Can you 'ave a butchers at this?

[sunflower99]

Thanks for that sunflower it is most helpful.

 

Will be sending the 'can I visit you' letter and see what response I get.

 

gb

Great! That will show them you know your rights !

[sunflower99]

Well i am still officially in dispute with them but since sending a few letters out and having loads of phonecalls and some threatograms from them and their inhouse collection firm debitarse they seem to have gone quiet for the moment and not heard anything since January!

[sunflower99]

Did you send mbna that letter?

[sunflower99]

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

 

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the CCA 74.

 

As **original creditor/DCA** are now in default of my Consumer Credit Act request, Subject Access request and have also breached s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

BLAH

[sunflower99]

Hi djc1

Welcome to the Cag MBNA fan club! MBNA are very slippery characters! LOL as i am sure you have found out since joining CAG!When did you take your MBNA card out.? A lot of their ones before 2005 i think are unenforceable plus there is a belirf on ths site that many of them got shreeded:D Which will give them a headache in court as they can be complelled to bring in original agreement if it gets to court room.

[sunflower99]

Hi sunflower 99,

Yes from what i have read MBNA, do seem to be the worst and i think I'am in for the long haul with them. I have two cards MBNA platinum & MBNA/Abbey, and as if thats wasnt enough a Abbey loan.

The Abbey card is from late 2001, the MBNA before that.

Hi Djc!

Gret news that they are very early ones! probably been completly shreeded and trashed then:D

[sunflower99]

Hi GreatBurden

I agree with you very unlikely that what they are impyng is on that short scrap of paper is on reverse of your application form[i would eat my hat if an agreement from 2001 was correctly executed and actually had those terms on revese! LOL,I believe yours like main is just an application form and those ts and cs not actually on reverse,MBNA are being very crafty as they are implying but not actually saying that page is reverse just by seending it all together,Also someone had it confirmed by MBNA that all the early original agreements were shredded and put on microfilch for customer protection and security!! LOL not possibly the fact that they were trying to save on storage space and none of those agreements were properly executed or legally enforceable in first place!

[sunflower99]

It up to you if you want to leave a bit of a paper trail and wirte another one of those letters asking if what they imply is on reverse is actually on reverse and or tease them a bit by asking if they hold your original alleged agreemnt and if you can make an appointment to view the alledged agreement at their offices! or whether you want to sit tight and see what threat they make next.Everyone is different! I personally quite enjoyed leaving a bit of a paper trail and asking those question! but whether you do write back or not they will proably ignore it! but thought it might be handy to have some letters to show DJ if it ever went to court and I wanted to show i made reasonable efforts to view alledged agreement!

[sunflower99]

Hi Greatburdon

Yes! Thats what I would be inclined to do! write again to them as i love giving em a bit of grief and leaving a paper trail!

[sunflower99]

The microfilch issue is another can of worms.However i am afraid sometimes though they shouldent in the lottery of judges some pro bank judges do try to allow them through which is so unfair and can make it a harder task to figt back ant there have been a lot of discussion on threadsabout this A lot of people have beat em on this issue but some people in the lottery of judges have got a pro bank DJ who very unfairley enforced them

Edited September 13, 2009 by sunflower99

[sunflower99]

If a bank does try to waltz into court with a microfilch copy i read on some threads that the defence to this in any court proceeding and summons and Aq forms is to point out strongly that under Practice Direction 16 Pargraph 7.3 a copy of the original shoud be attached to POC and the original must be brought to court

[sunflower99]

Another intersting point i saw made on another forum was this on the issue of microfilch copies being used as evidence in legal proceedings-If they try and fob you of with getting away with microfilch copy and dont bring original into court my thoughts on this and from reading threads on other forums is that you could point out to DJ these things repectfully!This quote- As i saw on another forum this point was made - A copy birth certificate is unacceptable to obtain a pass port and driving licence.A copy of divorce papers is not acceptable to obtain a passpoert or driving licence ,A copy of land deeds are not acceptable as proof of ownership of land and you cant send a copy of your driving license to prove you passed your test even if you swear on oath to say you have passed it.You must produce the original,So why should this be any different for something as importand as a credit agreement? .It can be argued on this basis that a copy of an agreement is not acceptable as proof of a debt!so this argument can be brought out in court as well and which i will be doing

[sunflower99]

Another useful point i gleaned from this thread was this point that could be made using case law and which i will be using- taken from a thread -Also if you read the Wilson v First Counties Trust it says in this ruling and says specifically " a document" signed by the debtor NOT a "copy" of a document signed by the debtor... and as everyone knows a comma can make a difference to the meaning of a sentence and especially in law and this is very significant.

Quote from Wilson case- IN effect- the crediter - by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms -must (in the light of the provisions in section 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition,or gift , of the loan monies to the debtor,The crediter had chosen to part with the monies in circumstances in which it was never entitled to have them repaid.

The conclusion to be drawn from this quote is case law and consumer law meant - A "Document" signed by the debtor containing all the prescribed terms", not a copy.If you have not got the document you not got an agreement

[sunflower99]

Hi Greatburdon!

Glad to have been of help!

[sunflower99]

Hi Greatburdon

They dont give up do they !I got loads of threatograms from MBNA but in end i ignored them after sending them a few letters saying account in dispute, However in my case MBNA are takeing things to the bitter end! and are determined to reduce me my OH and dog to living in a cardbordbox.Their soliciters Restons have issued prooceedings against me and i have to got and fight a Summary judgement next weeek.However i am getting a lot of help and have hopes that i am going to give em grief!

