Taz11 v MBNA Enforceable ??

[Taz11]

Hi Summer,

 

Sounds pretty much the same as I received. Still no reply from them as yet, so I would say they are ready to hit me with something...lol

 

I'll keep this updated as much as I can.

 

Good Luck

 

Taz11

[Taz11]

After sending MBNA a cpr request for a true properly executed copy/original of my agreement, and stating that I query the fact that the t&c's supplied cannot be proven to be related to the "application form" sent to me, they haven't sent me anything in reply.....................but I get this through my letterbox this morning.

 

First of all, who are they?, do they have any clout?, and are these idle threats to be taken seriously??. Should I reply to Optima ?? having received nothing from MBNA regarding my queries in the cpr request letter?

 

 

Thanks Taz11

[holley]

Not sure if this helps but I thought once the account was in dispute they couldnt send out letters demanding money or pass it onto another company. They have not complied with your request for a CCA. Capital One have been hassling me for money even after I told them the account was in dispute, I am now complaining to the Trading Standards. I had a good read through the Consumer Credit act its around page 52 the info that you need.

[citizenB]

Hi Taz,

 

I did a quick search and Optima does pop quite regularly on the forums. Here is one link

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/173005-optima-legal-charging-order.html

 

I am just going to reread your thread from the beginning to see where you are at.

[Taz11]

Thanks CB, I've read the link you posted and it seems identical to the letter I received, but the OP hasn't been back on the thread, so don't know what he answered to Optima.

 

 

I was thinking of sending this, but firstly I'm not aware if this can only be sent once court proceedings have been initiated, and secondly, I'm not sure of the two protocols I have highlighted??. Is it ok to leave them both in??

 

Thanks Taz11

 

WARNING.

THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES.

PLEASE DO NOT IGNORE.

 

Dear Sir/Madam,

Account Number:

 

Thank you or your letter dated 06/02/2009 and received by me on 12/02/2009 in which you have indicated that there may be imminent court action should I not respond to your letter.

 

In your letter you have given notice that MBNA Europe are preparing to initiate legal proceedings over the non-payment of the outstanding balance on the above account.

 

Given that this matter is now subject to a potential legal proceeding, you are obliged to provide, under the Civil Procedures Rules, information to ensure that all parties are on an equal footing, and also to ensure the claim is dealt with expediently and fairly, avoiding an unnecessary burden to the court's resources.

 

Under the Pre-action Practice Directions - Protocols 4.6 of the Civil Procedures Rules, I request that you supply copies of the following documents:

 

1). I respectfully request that you provide me by return a true copy of the credit agreement, properly executed and containing the prescribed terms. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

 

2) All records you hold on me relevant to this case, including but not limited to

 

1. A transcript of all transactions, including charges, fees, interest, payments and both the amounts of credit and any repayments made to the account.
   
2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations
   
3. Where there has been any event in the account history over this period that has required manual intervention by any person, disclosure of any indication or notes that have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to the account held by me with ******.
   
4. True copies of any notice of assignment and/or default notice or enforcement notice that you sent to me, with a copy of any proof of postage that you hold.
   
5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
   
6. Details of any collection charge added to the account; 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.
   
7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
   
8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998.
   
9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.
   
10. Copies of statements for the entire duration of the credit agreement.
    

Obviously if the agreement is improperly executed I would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my correctly executed agreement containing all the prescribed terms and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which I have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

This information is required within the next twenty one days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to deny me the opportunity to review my position in relation to your claim of alleged breach of agreement and any possible counter-claim.

 

 

 

 

 

Please note that, as you have initiated this action, failure to respond to this letter will place this account in clear dispute and as such you may not:

 

• demand any payment on the account, nor am I obliged to offer any payment to you.
  
• add any further interest or charges to the account.
  
• pass/sell the account or outstanding balance to any third party.
  
• register any information in respect of the account with any of the credit reference agencies.
  
• issue a default notice related to the account.
  

Should you ignore any of the above I reserve the right for legal action for redress, and will show the court this letter. I will also report your actions to any authority that I see fit.

 

I look forward to hearing from you in due course.

 

 

Yours Sincerely,

 

 

 

 

 

 

Would this be ok to send them or is it a bit premature ????

[citizenB]

Taz, have you received a default or termination notice or have they indicated in anyway that they were going to issue either of those ?.

 

Did you keep the envelope this came in. I see they havent given you a time scale within which to reply.

 

I would imagine this IS a response to your CPR letter, so I think you have them on the back foot.

