URGENT ADVICE SOUGHT - Snookered by MBNA

[ihpj]

** ADVICE **

 

In my own quest of gathering information, I have come across THIS thread that I have found useful and hope others will too!

[supasnooper]

I'd hold back on the CPR letter.

 

This cannot be sent until legal proceedings have commenced.....and Optima would be under no obligation to respond.

[bornrich]

In my own exchange with Optima I think it has sent MBNA a message that they can't use the threat of legal action to scare me into settling.

 

This has resulted in what I can only describe as a different tactic – a 'reasonable' letter requesting I make an offer.

 

Here it is:

a resonable letter from MBNA

 

I'll keep everyone posted as to what happens with the SRA and Optima complaint.

 

Bornrich

[ihpj]

** ADVICE **

 

Some good advice and LOTS of information from the other thread!

 

I have amended my letter and am thinking I should send that to Optimistic Legal as a response. I am tempted to fire it off as an official complaint for them to investigate and respond to because their thread of Charging Order so early on (IE: suggesting it is easy to get) is unacceptable.

 

I'm not sure if I should send it as such to them or simply report them to the Solicitors Regulatory Panel. I'm guessing the SRP will suggest I look to resolve the complaint with Optimistic Legal first and then go to them (SRP) if I remain dis-satisfied.

 

I can see merits of a formal complaint...any thoughts?

[bornrich]

ihpj,

 

the more heat the solicitor gets the better in my opinion. They may then think twice about agreeing to take on the dirty work of a DCA. It's so below them anyhow; they do the profession an injustice.

 

Complaining first to the solicitor is necessary and as you saw from my exchange with Opportunistic Legal their response to my complaint was an undated, unsigned letter denying what they had stated in their first threat-o-gram letter.

 

Which now forms part of my complaint to the regulating body... ho-hum.

 

Bornrich

[ihpj]

...the more heat the solicitor gets the better in my opinion. They may then think twice about agreeing to take on the dirty work of a DCA. It's so below them anyhow; they do the profession an injustice.

 

** ADVICE **

 

I am all for complaining against these firms and for filing complaints. I do not expect that my singular action will have any impact, but if enough people complain, then I think something may be done at point in the future. I am not cowered by any of these Bully Boy tactics - and am happy to hit back.

 

Given the very helpful advice above, I have drafted the following that I invite comment on, to the LCS:

 

----------

 

Dear Legal Complaints Service,

 

RE: Complaint against Optima Legal Services – X

 

I write with regards to the above and wish to file a formal complaint against not only the firm itself but also the named Solicitor.

 

I have in my possession, and enclose herewith, a letter from them clearly stating that:

 

…our client may…commence legal proceedings to obtain a Charging Order against you.

 

I am alarmed by their disregard for the importance of following due process and their grossly exaggerated claim, as to their ability to successfully seek a Charging Order against my property, which is profoundly misleading. As you are aware, when proceedings are issued it is not possible for a Charging Order to be made by the Court prior to a judgment being obtained. I assert that it is impossible for their Client to, “…commence proceedings to obtain a Charging Order against you.” as it is only possible for them to commence proceedings to obtain a judgment and only then secure any judgment debt (but only if judgment is granted) by way of a Charging Order against my interest in my property.

 

It is unacceptable for a firm of Solicitors, regulated as they are by the Solicitors Regulatory Authority, to be throwing around stark threats of this nature in the current economic climate knowing very well that the threat as stated cannot possibly be carried out. I can therefore only conclude that they have suggested such an eventuality, in the first instance, in an attempt to unduly intimidate me – in which case their behaviour is not only morally reprehensible and ethically bankrupt – but also puts them in serious breaching of the Authorities’ Code of Conduct (specifically Rule 1 and 10.1) by virtue of them sending out such a serious threat, knowing that it is not possible to carry it out as directly as suggested.

 

Furthermore, it strikes me that this letter could potentially be a breach of the Malicious Communications Act 1988 as their letter is worded to suggest that the obtaining of a Charging Order will automatically follow the issue of Legal Proceedings; whereas Optima Legal should be well aware that the aim of issuing legal proceedings is to obtain a judgement, which can then be secured by the making of a Charging Order.

