MBNA harassment - Please Help! now sd from capquest

[mickrick]

I am having a terrible time with MBNA. Right now my wife is on the phone with them and once again we are getting nowhere.

 

Basically, I am in arrears with Alliance and Leicester credit card paymentsed to pay, MBNA collections staff have done everything in their power not to take a payment from me. A manager "offered" me a 60% reduction in my outstanding balance on Thursday last week and after I agreed a payment plan over 60 days, at great financial disruption to my family, then said that they needed a financial statement from me and a credit search. This offer has now been reneged on.

 

I have asked that no further calls be made to my employer-issued mobile phone, but the calls and texts continue and they deny me ever having made this request. I have raised a dispute on the oustanding amount as at least 50% is made up of charges and interest, which they have raised to 34.9%. Although I have offered to pay, they are threatening to put an attachment of earnings order on my wages. Are they allowed to do this?

 

They are condescending and threatening and I feel totally harassed by them. What can I do to try and get this nightmare resolved?

[Rooster-UK]

Hi Mickrick.

 

Rule number one.... Do NOT speak to them on the phone. Insist on all communications being in writing only. Don't answer any of their security questions, then they cannot continue because of the Data Protection Act.

 

Next, send this letter to them, recorded delivery......

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/37006-harassment-telephone-response-letter.html

 

Rule number Three...... Don't speak to them on the phone. They will only try to bully you into making offers that you cant afford.

 

Rule number Four...... Still don't speak to them on the phone.

 

Regards, Rooster.

[cerberusalert]

No they can't get an attachment of earnings without a court order.

 

First send them a CCA request to see if they are entitled to collect this debt & if it's enforcable. They have 12 + 2 days to comply to your request. If they fail or the CCA is unenforcable you can legally withold any payment until they do. Send it recorded delivery enclosing a £1 postal order. When you get a reply, scan it & remove any identifying details and post it back here where we can have a look at it. We'll advise you from there;

 

Dear Sir/Madam

 

Re:- Account No: XXXXXXXX/Your Reference Number: XXXXXXX

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

You should also note that I will only discuss this matter in writing and should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you or any of your associates.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

 

I have verbally requested that no telephone calls be made to me, but I am still receiving calls. I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

 

Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

 

I look forward to hearing from you.

 

Yours faithfully

 

(Print do not sign signature)

[Pinky69]

Don't offer to pay them anything. Send a formal complaint to their Complaints Department that they are harrassing you for payment and threatening you with court action whilst the account is in dispute, contrary to the CUPTR 2008 and OFT guidelines - and send a copy of your complaint to the OFT, marking on the bottom of the complaint to MBNA that you are doing so (Cc - the Office of Fair Trading Licence Fitness Department - for information). At the moment OFT are gathering info to slap banks/DCAs down for unlawful activity and the banks/DCAs are wary of them - 1st Credit has just had a very severe warning from them and the OFT are monitoring them closely. They are finally waking up to all that is going on out there. Enclose this with your complaint:

 

Dear Sirs

Harassment by telephone

 

Account Number: XXXXXXX

 

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing. I now require all further correspondence from your company to be made in writing only.

 

 

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

 

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

 

Yours faithfully,

[mickrick]

Thanks for everything so far guys. I have the first letter printed ooff and ready to go tomorrow.

 

Pinky69, is there a template for the letter re threatening court action or is it pretty straightforward?

[Pinky69]

No Template. Just base it on the outline I gave you and put the heading in bold and underlined "Complaint against MBNA for breaches of the CUPTR 2008 and OFT Guidelines" then tell them exactly what has been happening.

[mickrick]

Thanks again for all your help. Here's an update.

 

I waited for a week and a half for a call from a CS manager, apparently CS weren't too happy with the way I'd been treated and promised a manager would ring in order to get the matter sorted out. I'm still waiting.

 

In the meantime, I continued to get phone calls and text messages. So I sent my letter and £1 postal order on 13th March and according to the Post Office's website, the letter was delivered on March 16th (2 weeks ago today) and to date, I have received no copy of my credit card agreement. I have received just one phone call and one text message (they have "important information" for me, allegedly) since then so I think they may have gotten the message regarding harassment.

 

I've now started receiving threatening letters, court action, attachment of earnings etc but I can live with that. And the interest and charges just keeps mounting up.

 

So it looks like MBNA isn't adverse to shirking their own responsibilities when it comes to their customers.

 

So, what's my next step?

[cerberusalert]

Send them this;

 

Account In Dispute

 

Ref:

 

 

 

Dear Sir/Madam

 

 

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

 

You have failed to comply with my request, and as such the account entered default on **DATE**.(12+2 days after you sent the CCA request)

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore;

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation. This limit has expired

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)(a) He is not entitled , while the default continues, to enforce the agreement.Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested. Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

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

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

 

Yours faithfully,

Print name do not sign

[mickrick]

Okay, it appears that MBNA seems to think it is above the law. So far they have failed to respond to either of my letters but still continue to send me threatening letters of their own.

 

So what is my next step?

[cerberusalert]

Make a complaint to your local Trading Standards & the OFT

[mickrick]

Although I wrote to them on 2 occasions, MBNA ignored my request for a copy of my credit agreement for 3 months and even said they never received my letters, sent by recorded delivery and which I have evidence they received (for more info on this, see here).

 

Then, out of the blue, they sent me a letter a few weeks ago with a copy of THEIR terms and conditions (the original agreement was with Alliance & Leicester Visa and MBNA did not start administering this until much later) and stating that "...a copy of the original credit agreement has been requested for you and should A&L be able to provide us with a copy, we will forward it to you". The letter goes on to say that "...we are not required to serve a copy of the credit agreement which includes signatures, as the law expressly permits lenders to omit signatures from copies of all credit agreements". I have not received this to date. No reference has ever been made to the account being in dispute or the reasons for the dispute.

