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HP Mum

HP Mum v MBNA

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I wish to take on MBNA :) about my credit card debt and need some helpful advice please...

 

I have all my statements from start point in May 05 and I think I have the Agreement too, but am unsure as the one sheet I have is the one that had the card attached to it and has a line half way down the page with the CCA 74 t&cs below the line.

(I think I originally replied to a freebie through the door and they then just sent me the card.)

 

Put simply, my circumstances changed a few years ago. At the end of last year I just could not afford the high monthly payments anymore. I had tried to keep everyone happy but ended up with huge arrears to the one bank that really mattered - the one with my mortgage :(. I wrote and explained my situation to the credit card/loan companies, had the standard replies most people seem to get, then got passed on to dcas. Then I got inundated with harassing phonecalls - which I either never answered or just calmly explained my situation and wouldnt give in to their harassment til they hung up !!

I composed letters to each dca offering small amounts monthly. They all agreed and I have spent a few months this year breathing again. But having just discovered this site.... now I am wondering if my mbna debt is enforceable anyway. I have read and read and read these last few days and now my head is spinning.....

 

So can someone please tell me how I work out if my Mbna Agreement is enforceable ?

And if there is a chance it is not, then what I have to do ? Do I have to write asking for a true copy of the cca (as per the template on this site) ?

 

Mbna has already passed on my account to Link Financial.

 

I await to hear back from some of you geniuses ;-)

Thanks.

Edited by HP Mum

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Guest Old_andrew2018

You could up load the agreement you have using photobucket, please remove any personal information, you will quickly receive advice.

Were any penalty charges levied on your MBNA account?

 

Andy

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how do I use photobucket ?

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mbna agreement.jpg

 

I hope I have managed to attach my mbna Agreement. If it is an Agreement.

 

Is this enforceable ?

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Guest Old_andrew2018

Try using the upload link on photo bucket for message boards without the thumbnails option as suggested by postggj

Andy

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does this mean I set up an account with photobucket and then people can view my attachments there ?

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mbnaagreement.jpg

I cant seem to get this right !! How do I get it bigger for everyone to see ?

Edited by HP Mum

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Please - someone .... How do I use photobucket and get it large enough for others to read and then advise me ???

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I have, I think, figured out photobucket and put the link to the album above.

Can someone please advise on if my account with mbna is enforceable ?

And if not, what do I do now ?

thanks

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Can someone advise if this MBNA Agreement (below on Photobucket link) is enforceable ?

It was taken out in May 2005.

One page document, front and back details.

 

I have had loads of letters from LINK Financial, agreed to pay them a nominal amount against mbna debt, but stopped paying them in July. Am worried now that I will get a Claim form through soon for repayment of the whole debt. Want to pre-empt that by either sending request pursuant to S.78 of CCA 74 or a CPR 31.16 request.

 

Please help.

 

http://i841.photobucket.com/albums/z...um/mbnacca.jpg

 

http://i841.photobucket.com/albums/z...cabackpage.jpg

 

Thanks in advance.

user_online.gifreputation.gif report.gif progress.gif

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All the prescribed terms are there.

 

However, I'm struggling to see where you may have signed this document.

 

Without your signature, it would be unenforceable.

Edited by supasnooper
missed out some info

 

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Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

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Thanks Supa,

The only place to sign is on the reverse page in the bottom right, "Cancellation Form" - only sign this if you wish to cancel this agreement..."

 

If I remember rightly I got a form in the post offering me this card - like the normal junk mail kind of offers that pop through the door. In this instance I think I filled in the application form and waited for their reply. I may even have spoken to them on the phone, but I can't remember. But I did then suddenly get the card with a credit limit of £12,500 ! I was struggling financially at the time so I remember I was pretty surprised that they gave it to me !!

 

So what do I do ?

I have started reading PTs thread on NOT doing the S78 route but with 84 pages it is a bit too long to read all of it !! And now I understand that it is possible to pre-empt a Claim by sending in a CPR 31.16 request.

I am confused.

Do I send in a SAR ? A CPR 31.16 ? Or S.78 ?

 

Does anyone know ?

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Lets back track here.

The agreement you've posted up is a copy that you have kept ( and would not be required to sign) but what do MBNA have ?

 

You'll need to send a CCA request to Link as they are now dealing with the account.

 

Have a look at letter 8 - The Consumer Forums - Debt collectors

 

I would advise that you re-read pt2537's thread, as it may be worthwhile pursuing this route to ensure that MBNA don't have a valid CCA


 

Help us to keep on helping.

Please consider making a donation, however small, if you have benefited from advice on the forums.

This site is run solely on donations.

 

You can make a donation

HERE. Thank you.

 

Any advice & opinions given by supasnooper are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability.

Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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I went to the Post Office before I read your post :(.

I have sent the S.78 request for CCA by special to Link today.

I was intrigued too that the post office added a 50% charge for a £1 postal order....

 

I will go back to PT's thread to see if that throws up my next course of action, ie sending in the CPR 31.16 too...

 

I'm not sure what mbna will have.... Fingers crossed, nothing !

Do they have 12+2 days to reply to me from date of posting or receipt ?

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I just realised ONE month has passed and MBNA have not replied.

 

So what do I do now ??

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This is what I sent to the dca (Link) handling my MBNA account:

"This letter is a formal request pursuant to s.78 (1) of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request; the provisions of s.78 (6) will apply.