 

How can it be said that a Solicitor is acting with integrity when he is putting his name to a threatening letter knowing that the threat contained therein is factually impossible and complex legal process to be navigated before the prospect of a Charging Order is available? How does such conduct advance the true and proper administration of justice and go any way towards maintaining the confidence of the public in, what should be, a squeaky clean profession?

 

This Code of Conduct is not discretionary and lays down very specific and overarching rules that every single Solicitor is committed to adhere to. This includes maintaining the utmost levels of personal integrity, upholding the rule of law and justice and maintenance of public confidence in the legal profession. A Solicitor absolutely cannot engage in conduct which is illegal or unethical which, in my opinion, a blatant breach of a statute carrying the threat of a prison sentence for breach certainly is.

 

I’m astounded at that the content of the letter was approved and even more astonished that a Solicitor of the experience of the signatory should have unquestioningly put his signature on it (the signatory definitely is a solicitor and is a Director of Optima).

 

I therefore ask my complaint be taken on and investigated fully.

 

If I can be of any further assistance, then kindly do not hesitate to contact me.

 

Yours faithfully,

 

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Edited December 12, 2009 by ihpj
Letter Now Amended - Final Draft

[bornrich]

ihpj,

 

Is the letter headed with 'Notice of legal action' as mine was?

 

If so it's definately worth mentioning in para two of your letter.

 

Nice letter – it's motivated me to do mine later today.

 

bornrich

[ihpj]

ihpj,

 

Is the letter headed with 'Notice of legal action' as mine was?

 

If so it's definately worth mentioning in para two of your letter.

 

It is mate, I didn't mention it because I didn't think it was worthy of mention...seeing as I'm sending them a copy of it?

 

Got to thank Langster for his/her contribution as my letter is pretty much built around his/her contribution!

[bornrich]

Ihpj,

 

How's your letter going? I'm starting mine now...

 

Bornrich

[ihpj]

** ADVICE **

 

Letter now amended fully. I am nearly happy with it - might just re-word it a little, but otherwise, thats what I intend to send out Monday to the LCS. Any comments, please let me have them!

[bornrich]

... and here's my update to the SRA which is going out Monday.

 

Page 1

Page 2

 

Thanks to everyone on this thread and in particular Langster. Much obliged.

 

Bornrich.

[pompeyfaith]

Indeed Langster is a gem in the fight with Optima his contribution to this site has been massive in the past few months specially with my case which would have been dead in the water without his knowledge and observations.

 

It is people like him that make this site such a great resource.

 

Regards

 

PF

[ihpj]

** UPDATE **

 

Seeing as we appear to agree that the letters I intend to send appear to be satisfactory; I shall be posting out my dispute letter to Optimistic Legal (Post # 25) and the complaint to the LCS (Post # 33) tomorrow.

[bornrich]

Exchange,

 

I've so many DCAs on my back I haven't documented any harrassment BUT if you think MBNA instructing Optima Legal to send a threatening and malicious letter would help your cause you are more than welcome to electronic copies of all correspondence. The complaint is currently with the Solicitors Regulation Authority so it could add a little clout.

 

PM me if you do.

 

Good luck.

 

Bornrich

[exchange]

Thanks bornrich.

 

I will PM you details.

 

Exchange

[ihpj]

** UPDATE **

 

Letters sent, the one to Optimistic Legal was Recorded. @Whee!

[ihpj]

** UPDATE **

 

Have received an acknowledgement from the SRA - they are looking into my complaint and are waiting to allocate it to one of their Investigators.

 

Also received automated reply from Optimistic Legal in which the simply referred me to their Client.

 

Don't hold out much hope with the SRA - but if enough people complain you never know!

 

However THIS article from the BBC website does raise a few eyebrows.

 

Anyone know where it is being discussed on this site?

[nks22]

However THIS article from the BBC website does raise a few eyebrows.

 

Who to believe, though:

 

"It seems to me to be likely that the number of challenges... will diminish significantly hereafter," said Judge David Waksman.

 

[Cartel Client Review] said that the clarification of the law would "open the floodgates" to many more cases being put forward in 2010.

[ihpj]

** URGENT / ADVICE **

 

Given that MBNA have been the only creditor to come back with something credible in terms of CCA; I have decided to enter into negotiations with them and make a FULL AND FINAL - as I far as I am concerned, should the matter reach Court, the stakes will be too high for me. As such, I wrote to the the following:

 

----------

 

Dear Restons

 

I write further to your letter of and note your offer to settle this matter early at a figure of £X. However, before I can remit payment, I will need assurances to the following:

 

1. This offer is made without prejudice and question of liability to either party.

 

2. This payment will be as full and final settlement of the account.

 

3. Upon safe receipt of cleared funds, you shall, within ten (10) days:

• reduce the account to balance NIL.