 

Today, I got a letter from a DCA named capQuest, saying my "debt" had been sold to them and that MBNA told them I had not been in contact with them "for some time". They are threatening court action, including bankruptcy if necessary, if I do not make an agreement to pay off the "debt" by 15th July. No mention is made of any outstanding figure in the letter.

 

It appears MBNA believes it is above consumer law and not adverse to telling a few porkies in order to get its way.

 

So, what are my rights here? I believe that, as the account is in dispute, they are legally prohibited from selling my account to a DCA, and in turn, the DCA is prohibited from taking legal action against me. They have also continued to pile on interest and charges to the account, even though as the account is in dispute, they are prohibited from doing so.

 

Any help, along with legal pointers, would be greatly appreciated. I can post copies of my correspondence with MBNA and the DCA if required.

[spartathisis]

write to capquest informing them that MBNA have sold the debt while in dispute and you are still awaiting the CCA. Post the info up, better if its onsay flickr or photobucket so we can see the details, dont forget to block out personal details.

 

MBNA are sh*ts and yes they do think they are above the law, report them to the Information Commisioners Office they will investigate. I would also report them to the OFT and their local Trading Standards office, the more pressure the better.

[sam614]

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

 

send them this.

 

SAM:pLOWELL DETESTER

[cashins]

Hi mickrick

 

Just posted a link to your thread on this. (Hope you don't mind)

 

http://www.consumeractiongroup.co.uk/forum/mbna/184041-all-mbna-caggers-fight-61.html#post2268106

 

Hopefully it will now also be seen by a large number of fellow MBNA haters, who can offer advise as well!!

 

David

[postggj]

morning mickrick

 

ive just finished having a dca in court ref mbna

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/205944-mortimer-clark-court-claim.html?highlight=postggj

 

have a nose

 

right then

as long as you sent mbna a cca request with the £1 postel order, by recorded delievery, mbna are in default and should not have passed the account to crappyquest

 

send mbna a letter to this fact and tell them to take the account back

 

crappyquest are prob only collecting on behalf of and dont own the debt,

you might ask mbna in your letter if the account has been assigned to crappy quest

 

in my link pay attention to the t & c like you have mentioned

 

when was the last time payment was made on the account

[4Star]

I too have had my debt "sold" to capquest from MBNA.

 

does anyone have a template letter that i should send back to MBNA ?

 

should i report this to OFT and ICO ? and if so is there a procedure for doing this ?

[nicklea]

write to capquest informing them that MBNA have sold the debt while in dispute

 

I would disagree with this. In doing this you are admitting receiving notice of the sale which, if they do take you to court, is not a good thing to do.

 

Also, there is absolutely nothing to stop mbna selling a disputed debt.

[postggj]

if an account is subject to a complaints procedure, or a cca requests, all collection activity is to stop including any enforcement until compliance,

that includes selling a disputed account

 

thats in the cca

[nicklea]

While it is true that continuing collection activity after the account has been reasonably queried or disputed comes within the OFT Debt Collection Guidance under the headings of Deceptive and/or unfair methods and also pyschological harrasment, there is nothing in the CCA that stops the creditor doing this.

 

The CCA merely says that while a creditor does not respond to a s77/s78 request it may not enforce the agreement.

 

Further, the CCA does not make reference at any point about selling a debt

[4Star]

While it is true that continuing collection activity after the account has been reasonably queried or disputed comes within the OFT Debt Collection Guidance under the headings of Deceptive and/or unfair methods and also pyschological harrasment, there is nothing in the CCA that stops the creditor doing this.

 

The CCA merely says that while a creditor does not respond to a s77/s78 request it may not enforce the agreement.

 

Further, the CCA does not make reference at any point about selling a debt

 

So what should I do?

 

Send letter to mbna saying what?

Or

send letter to capquest saying what?

Or

oft/ico saying what?

 

Or all 4?

[sam614]

if an account is subject to a complaints procedure, or a cca requests, all collection activity is to stop including any enforcement until compliance,

that includes selling a disputed account

 

thats in the cca

 

agreed..

 

"you may not pass to a third party":lol:

 

SAM:pLOWELL DETESTER

[sam614]

So what should I do?

 

Send letter to mbna saying what?

Or

send letter to capquest saying what?

Or

oft/ico saying what?

 

Or all 4?

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

 

have a read of this

SAM

[nicklea]

4star,

 

What you do depends on your personal circumstances.

 

First of all, I would suggest that you do not acknowledge receiving any letter from capquest. This will be very important in case they ever try to start court proceedings against you.

 

What is your current credit rating like - do you have lots of defaults etc or not?

 

What is the situation with mbna - are you still paying them the contractual amount or a token payment or nothing at all?

 

Have they sent you a default notice?

[Benni Bronx]

Have received a letter from their solicitors regarding a Legal Charge

 

The CCA I have received has no credit limit on it or signature (or space for it) for MBNA amongst a few others.

 

Where would you recommend I go from here?

[nicklea]

agreed..

 

"you may not pass to a third party":lol:

 

SAM:pLOWELL DETESTER

 

sam614,

 

I would be grateful if you would let me know which section of the CCA it is that you believe says this.

 

Also, you mention this letter:-

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

 

As 42man clearly states at the top of that page, that letter is for use where the debt is passed to a debt collection agency.

 

It is NOT for use when the debt is sold to a different company as has happened in this case if you read the OPs post.