 

IMHO, you need to send Optima Legal a response. Perhaps along the lines of an amended version of the letter in the following post, linked.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1800199.html

 

Alternatively you could write something along the lines of :

 

Dear Sirs,

 

I was rather surprised to receive your letter dated 6th February advising that your client would be proceeding with litigation.

 

I am currently waiting a response from your client/MBNA, to my CPR letter dated (whenever). A copy of that letter is enclosed for your reference.

 

Until I have received a reply, I am unable to assess whether or not I am indeed liable to your client for any alleged balance.

 

I would point out that your letter does in fact abuse OFT guidelines in several respects and I will be passing this on to Trading Standards and the OFT for their guidance.

 

Yours faithfully,

 

 

 

PRINT OR USE A HANDWRITING FONT - DO NOT SIGN

[Taz11]

Hi CB, the closest I have had is this, (see attached), but they have still sent me a statement for February. No notice of assignment/termination etc...

 

 

I will send one of the letters (just got to choose...lol) I would think if MBNA have an answer to my previous CPR they wouldn't have forwarded it to Optima ???

[citizenB]

Hi Taz, not that isnt a Default Notice. There is a prescribed format for a DN just as there is for an agreement and that doesnt have it. So if they want to say it is a DN.. it is definitely invalid

 

No I shouldnt think that MBNA have given Optima any other information other than "go get em".

 

So perhaps the short letter and include a copy of the CPR letter you sent to MBNA.

 

Howeer, if you decide to go with the longer letter, I wouldnt amend the protocols that X20 had in the letter I linked you to on Lexis thread. The letter you have posted above actually looks like a CPR18/SAR request and I can tell you straight away.. if they accept it as an SAR they will write back asking you for £10.00 and if they take it as CPR18 (which is only used when you have received the court papers) then they will simply ignore it.

[Taz11]

Thanks CB, so how would you amend the protocols in the letter in the link you posted. Failing that, a short, sweet and to the point letter which you kindly posted underneath with the copy letter sent to MBNA.

 

Thanks again

Taz11

[citizenB]

Thanks CB, so how would you amend the protocols in the letter in the link you posted. Failing that, a short, sweet and to the point letter which you kindly posted underneath with the copy letter sent to MBNA.

 

Thanks again

Taz11

 

Hi Taz,

 

You must not amend the protocols at all. Just the content of the letter (courtesy of X20) as so... I have done that for you, you just need to include the date you received the letter.

 

FOR OPTIMA

 

 

Dear Sir,

 

Re :

 

THIS IS A REQUEST UNDER THE CIVIL PROCEDURE RULES.

PLEASE DO NOT IGNORE.

 

I am in receipt of your letter dated 6th February 2009 this was received on (whenever).

 

You have indicated that:

 

"Your client has no alternative but to commence legal proceedings in order to procure a charging order on my home. "

 

I am sure that you are aware that I have long since requested from your client, under the Consumer Credit Act 1974 (The Act) a copy of the agreement to which both you and your client allege I am a signatory. To date this has not been provided to me and whilst I appreciate your client has endeavoured to persuade me that the provision of a copy of an illegible and piecemeal application form , not containing prescribed terms, is sufficient to discharge your client from further obligations under section 78 of the Act. Likewise I too have explained that the mere provision of a copy of an application form is not a legally permissable substitute for the provision of a true copy of the executed agreement as required under section 78 of the Act and as prescribed by Regulation 3 Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

I am sure you are also aware that under section 78(6) of the Act, whilst a creditor is in default of a request made under sub-section (1) they may not enforce the agreement.

 

Notwithstanding the foregoing and your client's persistent, unexplained and willful refusal to supply a copy of the executed agreement in accordance with its obligations (the permitted ommisions under Regulation 3(2) excepted), your client has made plain its intention to begin legal proceedings against me. In consequence this matter may now be treated as one which is subject to the control of the Civil Procedure Rules.

 

Take notice therefore that under CPR Practice Direction - Protocols paragraph 4.6(a) and (d), I request that you supply copies of the following documents:

 

[1] A true copy of the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed and

[2] Any further or subsequent notices, terms and conditions relied upon.

 

Please note that my request under the Practice Direction is not a request for production within the confines of the Act and Regulations but rather, it is for a copy of the executed agreement, including signatures and all such other notices, terms and conditions as will be relied upon in the event that your client shall begin a claim.

 

A copy of the documents I have requested should be supplied to me within 14 days and you are urged not to begin proceedings for a period of not less than 14 days following the supply of those documents to me.