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

Your attention is drawn to ss.5 (2), 3(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee."

 

I have heard nothing back from Link or MBNA since sending this on 17 Nov.

Should I now send in a CPR 31.16 letter ??

 

Please can someone advise best route to take now ???

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Hi Hp Mum,

I would also send a SAR to MBN@ it will cost £10 but they generally do send the information. I have never received my CCA request from MBN@ but it did turn up in the SAR.

 

The documents you posted up look like a card carrier, nothing more.

 

Hope this helps

 

Pumpytums

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Hi HP mum,

 

If I am reading this correctly, the form that you have posted above, is just the card carrier. Do not confuse this with a credit agreement. The agreement will be something that you have signed before the card arrived.

 

If MBNA have sold this to link, they will need to have defaulted you. Can you let us know the date of the default Notice and the date for rectification. Also if the amount mentioned in the DN is just the arrears or the full ballance. Helpful if you kept the envelope also. They or Link then need to issue you with a notice of assignment, advising you that Link now own the debt.

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Thanks for responding Vint.

 

I was defaulted on 9 Jan 09.

 

The DN asked me to pay arrears only, by a certain date - 26/01/09.

 

Link wrote to me 30 Jan 09 saying they were the current owner of the whole debt.

 

The balance Link has quoted is huge. It includes all sorts of charges that I had disputed with MBNA which had taken me well over my limit.

 

I made Link an offer of tiny monthly payments, which I kept to for a bit and then stopped in August.

 

I sent Link a S.78 request 17/11/09.

Link has not replied.

 

I have all paperwork dating back to start of card but no agreement, only this card carrier doc.

 

So what do you think is the next step for me ?

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Thanks for responding Vint.

 

I was defaulted on 9 Jan 09.

 

The DN asked me to pay arrears only, by a certain date - 26/01/09.

 

Link wrote to me 30 Jan 09 saying they were the current owner of the whole debt.

 

The balance Link has quoted is huge. It includes all sorts of charges that I had disputed with MBNA which had taken me well over my limit.

 

I made Link an offer of tiny monthly payments, which I kept to for a bit and then stopped in August.

 

I sent Link a S.78 request 17/11/09.

Link has not replied.

 

I have all paperwork dating back to start of card but no agreement, only this card carrier doc.

 

So what do you think is the next step for me ?

Well they are in a pickle here. Looks like your luck with Halifax will follow you for a while. Cany you give me some numbers for this weeks lottery:D

 

The DN is completely useless to them, especially if you kept the envelope. They use UK Mail s which is second class, so 4 days for service. If you did not keep the envelope, they would need to prove how it was served.

 

So the DN dated 9th January, which is a friday, would be deemed to be served 4 working days after posting, so 15th January 2009. The date to rectify by should be +14 days, so 29th January 2009. They did not allow you the required time to rectify the default, so by terminating the agreement ( selling to Link ) they have unlawfully rescinded the agreement.

 

I will put something together for you to look at.

 

Also check the screenshots in your SAR for the date that it was sold to Link.

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Thanks for responding Vint.

 

I was defaulted on 9 Jan 09.

 

The DN asked me to pay arrears only, by a certain date - 26/01/09.

 

Link wrote to me 30 Jan 09 saying they were the current owner of the whole debt.

 

The balance Link has quoted is huge. It includes all sorts of charges that I had disputed with MBNA which had taken me well over my limit.

 

I made Link an offer of tiny monthly payments, which I kept to for a bit and then stopped in August.

 

I sent Link a S.78 request 17/11/09.

Link has not replied.

 

I have all paperwork dating back to start of card but no agreement, only this card carrier doc.

 

So what do you think is the next step for me ?

Hello HP

I don't think you need to anything except maybe write to both companies telling them they are in breach of CCA rules and you will not pay until they comply. How old is this agreement by the way?

john

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Hi HP Mum, Try this letter.

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

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

Further to my numerous frustrated requests under s 78 of the Consumer Credit Act 1974, to both MBNA and Link, 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 MBNA 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. On xxxxxxx I made the same legal request to your organisation. Again a copy of this request to you is enclosed. To date both MBNA and Link have failed to comply with my request and the law, supplying no documents whatsoever and ignoring this legal request.

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.

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 MBNA and now Link 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.

So you will understand from the above, that Failures by MBNA to supply the required documents under the act, preclude the sale of the agreement to yourselves. The breaches of the relevant laws and regulations by MBNA, are now compounded by your organisations recent communications while the account was legally in dispute with MBNA.

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 Link, 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 unable to supply a compliant copy of the alleged agreement, I would remind you that you are obliged to inform me of that fact. I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

In addition to the above, prior to your involvement in this matter, MBNA have unlawfully rescinded the alleged agreement. This unlawful rescission is fully accepted by me. With reference to s 87 of the CCA 1974, your organisation will be aware of the implications of MBNA’s unlawful actions.

I look forward to your response.

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Johnrog - card dates from May 05.

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Thanks Vint. I will read through this properly and revert back later. Although I never sent s.78 request to MBNA !! Only Link. Would have to tweek it a bit...

 

I guess I need to request SAR to see when MBNA sold it to Link. Should I do that tomorrow, 22nd ??

A nice job for someone over the Christmas holiday period !!

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