[sunflower99]

Hi Greatburdon

I was horrified to learn about your friend and the fact that the judge was so biased towards MBNA,and that they ordered your friend to pay £300 costs even though in end DJ acknowledged agreement was not clear enough and claimant instructed to bring in another one in a further hearing ,In some cases i come across on these threads many times the worse that happens is each party ie denfendant and claimant bear their own costs until a concluison and judgrment reached!Your friend was very unlucky as when your your friends DJ realised there were still issues to be addressed about your friends agreement ie not being clear enough he should have at the very least declared that both parties bear their own costs:mad: bearing in mind that obviously whoever wins at end gets taken to cleaners . In a lot of threads MBNA have had to pay some costs to the defendant when first hearing went against the DCA so please take heart it does not always go MBNAs way.Trouble is there is quite a mixed bag of judges and that is why we are always refferring to the Judge lottery in these forums,There are some really biased judges who take a very moral approach and only see that a person owes bank money andd dont look at the bigger picture or even know much about the consumer credit act 1974 and the 1983 credit agreement regulations:mad: on the other hand some people get some lovely judges who are very fair and prepared to look at the law properly and realise that banks do not come up smelling of rose themselves,The problem is when hearings initiated against you there is no way you can know what your DJ is going to be like until you get in that courtroom.DCAs also depend on the fact that many of us in these situations with very bad money problems can not afford proper legal representation and often have to act as LIPs for ourselves which i assume your friend did and not know how to defend ourselves in court properly should we get a difficult judge and not know how to deal with these crediters unfair tactics and court games. So if the defendant got a very unsymphathetic biased pro bank judge they dont stand such a good chance as someone who waltzes in courtroom with a good barrister who is an expert on consumer credit law:mad: and these DCAs know this.Also in the case of solicitor DCAs working for the original crediter such as Restons and optima they are laughing really as whether they do or do not win is beside the point for them as it is not them who get taken to the cleaners and loose money but it will be MBNA that have to pay up both for Restons/optimas legal proffressional fees which i reckon dont come cheap! and would ultimately in normal situations have to pay both Reston/optima court expenses and costs plus the defendants costs as well which if the defendant was acting as a LIP for themselves would be relatively small,It is only when the defendant is able to afford or be in the positon of getting qualified legal help that there is any danger of MBNA being made to pay hefty legal charges in favour of Defandant/soliciters which if MBNA insisted on going to bitter end could cost them thousands of pounds,However as they know the majority of people can not get legal represenation MBNA realise that there is not such a risk of having huge defendants professional solicters fees levied against them!so it is in Restons/optimas iinterests to string things along as far as possible even if case not going well for them as it is MBNA who ultimately has to pay up if Restons/optima loose! not Reston/optima.so these DCA are laughing really when they know the original crediter has to bear all the costs !not them if things go wrong !

Edited September 18, 2009 by sunflower99

[sunflower99]

Summary judgement is a nasty little courtroom game tactic used by Restons DCA solicitors where they try to deny the defendant the right to a proper trial:mad:The hearing is normally only allocated a 40 min to 60 min hearing and the claimant tries to argue t9judge that the defendant has no relistic prospect of wining this case and it is not worth the case going to a proper trial,Restons try this on most of their victims.So in effect i get two ordeals if thingks go ok! I have to convince Judge that my case it is worth bringing forward to a proper full trial amnd i do have some hope of winning it,If i do win summary judgement i then have to go again for a proper trail at a later date if DCA decides not to drop my case and decides to risk it letting case go to a proper full trial .So Restons are trying to deny me my right for a proper trial by issuing this sJ !

[sunflower99]

However thank to CAG and some lovely people helping me with advice and moral support.I have got some hopes of winning ,If it had not been for finding CAG ! me and OH would have felt like throwing ourelves under the nearest bus or truck throwing our MBNA and other DCA threatograms in road with us so they got some bad publicity as well,But dont worry thanks to CAG we got our fight back and not going to let MBNA or other DCAs make our lives a misery anymore:)

[sunflower99]

Sunflower

I could well be in the same boat as you and having never been to court bar jury service i'm as nervous as you like about the potential experience.

But what doesn't kill you,will make you stronger and you need to make a stand or risk getting steamrollered by these financial Institutions.

 

If you go summary judgement you should have a fine chance of getting the result you want and then you'll have learnt a lot in the process,its effectively court room training !

 

Watch the movie The Insider with Russel Crowe,a true story about the philip morris cigarettes whistle blower and take strength from it.

Hi Blueotter and Greatburden

Thanks for your good wishes and moral support.At least in Cag we are not alone and can face all these DCAs throw at us together,I am sure i m going to be alright next week as i am getting a lot of help and support now and thanks to some lovely people i am going to fight back and can quite truthhfully say that Reston/MBNA had a few nasty surprises!when they decided to initiate legal action against me:D

Edited September 18, 2009 by sunflower99

[sunflower99]

Sunflower

I could well be in the same boat as you and having never been to court bar jury service i'm as nervous as you like about the potential experience.

But what doesn't kill you,will make you stronger and you need to make a stand or risk getting steamrollered by these financial Institutions.

 

If you go summary judgement you should have a fine chance of getting the result you want and then you'll have learnt a lot in the process,its effectively court room training !

 

Watch the movie The Insider with Russel Crowe,a true story about the philip morris cigarettes whistle blower and take strength from it.

Hi Blueotter!I will have to hunt that DVD out!Thanks!