abbey/mbna trying to put pressure on!!!

[vint1954]

If it is indeed an origional, then it would be enforceable. However, this company ar known for being:rolleyes: creative with their documents. This looks like the application part has been reduced to allow for the terms on the left.

 

There are also too many date and printer codes on the bottom. Application is date coded 11.01 terms are date coded 11.02, a year appart. Draw your own concusions from that. This is now the document that they would have to rely on in court. They will need to produce the original to this creation.

[vint1954]

Have you put the account in dispute an are you able to keep up repayments?

[vint1954]

Try,

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account.

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 reconstructed illegible front page to an application form and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed and a set of again unrelated terms and conditions. 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.
  

What is a true copy:

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.

[vint1954]

wow, thanks vint,

looks like that will give them something to think about.

couple of things though,

should i fire off this letter before i S.A.R them?

 

Yes

 

should i omit the accusation that they have 'reconstructed'

 

No

 

the agreement, thus showing my hand at this stage?

both you and me know that this was more than likely 'butchers job'.

should i give them a bit more rope to 'hang' themselves.

 

Yes put your letter in place. They will ignore it, but you have responded.

 

at the momment i feel that the agreement would fall down on illegibility

alone.so we need to know what they might send next, In all prbability, nothing but threats hence my letter

to them requesting they send a copy that is legible.

i know that from this site, if they pass this account on whilst in dispute

they commit an offence(that wont bother them though).

any letters from dca will be batted back to them.

 

Letters from DCA's should prompt a bemused letter from you. Cross that bridge when we come to it.

 

have you dealt with mbna before?

i do appriciate you taking the time to respond

thank you vint:)

Vint

[vint1954]

No problem, best to question things, then you are sure.

[vint1954]

Make it an official complaint.

 

Obviously keep quiet about the DN at present.

[vint1954]

To MBNA, just head it official complaint.

 

You are complaining about the fact they have issued a DN, while in dispute and issued a reconstructed agreement not a true copy.

[vint1954]

hi vint,

would that not alert them to the fact

their DN is faulty and they would defer

ttermination of account.

ty

No, Don't alert them to the fact that the notice is faulty. They tend not to default accounts, just sell them on.

[vint1954]

which is the same as termination of account.

if i am correctly informed.

ty

Yes

[vint1954]

letter

For Experto.

 

 

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 company or Original Creditor 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 an illegible reconstructed agreement, that could not be linked to any agreement that MBNA claim that I have signed. 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.

 

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.

 

In addition, MBNA have unlawfully rescinded this alleged agreement, which has been accepted by me.

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be considered vexatious and unlawful. The Court's attention will drawn to the above statutory breaches.

 

 

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

• 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.
  

MBNA have, by selling this account that remains in serious dispute and has been unlawfully rescinded, obviously chosen to ignore my lawful dispute.

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]

welcome to the thread pumpytums.

 

no, you didnt miss it. i have no idea what my original

limit was. as you can see it does not state on agreement

amount,but 1a states "we will advise you of your creditlimit"

tbh i am not worried about the original blue peter

agreement.

have read your thread as it is similar to mine.

dca have changed the last 9 digits of my acc no. They will need to use the original account number. You do not have an agreement with Experto.

any thoughts on

a- dn not compliant

b- sold to dca before remedy date.

 

Unlawful rescission.

c- change of acc number.

 

See above

d-illegible agreement.

 

Previously delt with

e-paragraph 8f on original agreement? as

 

Further data to eventually use if required.

 

stated on dn.original agreement only numbered to3b.

thanks for looking and good luck in your own battles.

Varde are Irish. They have no UK licence so cannot bring proceedings.

[vint1954]

vint,

fantastic input once again.

have read many of your contributions on

other threads.

sterling work and apprieciated by us all.

i will send letter to Experto.

Is it in my interest to get any/all DCAs

to return account back to original creditor at all

times?

thank you.

Yes, just part of the ongoing game that they play.

 

If they have sold it to Experto on a non return deal, then foolish Experto. They may realise that they have nowhere to go and close the account. You can but hope.

[vint1954]

the lastest letter from MBNA.

any thoughts on this??

sorry but i uploaded files in wrong order

2nd one to be read 1st.

The latest tripe that they are trying to peddle. Notice they have stopped signing letters.

[vint1954]

Just go back to them with a bemused letter referring them to your previous letter in post #12. Enclose a copy of this letter.

 

Strange MBNA have responded if they have sold it to Varde.

[vint1954]

what do you mean by lack of

signature.... is this significant?

 

Well, the letter is from no one person in particular. Not sure how important it is, but I thought there was something about it in the companies act.

 

will send a bemused letter tomorrow ty

left arm/right arm syndrome i guess:D

 

Ok

[vint1954]

A few bits that may be useful syd, that I have collected from other threads over the monts.

From Rhia on MBNA

This was one of a number of CAG cases involving MBNA and Cabot. When they were pushed to disclose the original deed of assignment under court proceedings it turned out the debts had been assigned offshore via MBNA in Dublin and were subject to Irish law and not UK.

 

Cabot tried to say it was an isolated mistake but when other cases involving CAGers were brought in as evidence their case became very shaky indeed and they backed off.

 

It seems they don't pay stamp duty/VAT this way - that only becomes payable once they collect on the debt.

 

MBNA has 'previous' for VAT avoidance and were involved in an infamous case with the VAT man which went all the way to the High Court and (I think) the Lords and they lost, costing them millions.

