be able to produce it.

 

Anyway; the default notice states:

 

IF YOU HAVE DIFFICULTY PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME.

 

What more can I do about this? I did send them a letter asking about repayments a while ago that was ignored; I cannot afford to pay this amount and will be knackered if this defaults and I'm faced with having to pay over £8,000!

[flyingdoc]

First of all - post the CCA here so we can see it.(remove all personal details.)

Secondly what is the date on the default notice?

Thirdly can you find out what was the delivery date of the CCA request.

 

It sounds tight but to me (and I may be wrong, I am looking for confirmation)

 

If they have defaulted you while they were themselves in default of a cca then the default is not valid.

 

What I am not sure of is does the default now become valid now they have complied (I suspect not and that they would have to re issue)

 

The other thing I am curious about is why did they default you in the first place, was is purely in response to your request or were you behind on payments.

 

cheers

FD

[wUK]

CCA request was signed for by them on 14th November 2008.

Default notice is dated 5th December 2008

 

I have been behind on payments and stopped paying as instructed by the IVA company whilst my IVA was being drafted - the IVA was rejected last month wjhich is when I started sending out CCA requests as I cannot afford the repayments and have no idea what to do.

 

If I become bankrupt we'll lose the house and my business will collapse!

[flyingdoc]

Lets not get too far ahead of things just yet - even if this Credit card is enforceable bankruptcy is not the preferred route by the courts.

All the courts will do is make an order for you to pay what you can afford.

It is not really in the companies best interests for you to go bankrupt as they will probably get less then they would have under the IVA.

 

Please post the CCA here so we can get it checked - just because they have it - doesnt make it enforceable. They still have to have included all the prescribed terms.

[wUK]

Unfortunately my scanner is knackered so I can't post a copy of the agreement but according to the CCA it does appear to be enforceable.

 

I am happy to make arrangements to pay back my debts but have no idea which way to go with things like this at the moment; money is very tight right now which is why I am sending CCA requests and so forth.

[flyingdoc]

Your other option may be an IVA - payplan or cccs offer free impartial advice and can negotiate on your behalf and best of all DO NOT CHARGE as other IVA firms do.

 

some professional advice may be in order here.

[wUK]

I've already been down the IVA route; took months and made this whole situation far worse than it was before!

 

Offer was to repay just over £35,000 of the £50,000 I owe plus a payment from loan/remortgage if possible after the 5 years of about £7,000.

 

My IVA was rejected as one creditor (still defaulted on CCA request for months) want to pursue a charging order on my property, also two others wanted more money!

[underdog13]

Be very suspicious of whatever MBNA supply as an 'agreement' - there's a lot of discussion around the threads that MBNA are being extremely creative with their documents.

 

Their favourite trick is attaching a list of prescribed terms onto application forms that were unenforceable.

 

If you have a digital camera, even one on your mobile phone, you should be able to upload it to photobucket.

 

I wouldn't worry unduly -MBNA's early agreements don't usually comply:)

[wUK]

I've taken some hi-res pictures of the documents they returned to me and added tham as a ZIP file (site won't allow massive images but does allow a ZIP).

 

Images are 2592 x 3872 max and are readable if you zoom in on them when viewing with "Preview".

 

*ZIP file scanned for viruses etc before uploading.

MBNA_CCA_01.zip

[SteveH2508]

What file format are they or what software can we view them with? Irfanview does not like the file so I cannot view it.

[wUK]

They're just JPG's in a ZIP file; unzip them and you should just be able to open them in Windows "Preview" or any application really.

[Ragtaggeorge]

A new CAGER but it seems there are several things to look at. First is the back image as illegiable as your scan, if so that is one cause to be unenforceable. Second the black lines around the edge of the front suggest a microfiche and so they will not have a document in the required format i.e. Third are the two Copies as good as each other, suggesting both were made from the same Document and at the same time. Or, is one side clear and the other side fuzzy and blurred. i.e. this would suggest along with the black lines on the edge of the front document that they do not have the original. To enforce the agreement they must have a one or two piece document with your signature on. Then if you can read the back look to see if the prescribed terms are there, two to be going on with are APR and interest rate. Wait for one of the experts with lots of green to give you an opinion but my amateur opinion is it looks fake and even the fake may not have all the required elements. bon chance

[tiokim]

Can you post the default notice? Or just all the information it has. The date it was issued and the date to remedy the breach are vital

[wUK]

The default notice says I must pay the amount in my first post by Monday (22nd).

