MBNA debt bought by Link - don't know what to do - can anyone help please?

[joemay]

Hi Massamum, I was wondering about you today, how spooky. Sorry to hear you've been unwell, hope it isn't anything too serious.

 

Unfortunately, I can't help you on your t&c's - but i'm sure pretty sure angry cat will be along shortly to help you out.

 

Take care of yourself

Joemay:)

[Massamum]

Hi Joemay, it was serious enough to put me out of action for quite a while and then I needed an operation, still getting over it. I do hope someone can help me soon, I really need to move forward on this, was just about to fill out the complaint to Information Commissioners when I came across what I mentioned above.

 

How are you, I haven't had a chance to look at your thread - are they still leaving you alone? I do hope so.

[joemay]

I'm sure someone will be along shortly. Hope your recovering well from the op.

 

I'm not bad starting battles with Natwest & Halifax, and yes haven't heard a thing from Link, looks as if they can't find what their looking for;)

 

Take care:D

[Massamum]

thanks. Great news about Link - good luck with NW and Halifax.

 

bump if anyone can help with above please

[Massamum]

bump

[joemay]

Bumping - can anyone help with Massamums post #100 regarding T&Cs

[Massamum]

thanks Joemay.

 

Anyone???

[MARTIN3030]

Confirming that site team aware-please hang on a bit.

[joemay]

Thanks martin:)

[the_shadow]

Massamum I see you've got site team awareness so you'll get a better response than mine, but from what I've just read back.. you applied under s78 to Link and they've sent you a copy of an online application and t&c printouts which dont match.

 

In my mind that means they are in default of the s78, they have to show you the t&c as you would have seen them on the screen when you applied for the card to conform with s78 in my opinion.

 

If you selected PPI and that was a separate t&c then that should be included too afaik

 

As to enforceability, I'm afraid only the prescribed terms need to be on the form which contains the signature (in this case a "tick")

 

S.

Edited July 31, 2009 by the_shadow

[Massamum]

Thanks Joemay and also Martin.

 

Hi Shadow, thanks very much for your response. Sadly I think you are right about it being enforceable

 

 

Link sent me a copy of the CCA but attached no terms and conditions whatsoever.

 

MBNA (original creditor) sent me a copy of CCA and new terms and conditions in response to an SAR. They omitted NOD and Termination Notice though.

 

I wrote back to both Link and MBNA requesting the omitted docs and giving them 21 days to reply. I heard from Link who are insistent they have fulfilled their obligations under s78 but have not heard from MBNA (who are well over the 21 days). As I’ve been unwell I haven’t gotten round to reporting them to the ICO yet but will have to get my act together soon and do so.

 

I have been looking through MBNA’s SAR papers today and the PPI and others charges make up about £3k so I think I will definitely try and reclaim that and try to make a full and final to Link, hopefully that will get them off my back. No idea how I go about doing this though.

 

 

I hope I’ve explained that alright, I’m not very good at getting things down clearly.

[Massamum]

bump - still not sure what to do

[joemay]

Hi Massamum,

 

Have you managed to figure out what to do with this one? If not maybe get one of the site team to point you in the direction of someone who'll be able to help.

 

Good luck massa:D

[Massamum]

hi Joemay, thanks for your message. Still unsure what to do about this. Can't work out if its best to ignore Link and MBNA or keep sending them letters reminding them of their obligations (which fall on deaf ears). Could anyone please advise on what my best course of action would be? Thank you.

[Massamum]

am bumping this. Have received more threats from Link, demanding I pay up.

[lilly white]

ok pleae read this.

 

 

4. In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and Sainsburys Bank, secondly that such an agreement complied with the requirements of The Act (and all consequential regulations made thereunder) both at the date of inception and at all times thereafter. Thirdly it must establish that Sainsburys Bank complied with all of the provisions of the Consumer Credit Act 1974 (“the Act”) in that it must show that it served a proper default notice upon myself prior to terminating the agreement and prior to commencing proceedings. Fourthly, if the Claimant was not Sainsburys Bank then it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fifthly that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925. Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

 

Well imho they have got this all wrong.

