Mint - what a load of rubbish they've sent !

[spartathisis]

well done abs )

 

My acc has been passed to triton (rbs dca) who received a stern letter! "Apologies sparta we sending you back to RBS/mint", too right.

 

I wonder why I havent had the same response you have had as I sent similar letters and am in the same boat i.e. application form no prescribed terms? maybe a little behind you (or is that you have a little behind?)

 

Well done again.

[Abby25]

Oh hi Mr Sparts ... !!

 

Wanted to let you know what had happened, and to thank you again for your help with this ..!!

 

Well, with myself, if you remember they admitted they didn't have a copy agreement at all ..... but were still trying to enforce ...

 

Then they sent me another letter saying "we have applied to our archieve dept for the agreement" .... to which I basically said thats funny last time you wrote it hadn't survived the passage of time.

 

So should you turn up an agreement now, I'd have grave concerns upon how this had actually been retrieved (i.e letting them know that I'd suspect they photoshopped it)... and accordingly would want to see the original doc, by court order, if not volunteered upon request .....

 

This appeared to scare the pants off them .... which is when the latest letter arrived ... just 5 days later .... in which they have basically said yes we admit no agreement, and therefore can't have a court enforce, and there is no need for court action for them to accept this.

 

But if I don't pay they will record this data with credit ref agencies which will affect my ability to borrow in the future.

 

So there you have it ... but I was wondering, should I go back and say they can't process my data without a signature, and that the balance should be reverted to zero.

 

Or just let things lay, and just wait for the default (which they will no doubt apply) to fall off in 6 yrs?

 

Abs xxx:)

[spartathisis]

Have a good read of this thread its very informative. http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

i believe surfaceagent x20 is a solicitor, his posts are normally very detailed and full of the finer legal points. Post 11 has a little info with regard to recording data, I would remind them that they are not allowed to process without your permission. Complain to the ICO, i have just put complaints in against HFC & MBNA, let them put the frighteners on them. Why accept the default?

 

You can also write to the CRA`s enclosing a copy of the "we dont have a CCA" letter stating that that RBS do not have permission to process your data. I believe they will look into it ans as you have then informed them they are then also liable if they continue to process data illegally.

 

Edited June 11, 2009 by spartathisis
missed something out

[peter1234]

Hi

 

Have been following your thread with interest

 

I have a tesco card( was RBS) have received similar stuff as you

 

I would be grateful if you could PM me the letter yousent (minus personal details of course) i also cpr have sent a reminder and it is being ignored. they have had 3months of letters from me asking for various documents which they never supply.

 

hope all goes well with you

 

thanks

[spartathisis]

posts 33 n 39, just copy n paste as req

 

Start your own thread n post a link on here, scan in app/cca they sent default etc. RBS obviously employ morons who hide behind titles so you never know if a letter is being looked at by the same people. They dont know the law, but try make out they do unfortunately.

[Abby25]

Quick update .....

 

Well Triton have now popped up .... going to send bemused letter ... but how can mint pass to internal dca, when they have admitted no agreement held, and that they know they can not enforce thru courts?

 

I am well and truly bemused ....

 

Abs xx

[spartathisis]

Hi Abbs. Did you think it would be that easy;) I too got passed back to triton again, but sent long letter detailing all the faults and all the case law involved. Guess what, sent back to Mint:) not heard anything for a month now so expecting them to have sold it on, hurrah! Makes it easier to deal with DCa who have fraudulently been sold a pup esp with all the paperwork from Mint.

[Abby25]

Hi Sparts,

Will advise in my bemused letter, that Mint have already admitted no CCA, and that they acknowledge they can not pursue this through the courts, and see what comes back.

Will keep you posted.

Abs xx

[cerberusalert]

Hi Sparts,

Will advise in my bemused letter, that Mint have already admitted no CCA, and that they acknowledge they can not pursue this through the courts, and see what comes back.

Will keep you posted.

Abs xx

 

Include a copy of Mint's letter as proof.

[Abby25]

Oooh good shout .... will certainly do that ...!!

 

Thanks as always for your guidance.....

 

Abs xxx

[angry cat]

Well, Triton knows the score, they are part of RBS!

 

RBS cannot enforce through the courts; S78(6) but bet your bottom dollar that they will try and make your life as miserable as possible...

 

Advice: Check ALL your CRA credit files.

 

My RBS data has already been processed for 6 years;

what did they do?

 

Registered a fictitous default that they claim occured 3 years ago; (NOT)

but filed it this year after the original data had fallen off my CRA files;

which extends the processing for a further 3 years:

3+6= 9 years.

 

RBS state that the adverse data will remain on my file until the (alleged) debt is repaid?

Do they mean that they will pursue me until the Grave?

 

Complaint has been logged with the ICO.

 

AC

[Abby25]

HI

 

Update on this ... following a collection letter from Triton, wrote to them telling them no agreement provided, and in fact Mint have already admitted unable to pursue.

 

Well today recd a letter from Mint, saying that their letter of xxxxxx, (i.e the one saying we know we can't pursue), was sent in error, apologise for any confusion, and say that the individual concerned has now been sent for retraining (author of the infamous letter was actually a senior recoveries officer), this latest letter is from a cust svc clerk - which makes it even more laughable ....

 

That also say they have satisfied my S78 request in sending the info on xxxx, which was a library copy of alleged t&c from the time, and that they do not consider the acct in dispute.

 

In fact they actually only admitted no agreement existed following my S31.16 request.... so their waffling about s78 is somewhat pointless....as I already know they have no agreement.