 

So, they were in default of the CCA request on the 2nd, default notice was received on the 5th - they then produced the CCA on the 10th.

[atwozee]

If the creditor issued a default notice then that would be seen as attempting to enforce the agreement i.e. by requesting that you comply with the terms of said agreement and that you make a payment to clear arrears of said agreement. I have had this confirmed to me by the FSA.

S78 (6) (a) precludes the creditor from enforcing the agreement if they fail to respond within the required timescale of 12 working days from receipt of service.

Of course all they will do is re-issue you with a new default – that’s if they are even bothered about following the rules – and as we all know, they aren’t.

[underdog13]

As they issued a DN while they were in default; wouldn't that invalidate the DN?

 

If they go on to terminate the agreement on the back of an invalid DN they cannot re-open the agreement without your permission - and you won't be giving that:D

 

I'm not completely sure how you stand with them issuing the agreement later on; hopefully someone more knowledgeable will be along to clarify this.

 

My own thoughts though, would be that DN is invalid.

[bladeboy]

Sorry, might have missed it. Is there a copy of the alleged CCA up here somewhere?

 

We all really need to see if it is a compliant executed agreement or not.

 

MBNA sent me a tear off slip with my signature on it, theirs was missing and it was titled 'APPLiCATION FORM'. I know that under certain circumstances they can enforce application forms but they attached the current terms and conditions and not the ones from when the agreement started.

 

Be warned, they are known to be very creative with their photocopying!

 

Get that agreement up here!

[atwozee]

As they issued a DN while they were in default; wouldn't that invalidate the DN?

 

 

It’s a good argument (and worth putting in a defence if necessary) but I don’t think it’s been tested in court yet – a judge would have to agree that the creditor isn’t allowed to issue a DN whilst the creditor is non compliant to a s78 request – it all comes down to interpretation of enforce with respect to the act and that can vary.

[creditcardmug]

The app form is in scan 6. unzip with pkware, view with adobe photoshop.

 

The app form is unenforceable, the rest is just unrelated T&Cs.

 

Can you post up the DN?

[wUK]

What's wrong with what they have supplied and how is it not enforceable?

 

I'll photograph the DN and post ASAP.

[creditcardmug]

Theres no prescribed terms on the document you signed, and no link to the rest of it.

[underdog13]

It’s a good argument (and worth putting in a defence if necessary) but I don’t think it’s been tested in court yet – a judge would have to agree that the creditor isn’t allowed to issue a DN whilst the creditor is non compliant to a s78 request – it all comes down to interpretation of enforce with respect to the act and that can vary.

 

Here's a very good point about a DN constituting enforcement made by the superb x20 on another site;

"dog,

You could show the judge the default notice itself. The DN is a prescribed form containing prescribed language to include the following words:

 

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

 

If Parliament intended that the action which will be taken where the DN is not complied shall constitute 'Further Enforcement Action', then Parliament also intended that when the DN was served there had been 'Enforcement Action'. If that were not so, then the subsequent action would not constitute 'Further Enforcement Action'. There must have been some original enforcement action for the later action to constitute 'Further' Enforcement Action. If no enforcement action can be identified and which originated earlier than the DN, the DN must constitute the original enforcement action.

 

I am aware of Rankine and the opinion of HHJ Simon Brown that beginning legal proceedings did not even amount to enforcement action. Unfortunately Brown carefully dodged saying what would constitute enforcement action. Taking his train of thought to its logical conclusion, if prosecuting legal proceedings does not constitute enforcement, then evidently only steps taken pursuant to a judgment could be treated as enforcement. But then that would be enforcement of the judgment, not of the agreement. The only remaining alternative would be enforcement by means other than the recovery of money, ie goods. But as we know, the recovery of goods is permissable only following service of a DN and where the goods are protected goods, under a judgment of the court."

 

Hope this helps.

[wUK]

I've taken a photo of the default notice and zipped it up again as before (it's a standard JPG in a ZIP file, unzip and then view).

 

Sorry for the delay with this.

mbna_default.zip

[wUK]

Anyone?

[underdog13]

Sorry Wuk, my computer can't open that file - have you got a photobucket account? If not, it's completely free to set up and use.