 

Should your client elect to ignore my request under the Practice Direction and commence proceedings, it is likely that I shall repeat my request for the provision of documents under CPR 31.14. In the event that your client should fail to comply with my CPR 31.14 request, I will not hesitate in making an application to the court for an order that further proceedings upon the claim be stayed pending provision of the requisite documents, in the course of which application I will of course refer to this and previous requests for the provision of copy documents.

 

I look forward to hearing from you within the time stated.

 

Yours faithfully,

 

Right now, you need to send a follow up letter to MBNA.

 

Dear Sirs,

 

ACCOUNT IN DISPUTE

REF: Account no:

 

I am in receipt of a letter from your Solicitor, Optima Legal, a copy of which is enclosed for your reference.

 

As I have not yet received a response from my letter to MBNA dated (whenener) and received by you on (whenever) I was extremely surprised to receive Optima's threat of a charging order. Copies of both that letter and my reply to Optima are included for your ease of reference.

 

You are required by law to provide me with information in order for me to investigate fully the liablity to which you say I am a signatory. It makes sense to me that this is provided informally and amicably rather than on the direction of a Court order.

 

I would appreciate a reply to my letter dated (whenever) within 14 days. Alternataively, a Final response in order for me to bring to the attention of the OFT and Trading Standards, your disregard for OFT guidelines.

 

In respect to Optima's letter, I must now insist that all communication is conducted in writing in order for me to fully protect myself in respect of intended litigation by yourselves.

 

Yours faithfully

 

 

Enclosed: Copy of Optima's letter dated 6th February 209

Copy of my reply to Optima dated (whenever)

Copy of my letter sent to MBNA dated (whenever)

 

 

 

Then if you have not already done so and it is affordable. I would send a Subject Access Request to : Send this separately at the very least by Recorded Delivery.

 

MBNA Europe Limited

Chester Business Park

Chester

CH4 9FB

 

ATTENTION: Compliance Department

 

In the SAR you must list everything you want to see. HTH

Edited February 13, 2009 by citizenB

[Taz11]

Thank you so much CB, you are a star!!!:);-) I'll be busily printing those letters and they will be on their way to their destinations..

 

 

regards

 

Taz11

[angel_1]

hiya taz and everyone else with mbna problems

 

underdog got a thread that may be useful speaking with a solicitor on monday

 

http://www.consumeractiongroup.co.uk/forum/mbna/172769-mbna-agreement-now-threat.html

 

laters angel x

[Taz11]

Thanks Angel,

 

Haven't been online for about 10 days because had a fault on phone line which BT took ages to sort out, then broadband got cut off and had to wait to get it back on again.....

 

 

Anyway, this is the latest from MBNA received this morning, basically saying they don't have to let me know if they have an original.

 

 

also

 

"all the necessary prescribed terms are in the agreement" err??, no they are not, they are on a separate piece of paper which cannot be related to the "application form"

 

So where from here guys/gals ???.

 

I made a cpr request. Do I just hit them with a sar ??? or take it further??.

 

Thanks for any advice as always.

 

 

regards

 

Taz11

 

[pelham9]

The proof of the pudding will be in the eating.

 

 

 

 

I would write something like this.

 

I am puzzled. If you have the original agreement it would seem sensible for you to send me a copy of it rather than a series of documents that are not enforceable in court. The fact that you will not send me a copy of it can only be interpreted by me to mean that you do not have it and that your letter is inaccurate.

 

You will appreciate that if you decide to take court action you will be forced to produce the the original agreement. If you do not have it you have no case and your letter which will be produced in court will be a lie. If you do have it then show it now so that I and my advisers can check out the claims you make of it.

 

This matter is so simple that I do not see your difficulty.

 

_______________

 

I doubt very much that they have the original and their letter is a last desperate bluff to win the day. I would suspect they are almost at the point of capitulating.

[mikek]

After dealing with several banks and solcitors I write to quote my opinion:

1) If they send you copies of any document in response to s.77/78 of CCA 1974, they have complied with their obligations. They are allowed to give copies of unsigned documents as per the copy regulations for credit agreements

2) The minimum they need to enforce an agreement through the courts is ANY piece of paper (agreement, application form etc) with the prescribed terms and your signature. That is all they nees. see s.127(3) of the consumer credit act 1974

3) In court they would need the original but the Judge will accept exact (not true) photocopies as hearsay evidence. The onus is on them to prove that the back page is really the back page if they have copies. When arguing your case you would need to point this out and require that they prove that those documents were physically linked.

4) the APR is not a prescribed term. There is a tolerance of -0.1% +1%. If it is outside the tolerance it is improperly executed but because it is not a prescribed term, the court can enforce the agreement.

