MBNA sold to Experto - no CCA

[vint1954]

Ive looked at the MBNA library which does show alot of similar examples. I noticed the note with them is always 'there is a question of legibility but if a good copy is produced then it can be enforced'. This is leaving us in a real dilema not knowing what they will produce.

I have not yet replied to the CCA I agreed so now they will be assuming that the account is no longer in dispute. As my main fear is not having anything concrete to argue in court I was trying to come up with something more as a back up, or strengthener to my arguement for still being in dispute, allowing me to rightfully withold payments. What I am wondering is, as me and LB145 had to wait for our agreements for a time longer than was permitted, the accounts were in placed in dispute. When an account is in dispute there should be no interest or charges added to the account. As they can not deny that the agreements where sent very late to us, even in court, surely they cannot argue that the balances that are displayed on our statements are correct if they have put any charges or interest whatsoever during the period we waited for our agreements whilst in dispute.

Is this something that has been tried before? I have looked but can see nothing more than alot of people quoting the regulations with this in, for when they send the in dispute letter, rather than using it in an arguement later.

I would be inclined to challenge this on the fact that the 2 documents are not part of the same agreement.

 

You realy need to start your own thread on this one.

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only a tear off strip, devoid of all prescribed terms, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

• You may not ask for payment against this account.
  
• I am not obliged to offer any payment against this 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.
  

Let me explain here, what a true copy is:

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.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

I am now granting to you a further 7 days to produce a copy of an 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 document, 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.

I look forward to your response.

[catsfella]

Thanks again for your time! Yes I will start a new thread and post a link.

[LB145]

I am receiving emails from Bank of America - would this be about the MBNA accounts?

[exchange]

Yes, you should block them.

[LB145]

Just arrived letter from Restons' Solicitors regarding my MBNA account - please let me know your thoughts and suggestions.

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNASolicitors.jpg

[vint1954]

Just arrived letter from Restons' Solicitors regarding my MBNA account - please let me know your thoughts and suggestions.

 

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNASolicitors.jpg

Hi LB,

 

Without going back through the thread, can you recall if we thought the agreement was faulty?

[Dotty50]

Hi Vint,

 

CCA on posts 23,24 & 31 and your initial response is on post 31.

 

LB is a little further on than me and I am in the process of drafting a letter to MBNA after trying to speak to them to see if I could arrange a short settlement after being given some advice from another Cagger.

 

Although the advice given worked for them, it didn't for me and will NEVER speak to them again.

 

I will post my letter on my thread when I have completed it and would appreciate you taking a look and giving me your opinion.

 

I wasn't planning on quoting all the rules and regulations as they seem to ignore these anyway. Just the facts as they stand to date.

 

MBNA are the pits!

 

LB, don't let them grind you down

[LB145]

Dotty huge thanks for pointing Vint to the postings showing the "application form aka CCA" I keep checking to see if he (Vint) has responded, his wealth of knowledge is so badly needed (Vint- are your ears burning?!!). I have been so busy that I am struggling to keep on top of paperwork.

 

Dotty I will have a look at your latest thread, I do not appear to be receiving notifications as I would liek to know how your settlement approach went!

[vint1954]

Send a copy of this letter to restons, this is the one you sent to MBNA telling them to try harder with their John Bull printing set.

 

MBNA Bank Europe

PO Box 30

Chester Business Park

Chester

CH4 9FD

 

ACCOUNT REMAINS IN SERIOUS DISPUTE

 

xxxxxxxxxxxxx 2009.

 

Dear xxxxxxx,

 

Re account no xxxxxxxxxxxxxxxxxxxxxxx

 

I am in receipt of your letter date xxxxxxxxxxxxxx and note its contents. I am also in receipt of incomplete documentation in relation to my Subject Access Request . I also note, that MBNA are still in breach of supplying the documentation that I have previously requested under s78 of the Consumer Credit Act 1974.

