MBNA CCA - Is it legal?

[BornAgainBiker]

Hi, like nks and others i had no cca from mbna and the debt has been sold to dlc.

I’ve seen another thread where circumstances are similar, but it seems the advice is to tell the dca to 'whistle' on the basis of no cca. Would this not be the correct ‘tack’ as opposed to stressing over whether or not any subsequent dn was faulty and or the account unlawfully rescinded.

If the above were the case, surely we could simply write to tell the dca not to bother us any more as this account remains in dispute, and that we will see them in court, along with all correspondence and phone recordings if they try to illegally hassle.

Surely, the dn doesn’t come into the matter, save that we my want to have it in the background at the hearing for the next level of defence, if necessary?

Any comments?

[vint1954]

The faulty DN is normally your strongest defence, unless you do nothing about it.

[BornAgainBiker]

thanks vint, i'm sending a letter accepting the unlawful termination to mbna.

 

can you confirm though, why a non existiant cca agreement would not be better? am i right in thinking that even if no cca can be produced, it could still be argued in court that a balance can still exist, allbeit unenforceable, whereas, unlawfull dn's actually terminate whatever contract might have existied making any balance uncollectable, save arrears, which can be claimed but can be offset against any damages counterclaim i may have for unlawful termination.

thanks

[vint1954]

In this case, the CCA would be used as an argument also. So:

 

The DN you sent me is pants and unlawful. You have terminated my agreement unlawfully on the back of it. I accept your unlawful termination. Notwithstanding the above, your CCA is also pants or does not exist, therefore a court is precluded from making an order.

[nks22]

The problem with a missing CCA is that it could still be produced when necessary (eg in court). Confirmation of a non-existant or faulty CCA would be a different matter.

 

(I have received my CCA from MBNA, BTW, although I believe it's faulty.)

[BornAgainBiker]

cheers vint.

 

nks, is that the mbna account re which you first started this thread about, ie, the one that wrote 11 Jan then 28. if so, its the same dates as mine but they havnt sent a cca. i wonder if now they've located them from their archives, why they havnt copied mine to me yet. hopefully, it is lost!

 

can you tell me what a BTW means?

[nks22]

Yes, one MBNA is enough.

 

BTW - by the way. (Sorry.)

[BornAgainBiker]

DLC chased me on phone tonight. i told them the account has been unlawfully rescinded and i've not had reply to my cca request. the bloke spouted that even if invalid termination the account would still be owed? worried now, perhaps i should have refused to speak, what you think. BAB

[nks22]

I wouldn't worry. I just decline to verify my details now, though, and tell them I'll only correspond in writing.

[nks22]

the bloke spouted that even if invalid termination the account would still be owed

 

What matters is not whether or not it's owed but whether it's enforceable by a court.

[BornAgainBiker]

What matters is not whether or not it's owed but whether it's enforceable by a court.

 

of course, suffering there from bit of 'short term memory loss', plus utter confusion, alright now though! BAB

[BornAgainBiker]

Just had letter from mbna apologising for not responding to my s78 request. they said i am still obliged to make payments as confirmed by recent McGuffick v rbs case. i had a look at the case but got a bit lost. the gist (i think) is to do with enforcement, which is not allowed if an account is in dispute. but the judge said that asking for payments is not enforcement, is this correct.

 

if so, where do we stand not making payments? anyone got a view on this. BAB

[haggis1984]

Just had letter from mbna apologising for not responding to my s78 request. they said i am still obliged to make payments as confirmed by recent McGuffick v rbs case. i had a look at the case but got a bit lost. the gist (i think) is to do with enforcement, which is not allowed if an account is in dispute. but the judge said that asking for payments is not enforcement, is this correct.

 

if so, where do we stand not making payments? anyone got a view on this. BAB

 

Yup Mcguff concerned s78 requests and subsequent enforcement. The Gist was that nothing the creditor does ever counts as enforcement - that judge would probably have allowed the bank to take the debtors family hostage

 

So they can still ask you for payments, doesn't mean you can't tell them to bog off though!

 

Note that in Mcguff the creditor initially failed to satisfy the the s78 request but then satisfied it at a later date before court action. IMHO the judgement therefore can be interpreted to only apply to situations like this - so would only be relevant if MBNA at some time in the future satisfy your request.

 

Further reading:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/216538-claim-stayed-due-unenforceable-79.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case-73.html

 

If anyone disagrees with what Ive said please correct me!

[BornAgainBiker]

cheers Haggis, nice answer, just hope they dont come up with a valid agreement.

 

can you or anyone advise the next step. adca now owns my account, possibly illegally, do i just sit and wait for them to take me to court?

 

and, if they do take court action, and i defend on the basis of no cca and invalid default, are there any court cases showing the result of such an action? just so i can get an idea of what might happen as i'm loosing my bottle a bit,

cheers

BAB

[haggis1984]

The more you learn the more bottle youll have

 

From the recent OFT guidance:

 

Where there has been a variation of the terms and conditions of the

agreement

2.27 Where an agreement has been varied in accordance with section 82(1)

of the Act, the OFT considers that, by virtue of Regulation 7 of the

Copies of Documents Regulations, the duty is to provide not only a copy

of the agreement as originally executed but also either

14 There are cases where no executed agreement is required by the Act, for example, certain

bank overdrafts.