 

Anyhoo, they go on to say we reject your assertions under S10 of the DPA, we can pursue you, and also process your data, as the agreement you signed gave us permission to do so.

 

They stated that if I dispute I owe the money, they invite me to commence court proceedings ... and in the meantime suggest I contact Triton to arrange a repayment schedule .....

 

So the upshot is :-

1. No copy of executed agreement held

2. Letter subsequently recd from them saying "we know we can't pursue you"

3. Retraction of letter saying "we know we can't pursue you"

4. Threat of data recording, and debt colletion activities to commence

5. If you dispute our right to pursue you for outstanding moines, take us (Mint) to court

 

Love anyones comments on this absolute shambles Mint have created, and are now trying to desperately back peddle out of it.....

 

Abs xx

Edited September 4, 2009 by Abby25

[cerberusalert]

5. Pay up or take us (Mint) to court

A bit back to front aren't they?

 

Normally it's a creditor who takes the alleged debtor to court to obtain an order for payment, not the debtor taking the creditor to court to obtain an order not to pay.

[Abby25]

Exactly .... here is a transcipt from their letter ....

 

"We do not consider this account to be in dispute and your indebtedness on this acccount remains due and payable, and we will be pursuing for the full repayment.

 

All non payments have been recorderd on your credit file as has the default due to non payment. We require repayment of the debt you owe us and we do not consider it necessry to meet your unreasonable request you have now made (don't know what request they refer to ? Presume copy of singed agreement).

 

If you dispute our legal right to have the money you borrowed from us repaid, you are free to bring the matter to the attention of the courts".

 

I thank you .... Abs x .

[cerberusalert]

MMmmm....sounds as if baby's fell out the pram.

 

[Abby25]

Hi Cerbs .... love the baba ..... he has some great moves !!!!

 

Does that mean M have left themselves up sh** creak without a paddle or armbands??

 

Abs xx:D

[spartathisis]

Looks like I have caught you up:)

 

Had a letter from Green & Co, in-house sols, telling me to pay up or they may issue proceedings as their clients may want to go down that route! Reply sent and they now say I should be contacting Triton not them (Greens)?

 

I would make a formal complaint to the ICO re data processing and then one to the OFT. From now on I intend enclosing a copy of the below with every letter I send to a creditor/DCA. It may have been posted somewhere on CAG, but I dont know where.

 

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless a document in

the prescribed form, itself containing all the prescribed terms and

conforming to regulations under Section 60(1), is signed in the

prescribed manner, both by the debtor or hirer, and by or on behalf of

the creditor or owner".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

[cerberusalert]

Well, without an enforceable agreement they're snookered. Did you notice in their letter how they failed to threaten any legal enforcement?

[spartathisis]

The above does not set a precedent, but I believe shows a strong case.

 

Dont forget the monkeys at Mint are trying to hang onto their jobs so whoever can write off the least will be kept on (they think ).

[spartathisis]

Cerbs, you are a man (or woman) of many posts!!

[maroondevo52]

Cerbs, you are a man (or woman) of many posts!!

 

I've yet to see a bad one

[Abby25]

I will scan the whole booty tomorrow - they have already admitted they know they can not pursue with no agreement, but I suppose they now think its worth a bit of ignoring the law, just in case I'm happy to go along with whatever they tell me ....

 

They have stated that the fact I have not previously questioned or cancelled the account, shows I agreed to the terms and to repay monies borrowed.

 

Cerbs & Sparts I always value your very excellent advice ..

 

Abs xxxx

[cerberusalert]

Enforceable agreements are a concept that creditors & DCAs can't get their heads around...... when all else fails they try to play the 'morality' card, which is again strange because they have no concept of that either.

[angry cat]

RBS, have no morals and;

I question the motive behind RBS sending out all those;

your credit agreement has been mislaid template letters!

 

We all know that, every case is different, therefore I cannot see how a one size fits all template (computer generated) letter can be sent out to thousands of RBS customers with varied issues.

 

Does'nt make sense to me!

 

In my own case, initially RBS sent me a blue peter conjectured reconstruction;

then back peddled stating that they do not have sufficient information about the account, in order to recreate;

then sent me two separate, 'we have misfiled your credit agreement letters, s78(6) applies.

 

For many years now, I have been aware of the covert tactics employed by RBS.

Thus, I query their true intentions...

 

AC

Edited October 25, 2009 by angry cat
spelling error

[Abby25]

Ok .. time for a little update on this ...

 

You will recall Mint had admiited no agreement held, and that they knew they had no legal redress to pursue .... then decided they shouldn't have let me know that, and tried to retract it saying the individual had gotten confused on what the situation of the accout was ....

 

Well, as you might guess I sent a letter reiterating the legal position of the them having no agreement, unable to process data .. etc.. etc... you get the picture ... also said that the attempt of a customer service clerk try to distance themselves from the admission of a Senior Recoveries Office was both simply both embarrasing and quite ludicrious ....

 

Anyway, happended to be checking my credit ref file for any new defaults .... and to see what Mint were doing ... when I realised I couldn't find them ...

 

I logged off, and went back on twice .... still no Mint Account registration, who were definately listed on there ... and showing arrears etc due to the dispute ... I was so confused that I pulled up the copy I had saved of my report in May .. and yes there they were ....!!!

 

Have bizarre, they simply haven't responded to my last letter which well and truely put then in the picture, and I haven't been told by them that they had written off the account or anything of that nature.

 

Could this be a mistake by Experian that they have removed by mistake, or (hope against hope!!!) have Mint threw in the towel !!!

 

Anyone else had anything like this happen ?

 

(by the way I've only got this far due to the immense help of the wonderful caggers!!)

 

Abs x