 

Needless to say the VAT man was informed of the Irish agreements.

Hi MKM...

 

This has a whole lot to do with securitisation and the US fims like MBNA and Cap1 virtually invented the whole sorry mess.

 

Really they create money out of thin air don't they by offering youa credit card at high rates of interest. It doesn't take long before the capital you have borrowed has been paid back and it's just interest on interest.

 

However this is then securitised to a hedge fund or offshore and so the OC has now got rid of the liability for your debt and acts as the handling agent. The fun begins when you get into difficulties.

 

Instead of offering any real help they just ambush you with template letters and non-stop phone calls whilst bumping up the interest under what they call a universal default (the computer says you're in difficulties and likely to default so they raise the interest rate!!!???).

 

There's more to this than just seeming incompetence as they are boosting the outstanding debt so that when they sell it off to a DCA such as Cabot this inflated "loss" is then written off to tax (and possibly indemnity insurance).

 

Cabot then buys at as little as 10pence in the £ and attempts to recoup the lot AND add their own unsubstantiated interest charges to boot. If they assign offshore (and it's by no means clear that they all are but my guess is likely) then they don't pay VAT on the bundle of debts they have bought - only when they recoup the debt. This saves them a packet as many debts must be irrecoverable and they wouldn't want to have to pay VAT on something worthless.

 

The whole thing is one international Ponzi scheme aimed at making huge fortunes on the backs of ordinary folk whilst paying as little tax as possible.

 

My advice to anyone is try and avoid borrowing as much as possible - most of us need mortgages to buy a house but avoid anything else if you can or at least check the small print and make sure it's a decent rate of interest. And just don't touch credit cards with a ten foot barge pole.

 

I am speaking from experience here.

BTW you need to request the Deed of Assignment NOT the NoA. The latter is just a letter saying it has been assigned and is usually issued in the UK but I doubt it would matter where it was sent from (though may well be wrong).

 

Try a part 31.14 request for a copy. Cabot will squeal and squeal and squeal!

 

OK now MBNA were also Subject Access Request'd re this deed of assignment or sales agreement and they never ever supplied it and stated they didn't have to as it was senstive information (my ass)

 

At the time we were unaware of a way of getting this as well as requesting in a Subject Access Request (and by all means request it via data protection laws). You can use the Part 31.14 request under the Court Protocol Rules. Take a look in Legal Issues in the DCA section and surfaceagentx20 has created a sticky:

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

 

This shows you how to take action to get information they don't wish to reveal. If they don't comply it does mean you taking out an injunction but it should do the trick.

 

Make sure re the Subject Access Request that you ask specifically for it. Also if you are already in court proceedings you can ask for this info under a Part18 application.

 

If they don't supply the info under the Subject Access Request within 40 days report them to the Information Commissioner and again specify exactly what you want from MBNA.

 

 

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part31.htm#IDAVVI5B

 

With regards to the notice of assignment.... It should be delivered by recorded/special delivery and signed for. If this is not done and the assignor takes an individual to court they have no proof that the debtor is aware of the assignment and therefore have no legal right to take the individual to court.... Law of Property act.1925

 

If you acknowledge an assignment that has been sent then you can only rely on whether the date of assignment is correct and or also the amount that is quoted on it... The Notice of Assignment is an extremely important document and is often an excellent weapon in court.

*********************************************************

[vint1954]

thank you Vint,

i will need to read that through a few times

to get it to sink in.

i understand the part about tax and vat.

have read about it on other threads.

"securitisation", however seems to be going over

my head a bit:rolleyes:

 

Just light reading syd:D

Securitization is where the creditor sells the account ( while live and OK ) to a third party, but not as an assignment as we know it. The third party gives the OC the funds for your account and the OC administers it for them. If they are offshore, they cannot hold a credit licence in the UK, so cannot collect on the debt themselves.

I was thinking last night that the latest letter i

posted up was more than likely a response to a

previous letter sent claiming that they should

send me a legible copy of agreement(sent10th sept)

looking at the timescale they have yet to reply to

letter sent in post12.

Thats probably right syd.

[vint1954]

Just respond acknowledging their letter, and confirming that the accound is on hold until they provide credible documentation.

[vint1954]

Send this request including the £10 fee to the address which your bank has registered with the Data Protection Commissioner as the address of the Data Controller:-

Information Commissioners - Data Protection Public Register

(new address: Information Commissioners - Data Protection Public Register)

 

*PLEASE NOTE - Template letters from our Library should not be reproduced on the open forums. If you would like to let people know the wording of your letters simply link to the Letter in question.*

 

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/110--data-protection-act-1998-subject-access-request

[vint1954]

thanks once again Vint,

this is the link i was refering to,i cant read all of the

text down the right hand side.

i did copy and paste a similar request which i was going to

send, but i cant locate it:???:

was hoping someone had a copy so i dont foul up the request.

have been reading the thread on Invalid default notices, and

the importance of accepting unlawfal recision by letter.

to sum up, my case,

invalid d/n

account sold before rectification date

demand for full balance.

letter from me to them accepting unlawfal recision.

 

just think now would be a good time to get SAR sent off

to confirm,actions and dates.

The template letters are not supposed to be posted on open forum.

 

I will copy it and send in PM.

 

Vint

[vint1954]

Done

[vint1954]

albeit a burnt out one