15 Section 127(3) continues to apply to agreements made before 6 April 2007.

OFT1175con | 15

• a copy of the latest variation given in accordance with section 82(1)

of the Act relating to each discrete term of the agreement which has

been varied, or

• a clear statement of the terms of the agreement as varied in

accordance with section 82(1) of the Act.

2.28 Although some creditors have apparently considered it is sufficient to

provide a copy of the current terms and conditions (that is, 'a statement

of the terms of the agreement as varied'), that does not comply with the

requirements of Regulation 7. In Carey v HSBC Bank plc16 there was

detailed analysis of this issue and it was confirmed that 'include' meant

that the documents showing the variations were to be supplied in

addition to a copy of the original agreement.

 

 

Vints comments in post 83 are spot on. A quick letter to MBNA accepting unlawful recission of contract and a quick letter to ADCA explainging this, and the failure to satisfy the s77 request will do for now.

Edited February 2, 2010 by haggis1984

[nks22]

See the links in this post:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/216538-claim-stayed-due-unenforceable-80.html#post2743575

[Papa_Smurf]

Add me to the list.

 

MBNA sent me a DN which was dated 4th of the month and the remedy date was 21st of the month.

 

MBNA then sent me another letter dated 18th of the month stating the debt had been sold to a DCA.

 

Plus, I never received a termination letter from MBNA. Just a letter from the DCA stating they now owned the debt and demanding payment in full.

[underdog13]

Add me to the list too - debt sold a week prior to DN remedy date....

[Dotty50]

And mine!

[angel_1]

hiya all

 

going to recheck my paperwork received and will let you know too

 

laters angel x

[djc1]

Add me to the list.

 

Received Default Notice dated 8th of the month and remedy date 25th of the month.

Another letter dated 19th of the month stating Your outstanding balance due under the above account has been sold to the Lowell Group.

 

Not herd anything from Lowell Group and will be getting the Unlawful Recession leter off ASAP.

[Bosund]

Subbing...just about to have a pop at MBNA

[yoyoscot]

Hi,

Interesting thread...

Best I can tell my account was sold before the DN expired

AND/OR

I wasn’t given enough time to rectify the situation and therefore the DN was invalid.

No Notice of Assignment was ever sent to me, and no reply has been sent to my SAR [sent recorded delivery and they cashed the cheque].

Should I be accepting an unlawful rescission of my account now …or do I hang on hoping that I might get further proof through my SAR [if I ever receive anything back]?

 

Any thoughts?

 

Thanks

Edited March 5, 2010 by yoyoscot
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[vint1954]

Hi,

 

Interesting thread...

 

Best I can tell my account was sold before the DN expired

 

AND/OR

 

I wasn’t given enough time to rectify the situation and therefore the DN was invalid.

 

No Notice of Assignment was ever sent to me, and no reply has been sent to my SAR [sent recorded delivery and they cashed the cheque].

 

Should I be accepting an unlawful rescission of my account now …or do I hang on hoping that I might get further proof through my SAR [if I ever receive anything back]?

 

Any thoughts?

 

Thanks

Yes, you need to accept this as soon as you realise that there is an unlawful rescission.

 

Dear xxxxxxxxxxxxxxxxx,

 

Re account no xxxxxxxxxxxxxx Unlawful Rescission.

 

I refer to your Default Notice dated xxxxxxxxxx, posted second class and received by me on xxxxxxxxxxx and your subsequent letter terminating the agreement by demanding the balance in full, dated xxxxxxxxxx, received xxxxxxxxx, I would add that these actions were taken by you, while the account was in serious dispute, owing to your failure to respond to my request under s78 of the CCA 1974.

 

The default notice failed to give me the required statutory time in which to seek legal advice and/or remedy any alleged defect. Your actions resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default. These actions by you, have resulted in you unlawfully rescinding the alleged agreement.

 

I accept your unlawful rescission of the agreement and I note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and I would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

Yours xxxxxx

[yoyoscot]

@vint1954...

 

Thanks v much for your response.

 

Don't think I received anything more from MBNA ...such as a letter terminating the agreement. What happened after the default notice was that my account number was changed within a few days [i have written evidence of this] ...and I was contacted by EC a few weeks later.

 

The timing of the DN appears to have been too short. The change of my account number in a letter a few days after the DN [perhaps] indicates that my account was closed just a few days after my DN. However, there hasn't been anything else in writing from MBNA since the DN.

 

So, no letter informing me of termination [received], no NOA [received] ...and so far no reply to my SAR [received]. I guess it could be that the Royal Mail aren't doing a great job.

 

So with a lack of huge amounts of hard evidence, I'm wondering whether I should hold out to see if MBNA send me a response to my SAR at some point now it's well beyond the forty day mark - and this might shed some light on the situation.

 

OR

 

Maybe I should just send in a letter [thanks] as you suggest?

 

If you get a mo, I'd appreciate your thoughts.

 

Thanks - yoyo

Edited March 7, 2010 by yoyoscot
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