 

THE DATES DO NOT ADD UP, BECAUSE HOW CAN THE NOA BE THE SAME AS THE END OF THE DEFAULT NOTICE.

 

So have you had a noa from the oc

 

So if the own the debt, it is just the outstanding in the default sum

[The_Grumlin]

This kind of question come up a lot, an assignment can be made on any date, but not before the notice of assignment.

 

It is when it become effective that is important, that is when you get the notice of assignment from one of the parties assignor or asignee. That is when in this case Link can start to hassle you for payment or take action in their own name. That is if the paperwork actually exists and the alleged assignment by deed is absolute.

 

The notice has to be acurate, however DCA's do omit dates or balances as they do get it wrong very often.

[angry cat]

If Link Financial have failed to send you every document as referred to in the original credit agreement;

Link Financial remain in default of your valid CCA Request.

 

Furthermore, Link Financial must provide to you documentary evidence proving that, they are legally entitled to pursue the alleged debt;

a notice of assignment from Link will not be sufficient, they must provide an original copy of the document of the purported sale.

 

AC

[angry cat]

http://www.consumeractiongroup.co.uk/forum/show-post/post-2371072.html

[Massamum]

OK, thanks very much for all your replies. Lilly, that was a very useful read, would it be possible to let me know the case law this comes from please?

 

No NOA from OC, only from Link (at post #15).

 

MBNA sold the debt on before the date of remedy in the default notice and the DN is also dodgy (post #11).

 

Thanks also AC, I requested a copy of the deed of assignment from Link ages ago but they are refusing point blank to let me have a copy.

 

I have this morning received a response from Link to my letter requesting all of the documents referred to the in CCA, they have responded by sending the same terms and conditions as MBNA sent (i.e. the latest ones). They seem incapable of understanding the simplest of requests . What now???

[vint1954]

OK, thanks very much for all your replies. Lilly, that was a very useful read, would it be possible to let me know the case law this comes from please?

 

No NOA from OC, only from Link (at post #15).

 

MBNA sold the debt on before the date of remedy in the default notice and the DN is also dodgy (post #11).

 

Thanks also AC, I requested a copy of the deed of assignment from Link ages ago but they are refusing point blank to let me have a copy.

 

I have this morning received a response from Link to my letter requesting all of the documents referred to the in CCA, they have responded by sending the same terms and conditions as MBNA sent (i.e. the latest ones). They seem incapable of understanding the simplest of requests . What now???

Hi Massamum,

 

You can try sending this letter to whoever owns the debt at present.

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of the origonal creditors current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act. You will also be aware that the Origonal Creditor, should not have asigned this alleged account to yourselves, while in clear dispute with them.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a "true copy" of the agreement.

In relation to what constitutes a “true copy”, please read the details below. In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

This breach of the agreement by yourselves, can be demonstrated as follows:

 

As you will know section 180(1) (b) authorises, "the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form." This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable. I await a “True copy” of my agreement and would remind you again that, whilst the request has not been complied with, the default continues.

Below are the relevant main points of the Law and OFT regulations while the account is in dispute and you remain in default.

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• You may not add further interest or any charges to the account
  
• You cannot register any data with a third party.
  
• You cannot take any enforcement action, including registering Defaults.
  
• You cannot pass the account on to a third party for collection.
  
• You cannot sell the account.
  

I am now granting to you a further 7 days to produce a true copy of any executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable reconstructed Application form with added Terms and Conditions that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

 

Yours faithfully

 

[Massamum]

fantastic, many thanks Vint.

[vint1954]

No problem, keep the thread updated as you have replies to post.

[Massamum]

Notes contained within MBNA SAR show that account was sold to Link - does anyone know if this count as termination?

 

thanks.

[joemay]

Hi Massamum,

I've responded to you PM.

 

Have Link or MBNA sent a letter at all stating that the agreement has ended. My understanding is that if sold to a dca then the agreement has terminated - but I maybe wrong. Hopefully someone will confirm if it's the case.

 

Glad to hear everything has been quite for you with Link.

 

Hope you have recovered from you Op:)

 

Take care

Joemay