 

Within the Subject Access Request pack, received from MBNA, was a copy of a reconstructed application form, where Terms and Conditions had been added to the advert side of the alleged agreement. As you are aware, this reconstructed document, is not considered as acceptable, as a True Copy of any alleged executed agreement that you may hold.

 

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.”

 

I am now granting to you a further 7 days to produce a true copy of any executableagreement.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.

 

As I have insisted many times, I will not contact you by phone. All communications must be kept in writing.

 

You must also consider this letter as notice under s10 of the Data Protection Act, to cease processing my data. All entries which refer to missed payments be removed from my credit file All collection activities cease with immediate effect until you comply with my request from xxxxxxxxx or such time as a court makes an enforcement order.

 

 

 

Yours sincerely

[vint1954]

You can send this as a cover letter, along with a copy of the above and the letter from MBNA post 31.

Ref Account xxxxxxxxxxxxxxxxxxxxxxx

Dear xxxxxxxxx,

 

I was somewhat bemused to receive your letter of xxxxxxxxx 2009, the content of which is noted. No debt to your client is acknowledged.

 

On xxxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. MBNA have failed to comply within the statutory time limit, supplying only a poorly reconstructed version of an application form. In addition, this alleged account was placed in dispute on the xxxxxxxxx 2009. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. These letters are enclosed.

 

In the circumstances, your threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection and your attention is drawn to this guidance document.

Your attention is also drawn the ICO on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to MBNA under s10 of this act. You may wish to refresh yourselves of the implications of ignoring the Data Protection Act.

Should you attempt litigation it will be vigorously defended and the failure to supply credible documentation under the CCA 1974 is a complete defence under s127 (3) to any legal action and your actions will be considered vexatious and unlawful. The Court's attention will be drawn to the above statutory breaches. Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

I would remind you that while this alleged account remains in dispute, that MBNA and now Restons:

• May not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• Cannot register any data with a third party.
  
• Cannot take any enforcement action, including registering Defaults.
  
• Cannot pass the account on to a third party for collection.
  
• Cannot sell the account.
  

I have enclosed a copy of the letter to MBNA detailing where they failed to supply adequate documentation and also a copy of their recent letter to me, outlining the fact that they are at present unable to locate a copy of the executed agreement.

I trust this out lines the situation and that you will take note of my comments, to avoid any further breaches of the Law, being committed by you.

[vint1954]

Dotty huge thanks for pointing Vint to the postings showing the "application form aka CCA" I keep checking to see if he (Vint) has responded, his wealth of knowledge is so badly needed (Vint- are your ears burning?!!). I have been so busy that I am struggling to keep on top of paperwork.

 

Dotty I will have a look at your latest thread, I do not appear to be receiving notifications as I would liek to know how your settlement approach went!

No, ears not burning. I have been a tad busy myself.

[vint1954]

[ATTACH]14737[/ATTACH]

 

That is how easy it is for them to manipulate an agreement, note the side strip gone.

[LB145]

You can send this as a cover letter, along with a copy of the above and the letter from MBNA post 31.

Ref Account xxxxxxxxxxxxxxxxxxxxxxx

 

Dear xxxxxxxxx,

 

I was somewhat bemused to receive your letter of xxxxxxxxx 2009, the content of which is noted. No debt to your client is acknowledged.

 

On xxxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. MBNA have failed to comply within the statutory time limit, supplying only a poorly reconstructed version of an application form. In addition, this alleged account was placed in dispute on the xxxxxxxxx 2009. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. These letters are enclosed.

 

In the circumstances, your threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection and your attention is drawn to this guidance document.

 

Your attention is also drawn the ICO on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to MBNA under s10 of this act. You may wish to refresh yourselves of the implications of ignoring the Data Protection Act.

 

Should you attempt litigation it will be vigorously defended and the failure to supply credible documentation under the CCA 1974 is a complete defence under s127 (3) to any legal action and your actions will be considered vexatious and unlawful. The Court's attention will be drawn to the above statutory breaches. Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

 

 

I would remind you that while this alleged account remains in dispute, that MBNA and now Restons:

• May not ask for payment against this account.
  
