MBNA cca recieved,3 months late.Is there any action i can take?,advice please.

[ssshooter]

I sent my cca request (below A) by recorded delivery with a postal order for £1.00 to MBNA credit cards on 30th March 09.

When they failed to reply within the 12 days i then sent them the THIS ACCOUNT IS IN DISPUTE letter (below B),again sent by recorded delivery on 28th April 09.

 

 

I have now recieved the cca,which arrived on 19th June 09.Everything looks pretty much in order,as it contains all the relevant details & is the original.What i would like to know is can i do anything about the length of time that it took MBNA to respond to my requests? Advice please.

 

 

 

 

 

A;

 

 

 

.30.03.2009

 

Dear Sir/Madam,

 

Consumer Credit Act 1974

 

As per sections 77-79 of the above act, I hereby request a signed True Copy of the Original Executed Agreement for the above account number.

 

By law, you must comply with this request within 12 working days of having received it.

 

The statutory fee of £1.00 is required to be paid for this information, and I have enclosed a £1.00 Postal Order.

 

In responding to my request to supply a True Copy of the Original Executed Agreement, you must also provide any and all documents referred to in it. Where this may include Terms and Conditions as varied, I hereby specifically request a clearly readable and True Copy of the entire inception Terms and Conditions which form the original agreement, and all variations to them since.

 

Your obligations also extend to a signed statement of account.

 

I understand a copy of our credit agreement should be supplied within 12 working days.

 

I understand that under the Consumer Credit Act creditors are unable to neither enforce an agreement, increase any alleged indebtedness, nor disclose any information regarding me to any third part, until such time you fully comply with my request for a copy of the agreement under these sections of the Act.

 

If you are unable to supply a True Copy of the Original Executed Agreement and all documents therein (and specifically the inception Terms and Conditions), I would be grateful if you would confirm this in your response within the 12 working days allowed.

 

This communication has been sent Recorded Delivery so I can ensure compliance on these issues within the legislative timeframes.

 

I would appreciate your due diligence in this matter.

 

 

Yours Sincerely

XXXX

 

B;

28 – 04 - 2009

 

 

Dear Sir/Madam

 

I DO NOT ACKNOWLEDGE ANY DEBT

 

ACCOUNT IN DISPUTE : xxxxxxxxx

 

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 30-03-2009 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8 (which was sent to yourselves by recorded delivery). 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 is now in default as of 17-04-2009

 

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,

xxxxxxxxxxxxx

[lozzzy]

Sorry i cant help but just subcribing!

[cerberusalert]

I have now recieved the cca,which arrived on 19th June 09.Everything looks pretty much in order,as it contains all the relevant details & is the original.What i would like to know is can i do anything about the length of time that it took MBNA to respond to my requests? Advice please.

Up until May last year if they failed to provide a CCA within 30 days after the initial 12 working days they would have committed an offence, but unfortunately that particular section of the Act has been removed.

[ssshooter]

so would you advise me to continue paying the debt?,as i said everything looks in order on the agreement,maybe it would help if i uploaded the agreement,see what you think?

 

Also if this is the case,that of last year that particular 12 day/30 day rule no longer applies,then why does this site advise us to send for the cca with referance to the 12 day clause?

[Dinkjames]

The 12 days still apply, but the 30 day rule causing a criminal offence was removed.

 

The only thing you could query with MBNA is whether they added charges and interest to the account between the lapse of the 12 days and when they produced the agreement. During this time, the account would have been in dispute and they cannot add charges or interest. Other than that, they have complied and the account is no longer in dispute.

 

Regarding payment, only you can make that decision. If they have an enforceable agreement, they will come after you and if it goes to court, you would in all likelyhood lose.

[ssshooter]

ok thanks,looks like i'm stuck with this one then?,i will post the agreement up later when i get home from work,if you could take a look it would be much appreciated.

[ssshooter]

sorry,but i don't understand...if the 12 day rule still applies & they send me the cca 3 months later,& then you say the 30 day rule no longer applies,how can the 12 day rule still apply?,because basically i am sending for a cca within the 12 day rule,but what you are saying is they can send me the cca in whatever time scale they like?, & there is nothing i can do about it?....confused

[cerberusalert]

The 12 day rule remains but the extra 30 days in which they committed an offence has been removed. It just means you can dispute their claim if they don't comply but they no longer commit an offence.

[ssshooter]

ok,thanks.Basically means the 12 day rule is totally pointless then?

[diddydicky]

no not really what it means is that they cant add charges or interest for the time that they were in defualt

 

now, it seems to me that if you stop paying and let them default you there is a fair bet the DN will have charges for the period when they werent allowed to make them and BINGO defective DN

[nicklea]

no not really what it means is that they cant add charges or interest for the time that they were in defualt

 

A lot of people keep saying this but there is absolutely nothing in the Act to support this and there is no case law for this either

 

now, it seems to me that if you stop paying and let them default you there is a fair bet the DN will have charges for the period when they werent allowed to make them and BINGO defective DN

 

That is a very high risk strategy. Firstly, there is no basis (I believe) for your assertion that default charges cannot be applied. Secondly, for those charges that have been applied that could be argued to be unfair, the op would have to be very confident in arguing his case and be fully conversant with the law on penalties and the UTCCR

[diddydicky]

A lot of people keep saying this but there is absolutely nothing in the Act to support this and there is no case law for this either

 

 

 

That is a very high risk strategy. Firstly, there is no basis (I believe) for your assertion that default charges cannot be applied. Secondly, for those charges that have been applied that could be argued to be unfair, the op would have to be very confident in arguing his case and be fully conversant with the law on penalties and the UTCCR

 

then you need to re read the act

[diddydicky]

78. Duty to give information to debtor under running-account credit agreement. — (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the state of the account, and

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

©

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

[F2(4A) Regulations may require a statement under subsection (4) to contain also information in the prescribed terms about the consequences of the debtor—

(a)

failing to make payments as required by the agreement; or

(b)

only making payments of a prescribed description in prescribed circumstances.]