5) My experience from County courts (i helped friends that used the unenforceability arguments) is that this practice is seen as debt avoidance and most Judges fail to see this as third parties. They usually side with the banks. You need to put your arguments firmly. A good solicitor always helps.

 

All the best

[Taz11]

Once again, Thank you Pelham,

 

I will get that written up and sent to them. They actually sent me a letter earlier advising that if I contact them that;

 

"we could also discuss a reduced settlement on you account, which means we could decide to write off a significant proportion of your full credit card balance"

[Taz11]

@mikek,

 

so basically, are you saying that the only obvious defence at the moment is the fact that the prescribed terms cannot be seen to be related to the "application form" on a separate sheet. This I have pointed out to them in my previous letter.

 

thanks

 

Taz11

[pelham9]

4) the APR is not a prescribed term. There is a tolerance of -0.1% +1%. If it is outside the tolerance it is improperly executed but because it is not a prescribed term, the court can enforce the agreement.

 

 

1983 Regualtions. CCA

 

Agree. %APR is not a prescribed term. Its numerical value is hardly ever equal to the annual rate. I disagree on the latitudes allowed.

 

Schedule 7 1A

 

Permissible tolerances in disclosure of the APR

1A

 

For the purposes of these Regulations, it shall be sufficient compliance with the requirement to show the APR if there is

included in the document--

(1) a rate which exceed the APR by not more than one; or

(2) a rate which falls short of the APR by not more than 0.1

 

Shedule 1 requires both the %APR and the annual rate to be shown tacit agreement that they are not the same entities. Elsewhere in the regs the %APR is defined with its familiar rounding to one decimal place. If it is shown it must be shown within that numerical definition -there is no latitude in this. The latitudes above are not in the numerical value of %APR but whether or not it has to be disclosed and this qualifies the Schedule 1 requirement.

 

Having said all that you quite rightly point at that breaches in Schedule 1 interest terms only make an agreement improperly executed and a judge will almost certainly enforce. The courts give the banks great latitude which is against the spirit of CCA 1974. It was because the legislators presumed that the banks would ignore much of Schedule 1 that Schedule 6 - the presciribed terms - exists

 

The prescribed term for interest does not specify how the interest must be expressed so one must presume that an annual rate (Schedule 1), a monthly rate or whatever suffice. The %APR on its own is not sufficient because at its best it is only an approximation to the rate of annual interest to be charged.

 

However there are many agreements where both the monthly and yearly agreements are shown and these two entities do not correspond. Either one or the other is incorrectly stated. How do you consider that a judge will take this. What if the court were shown that a systematic fraud exists?

[Taz11]

Talk about a "hot potato"...lol, I can now really understand why you guys /gals have so much fun with these idiots. After sending a letter to Optima,I get this this morning......"ooooh its nothing to do with us , lets throw it back" lol

 

[angel_1]

hiya taz

 

sorry ive in and out on the forums and i apologise for not seeing your upto date posts - my own battles took my attention for a while too

 

so yours was passed to optima then, and now going back how interesting

 

no harm in the sar i would say if you are okay to spend the 10.00 and the postage, lets see if you get anything different, i didnt in my sar just the same as the cca - so now im awaiting on any lowlife to be sold the acc to and see what happens now

 

good luck in your continued battle laters angel x

[Taz11]

hi ya angel_1,

 

no probs, thanks for dropping in. I haven't heard a thing from MBNA apart from one phone call, since putting together a small letter which Pelham put together for me. That probs means I'll get one on my doormat now in the morning........lol.

 

 

thanks Taz11

[Taz11]

oh well just received this?? Another threatogram ??? Haven't had any default notice or notice of assignment. Is it actually worth answering??

 

Amazing that I send a letter to Mr Bez Shaw still requesting the cca, and I get the usual standard letter crap from the bottom of a filing cabinet!!!

 

 

 

Thanks Taz11

Edited March 13, 2009 by Taz11

[web2dude]

I had the same letter! Expect a letter from Optima Legal in about 2 weeks. Not sure what happens then.....

[Taz11]

Had one from Optima about 3 weeks ago, sent them packing with a reply letter and they returned it to MBNA.......lol I will look forward to receiving another , and they will get the same reply.........lol.

 

 

thanks for your input

 

Taz11

[citizenB]

Perfect, the letter from Optima returning it. Just what you wanted to happen. and the letter from MBNA.. hmm, do you see it has to be acceptable to them, not practical for you.

 

Now, I cant remember. I have they issued Default and termination notices on this account ?