• I am not obliged to offer any payment against this account.
  
• Cannot register any data with a third party.
  
• Cannot take any enforcement action, including registering Defaults.
  
• Cannot pass the account on to a third party for collection.
  
• Cannot sell the account.
  

I have enclosed a copy of the letter to MBNA detailing where they failed to supply adequate documentation and also a copy of their recent letter to me, outlining the fact that they are at present unable to locate a copy of the executed agreement.

I trust this out lines the situation and that you will take note of my comments, to avoid any further breaches of the Law, being committed by you.

 

 

Thanks Vint, I have done the letters all sealed - minus the last about the letter from MBNA trying to locate document as this referes to my husbands Account. Much appreciation as I this is such a busy time for all.

[LB145]

Received a letter this morning to say that the account (MBNA 1) is about to be sold to a third party.

[Dotty50]

Hi LB,

 

I have had four from them, three in total today, they have been busy!

 

Still no CCA for the one and only a tear off slip for the other.

 

Now have another couple of letters prepared.

 

It's hard work, isn't it?

[LB145]

Yes Dotty - MBNA have been busy

 

MBNA Account 1

I have had 4, postcard to say they are calling from 7th Dec

Letter 1 - telling me that a default will be sold on to a Third party

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNADec1stLetter.jpg

 

Letter 2 - Offering Options - saying that a partial settlement and they would not take any further action to recover this amount?

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNADec2ndLetter.jpg

 

Letter 3 - MBNA offering one last final chance to pay, no legal action and the account will not be pursued further by any other external vendor?

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNADecLetter3Page1of2.jpg

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNADec3rdLetter1Page2of2.jpg

 

MBNA Account 2 (Husbands)

 

Postcard notifying of calling - different picture to mine!

Same 2nd letter - just bigger amounts!

[mills1]

Yes Dotty - MBNA have been busy

 

MBNA Account 1

I have had 4, postcard to say they are calling from 7th Dec

Letter 1 - telling me that a default will be sold on to a Third party

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNADec1stLetter.jpg

 

Letter 2 - Offering Options - saying that a partial settlement and they would not take any further action to recover this amount?

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNADec2ndLetter.jpg

 

Letter 3 - MBNA offering one last final chance to pay, no legal action and the account will not be pursued further by any other external vendor?

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNADecLetter3Page1of2.jpg

http://i713.photobucket.com/albums/ww132/Diamond40_photo/MBNADec3rdLetter1Page2of2.jpg

 

MBNA Account 2 (Husbands)

 

Postcard notifying of calling - different picture to mine!

Same 2nd letter - just bigger amounts!

 

 

The first link on letter 3 has to be the best

" Remortgage your house "

 

Is a partial settlement as bad as a default on your credit file ?

Thought I read somewhere it was, so what are they talking about?

Best wishes.

[vint1954]

LB,

 

You need to report MBNA to the OFT. They must not induce you or suggest that you take on further loans to clear a debt.

[LB145]

Vint urgent assistance required, had two further letters from MBNa stating this is at final stage, phone calls again for husband - the MBNA man asked me to listen for a second so that my husband is aware that he is being defaulted at the end of Dec. They are prepared to have a "partial" settlement of £5k (25% - please do not look so horrified at the total - my shame is great!!!)- he siad that they have sent everything they are supposed to according to the OFT and that the Application Forms are the agreements for MBNA and the default is registered for 6 years etc. I said that a partial settlement was not satisfactory as I have not seen any proper CCA from them and that with a partial settlement it opens doors to other debt companies buying the remainder - he said that they have to refer it as "partial" but it will be in writing that no other third party of thermselves will collect the remainder - he is sending this offer in the post so that I have a copy. What advice can anyone suggest!!! - Obviously Ii know the decision is ours but really would appreciate other views.