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a)

he is not entitled, while the default continues, to enforce the agreement;

 

 

 

in this context "enforce" does not IMO mean that he cant send a debt collector it means that he cannot enforce any of the terms of the agreement.)

 

(which includes terms that require interest to be paid)

 

IMO in a nutshell what the act is saying is that if you cannot show the debtor on request under s78 that the agreement is a valid one within a reasonable amount of time then it will be taken that there is no valid agreement until such time as you show that there is

[nicklea]

in this context "enforce" does not IMO mean that he cant send a debt collector it means that he cannot enforce any of the terms of the agreement.)

 

In your opinion it does not. Although there is much that is flawed in the Rankine case, if you have a read of it you will find a difference of opinion there.

 

In my opinion, which I would suggest is equally as valid as yours, in this context the word enforce means cannot be enforced through the courts.

 

 

IMO in a nutshell what the act is saying is that if you cannot show the debtor on request under s78 that the agreement is a valid one within a reasonable amount of time then it will be taken that there is no valid agreement until such time as you show that there is

 

In this case the creditor has provided a valid agreement which states that payments must be made every month (or whatever) and if the OP has not done so for any period then the creditor is quite rightly entitled to enforce his right to receive those missing payments

[diddydicky]

In your opinion it does not. Although there is much that is flawed in the Rankine case, if you have a read of it you will find a difference of opinion there.

 

In my opinion, which I would suggest is equally as valid as yours, in this context the word enforce means cannot be enforced through the courts.

 

 

 

 

In this case the creditor has provided a valid agreement which states that payments must be made every month (or whatever) and if the OP has not done so for any period then the creditor is quite rightly entitled to enforce his right to receive those missing payments

 

calm down matey this forum is all about giving advice and learning from others, don' start get personal you wil just drive well meaning people away from the threads

[squidward]

H Guys

 

Just subbing .......with interest!

 

I put my MBNA account into dispute and after the 12+2 days and when I didn't receive my CCA and I stopped paying. well 2 months down the line MBNA pop up with an enforceable agreement. During the dispute period they have applied charges and interest to the account, which I understand they shouldn't have done IMHO. I feel the best way forward is to Subject Action Request them and reclaim the charges and Interest as this could add up to a nice little sum!

 

Isn't this below what the Card company should do?

 

* 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 read this as the Creditor cannot enforce any of the above until a valid CCA is supplied.

 

Only my thoughts!

 

Squidward

[diddydicky]

H Guys

 

Just subbing .......with interest!

 

I put my MBNA account into dispute and after the 12+2 days and when I didn't receive my CCA and I stopped paying. well 2 months down the line MBNA pop up with an enforceable agreement. During the dispute period they have applied charges and interest to the account, which I understand they shouldn't have done IMHO. I feel the best way forward is to Subject Action Request them and reclaim the charges and Interest as this could add up to a nice little sum!

 

Isn't this below what the Card company should do?

 

* 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 read this as the Creditor cannot enforce any of the above until a valid CCA is supplied.

 

Only my thoughts!

 

Squidward

 

thats the one

[nicklea]

calm down matey this forum is all about giving advice and learning from others, don' start get personal you wil just drive well meaning people away from the threads

 

I'm not getting personal at all. I'm simply explaining that what you are suggesting is, in my opinion, a high risk strategy to take.

 

It is quite open to the op to take your advice but they should be aware of the risks.

 

In this case, it would help if the op would post up the original agreement as not all mbna agreements are compliant, however they're usually spot on with the default notices

[diddydicky]

agreed

[ssshooter]

Here is the agreement & also a letter off MBNA that came with it,also i have posted their terms & conditions (attached here & on post below).

Sorry it took me longer to do than i originally said,had to buy a new scanner as my old one packed up.

Edited June 29, 2009 by ssshooter

[ssshooter]

Thanks,any feedback would be appreciated.

Edited June 29, 2009 by ssshooter

[nicklea]

hi shooter,

 

These are .docx files and I'm afraid that I can't open them. Maybe if you saved them as .doc files instead?

 

or perhaps as jpegs?

[ssshooter]

hi shooter,

 

These are .docx files and I'm afraid that I can't open them. Maybe if you saved them as .doc files instead?

 

or perhaps as jpegs?

 

Sorry,i have now changed them to a jpeg,hopefully you should be able to open them now.(still trying to work out this new scanner,thanks for being patient).

[Dinkjames]

SSShooter. what they have sent you is not an enforceable agreement, it is an application form for a credit card and the document you have contains none of the prescribed terms ie

 

a) Credit limit or how one will be determined

b) Frequency or how much repayments will be

c) There is no mention of interest rates

 

So, they couldn't take that document to court and get a court order to make you pay.

 

Read Steven4064 guide to enforceability here http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html#post1747746

[cerberusalert]

It's not even an application form, all they have sent are the T&Cs. Send the muppets this;

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. The items you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. It neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until XX/XX/2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

Print name do not sign

 

**amend to suit your circumstances.**