• report the account as CLEAR and SATISFIED to the Credit Reference Agencies.

• remove ANY and ALL negative information reported to the Credit Reference Agencies, such as but not strictly limited to, any defaults registered, missed/late payments and overlimits etc. …

• (or agents) make no further attempts to enforce this agreement.

• (or agents) make no further attempts to collect on this account.

 

I look forward to your timely reply.

 

Yours sincerely,

 

----------

[ihpj]

** URGENT / ADVICE **

 

Now what they have come back with is THIS, can someone please take a look and let me know if this is acceptable?

 

What I am after is limiting any damage to my credit file (as far as is reasonably practicable) - but I am not sure that their response goes far enough.

 

Any advice please?

[Redfish]

Wow ihpj - just read your thread, you started off very challenging and now have decided to settle! Was there something that happened in between that made you change your mind? Is it that you desperately want a clean credit record?

 

Did you get a default notice and termination of the account? Have you checked it is not faulty? Your app form is similar in many ways to mine and I now have a no win no fee solicitor who thinks it's unlikely the case can go to trial (Restons issued a claim in court) because of the faulty default notice and enough evidence that the app form is not an enforceable agreement.

 

Restons must be very happy indeed if you are offering to settle!

[nks22]

I'd be interested to know roughly what percentage of the claimed debt you settled at.

[ihpj]

My problem is that I think MBNA do have an enforceable CCA and that the DN they have served is correct. Having done some research on CAG, and in the absence of finding anything to the contrary, I believe if I went to Court, I would loose. So it is a simple case of damage limitation.

 

Reaching settlement of around 55% of the owing amount (that is around £12k - £15k ) I think is a very good deal indeed.

 

I just need them to remove the default in its entirety - as a satisfied default is as bad as a default [from what I have read]...and need to work out a strategy to do so.

 

I have to pick my fights, and this is not one I believe I can win - however if someone can provide cogent arguments/evidence to the contrary, then I will reassess my position.

[Redfish]

My problem is that I think MBNA do have an enforceable CCA and that the DN they have served is correct. Having done some research on CAG, and in the absence of finding anything to the contrary, I believe if I went to Court, I would loose. So it is a simple case of damage limitation.

 

Reaching settlement of around 55% of the owing amount (that is around £12k - £15k ) I think is a very good deal indeed.

 

I just need them to remove the default in its entirety - as a satisfied default is as bad as a default [from what I have read]...and need to work out a strategy to do so.

 

I have to pick my fights, and this is not one I believe I can win - however if someone can provide cogent arguments/evidence to the contrary, then I will reassess my position.

 

Ok ihpj, I haven't seen your default notice, but I see you already know and have argued that the terms on the back of your application form do not match the front - condition 11, for example. Most probably your DN takes it's legitimacy from a para 8 (as mine does) of your agreement in regards to payment of arrears, but para 8 on your 'agreement' does not refer to arrears at all but something entirely different. In which case the DN does not relate to the 'agreement' and could therefore be seen as faulty. Most probably they have sent you current T&Cs which do match the DN but don't match the numbering of the terms on the 'agreement'. It would be hard for MBNA to prove that the current terms, the terms on the back and the DN were actually all related to the application form. So far I have searched but not seen a case on this forum with such an application form (and pasted terms to make it appear like an agreement) where MBNA has succeeded in producing the original.

 

However, I can see you have already done your homework on this and if you have come to the conclusion that it is better for you to settle then I'm sure you know what you are doing.

 

Best of luck.

[banker_rhymes_with]

Hello ihpj!

 

Before paying them anything, I would spend a long weekend going through everything.

 

Check the basics, and don't overlook anything, even things that you thought were of no use to you.

 

Check things like Interest Rates or Minimum Payments, were the figures correct? If they have overcharged you, say, the minimum Payment, then that could rat up their s87(1) Default Notice figures.

 

MBNA have a habit of making many mistakes, so keep looking and re-examine everything. Something tasty may pop out that you were overlooking!

 

Cheers,

BRW