[Dotty50]

Hi LB,

 

Well if I or a 'third party' had the funds to get rid of them. Personally, I would initially make a counter offer of 20% or even lower. I have recently read a thread where they also removed all information from the CRA's as well, which would certainly be worth getting.

 

Pretty sure I am subbing to the other thread, if I can find it, I will post in here for you.

 

D50

[vint1954]

Vint urgent assistance required, had two further letters from MBNa stating this is at final stage, phone calls again for husband - the MBNA man asked me to listen for a second so that my husband is aware that he is being defaulted at the end of Dec. They are prepared to have a "partial" settlement of £5k (25% - please do not look so horrified at the total - my shame is great!!!)- he siad that they have sent everything they are supposed to according to the OFT and that the Application Forms are the agreements for MBNA and the default is registered for 6 years etc. I said that a partial settlement was not satisfactory as I have not seen any proper CCA from them and that with a partial settlement it opens doors to other debt companies buying the remainder - he said that they have to refer it as "partial" but it will be in writing that no other third party of thermselves will collect the remainder - he is sending this offer in the post so that I have a copy. What advice can anyone suggest!!! - Obviously Ii know the decision is ours but really would appreciate other views.

Well, if they are offering you a settlement of 5k against a 20k ballance, they know that they are in the Poo. It is VITAL that any settlement is full and final. Partial settlements are open to be sold, no matter what they say, so another DCA further down the line can chace for the ballance.

 

Lets see what the letter says when it arrives and we can form a response, if you have the funds to cover their offer and that is the way you are happy to go.

 

Vint

[vint1954]

Hi LB,

 

Well if I or a 'third party' had the funds to get rid of them. Personally, I would initially make a counter offer of 20% or even lower. I have recently read a thread where they also removed all information from the CRA's as well, which would certainly be worth getting.

 

Pretty sure I am subbing to the other thread, if I can find it, I will post in here for you.

 

D50

That is why the response needs to be worded correctly.

[Dotty50]

Hi LB,

 

 

Pretty sure I am subbing to the other thread, if I can find it, I will post in here for you.

 

D50

 

Sorry LB searched for the post and I just can't find it! It's really annoying me as I was sure I had subbed to the thread where I had read it.

[bobinky]

My wifes had the same letter,I didnt think they were supposed to encourage you to get into more debt and its carefully worded so they can deny they are but considering in my case they have ignored a CCA and a SAR and passed the debt to a DDA to collect whilst under dispute it seems they can just ignore all laws.

[vint1954]

Hello LB145

 

To be honest I'm gobsmacked at the content of the letter you received from MBNA. This is almost as bad as the Optima "Notice of Legal Action".

 

I quote

 

"Given your current situation raising these funds may be difficult but have you considered the following

 

1. Requesting assistance from relatives and/or friends.

 

2. Remortgaging your property which may release equity to pay off your creditors"

 

Unbelievable! The opening line is their acknowledgment that your circumstances prevent you from paying money they think is due to them and THEN they have the CHEEK to ask you to go cap in hand to your family and friends. I'm honestly rendered speechless at this..... This strikes me as the language of back street loan sharks!

 

.... then if this is not bad enough they "suggest" that you get ever further in hock and for a longer period and put the roof over your head at risk by remortgaging whilst acknowledging that you may be in difficulties...

 

This is terrible and should be jumped on.

 

I am not absolutely certain about this but I have a feeling that their suggestion that you remortgage could be illegal as it could potentially be classed as being advice which should only be given by an IFA. I think that somebody will have to check this but it's in the back of my mind that they should have stressed in their letter that you should take Independant Financial Advice before taking any decision.

 

I personally would check out the FSA website (I have not got the time at present) or maybe somebody on here might even be an IFA and could advise on the legality of such a suggestion.

 

The first link on letter 3 has to be the best

" Remortgage your house "

It is illegal as OFT and FSA regulations. They just don't care.