MBNA CCA - Is it legal?

[vint1954]

@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

Demanding the ballance in full is also termination.

[BornAgainBiker]

hello, i'm back. just a quick reminder, i cca'd mbna in Nov 09, received a dn in December giving insufficient time to rectify, followed by confirmation letter letters from the new debt owner and Mbna. i wrote accepting their unlawful termination and have now had a letter from mbna saying, words to the effect "sorry you have had cause for complaint, not our problem now, deal with the new debt owner".

 

there seem to be a lot of people in this position, are MBNA be playing the same game as the creditor in the mGuffink case. ie, getting to court then producing the cca at the last minute?

 

if so, what is to be acheived by going to court. doesnt mcguffink prove that we cant win, no matter what.

 

have i got it wrong here?

[nks22]

You (we) no longer need to worry about MBNA. They've sold the debt (as they're entitled to) and are no longer the creditor. The question is whether the new owner of the debt can enforce payment through the courts. The law seems to say that the faulty DN and acceptance of unlawful recission means they can't but it remains to be seen if they try.

[nks22]

Had a reply to my unlawful recission letter from Hillesden today. They've asked me to send them copies of the MBNA agreement (do they not have the original?) and the DN together with "full details of your complaint along with any tangible evidence to substantiate the claims made". Should I send them an (illegible?) copy of my agreement? I'm tempted to make a CCA request to them.

[citizenB]

Had a reply to my unlawful recission letter from Hillesden today. They've asked me to send them copies of the MBNA agreement (do they not have the original?) and the DN together with "full details of your complaint along with any tangible evidence to substantiate the claims made". Should I send them an (illegible?) copy of my agreement? I'm tempted to make a CCA request to them.

 

No,

 

You have put them on notice that the account is in dispute with the Original Lender. The people they Purchased the account from. It is up to them to ask MBNA to provide that information. In fact, it was darn stupid of them to take the account on WITHOUT the correct paperwork.

[Dotty50]

You (we) no longer need to worry about MBNA. They've sold the debt (as they're entitled to) and are no longer the creditor. The question is whether the new owner of the debt can enforce payment through the courts. The law seems to say that the faulty DN and acceptance of unlawful recission means they can't but it remains to be seen if they try.

 

Hi, nks22

 

I didn't think they could sell the debt when it is in dispute?

 

For me, MBNA haven't produced anything since requesting CCA in April last year so if Hillesdens have bought mine it will be interesting to see what they can produce! Although not heard back from them............ yet!

[BornAgainBiker]

for the info of all concerned, i just received a letter from hillsden quoting the mCguff case. they said they will provide a 'true copy' if the original cannot be found.

 

if anyone can answer this, i would be obliged.... if hillesden produce a 'true copy' can they then use this to enforce the debt?

 

thanks BAB

[nks22]

My understanding is that a 'true copy' can satisfy a CCA request but that an original is still required in court.

[vint1954]

They are at perfect liberty to provide a reconstruction for s 78 requests. In court is a different matter. If they are going to try and convince a judge that their copy is a true and real copy, exactly as the original, they will be in difuiculty proving that. CC companies issue many application for types over a period with differing terms.

 

Dont forget, different rules in court.

[bradfordlad]

Hi everyone,

 

just a question on Vint's post above -in these circumstances, is it worth calling their bluff? As in -"you'll be aware you'll still need a true copy of the original agreement if the case goes to court - see you there!"

 

BL

[blueotter]

It's not a true copy,its the original document that's required in court.

 

A true copy as vinnt says will suffice for a cca request but not a court of law

[BornAgainBiker]

Hello all, Hillesden have have taken over my mbna debt. they just sent me a document with my signature on it which is attached here, pretty illegible though. can anyone tell me if a judge would consider this a valid cca if i were taken to court by Hillesden for the debt?

 

 

comments gratefully received BAB

scan3.pdf

Edited June 21, 2010 by BornAgainBiker

[usaname]

Would a judge consider it valid? Who can say what goes on in the minds of others?

 

60.—(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

 

(2) Regulations under subsection (1) may in particular—

(a) require specified information to be included in the prescribed manner in

documents, and other specified material to be excluded;

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

 

Where is the text that relates to 1(a), 1(b), and 1©?

 

Technically, what you've got is not a properly executed CCA.

 

For MBNA and Hillesden to attempt to pass it off as one shows how morally corrupt they are.

[barrowby]

Subbing, I have a very similar document to BornAgainBiker's (same 04/04 document numbers). When they sent me their reply to my CCA request i got a from and a back and a blank (perfect copy) of the original front... presumably so that I could read the small print!....they are here if you want to have a look http://www.consumeractiongroup.co.uk/forum/mbna/261009-mbna-so-where-do.html

 

My DN is due to expire tomorrow.....so I wait with baited breath!!!

 

Thanks for a great thread!

[underdog13]

BAB, check the date that Hillesdens bought your debt from MBNA - their document often predates the comply by date in MBNA's DN; which means you were prevented from complying with the DN even if you wanted/were able to!

[BornAgainBiker]

thanks usaname & underdog. hillesden bought the debt 20/01/10, on the back of a faulty DN (due to insufficient time allowed). as food for thought, i just wondered, if the court disregarded the faulty dn on some technical basis or other, is the mbna cca that has just surfaced likely to be unenforcable in a court of law? just trying to calm my nerves a bit you understand. cheers BAB.

[underdog13]

Hi BAB, if the DN is proved to be faulty, this reduces the debt to the level of the arrears claimed on the DN

[BornAgainBiker]

thanks for that underdog, lets hope it is BAB

[nks22]

Received a letter from Hillesden today saying they've "referred this matter back to the original lender for their comments". Meanwhile my account has been placed on hold.

[Ricardino]

Hi all, great thread about a lousy lender.

I have a general hearing re MBNA coming up and wanted to clarify some of the points raised here.

1) Does'nt the Carey v HSBC (2009) ruling mean they don't have to provide an original at court?

2) If the DN asks for the whole balance as outstanding is too late to make the unlawful recission point in my witness statement or does that mean the liability reduces to the arrears only?

I'm certain the reconstituted agreement will let them down but have heard alot of people being stung with costs orders from their barristers on the day!!

[nks22]

1) As I understand it that only concerns satisfying the requirement to respond to a CCA request and that it's still necessary for an original document to be produced in court.

 

2) There is an argument that you can accept it at any time and another that the main thing is that you haven't done anything to demonstrate that you believe the agreement to still be valid, e.g. by continuing payments. (That's assuming the DN is in some way non-compliant, of course.)

[BornAgainBiker]

Hello, got a letter from hillsden on 23 sept 2010 re my wife's mbna account. They attached a copy of the application form my wife signed when applying for the account, it has printed at the top ' credit agreement regulated by the consumer credit act 1974'. it also states a credit limit of £5500k.

 

Hillesden's letter says, 'as the account does not relate to a fixed sum agreement, the prescribed terms are not required to be on the face of the agreement'

 

the letter closes to say they do not agree that the account is unenforcable.

 

For the record, Mbna were 'out of time' re. their default notice and confirmed, back in January 2009 that the account had been sold to Direct Legal-Dtl and that all future correspondences should be directed to them.

 

does anyone have a view on the above, it would be much appreciated, as I'm now dreading receipt of court forms? thanks BAB

[nks22]

The validity or otherwise of the original agreement isn't really relevant. What matters is whether or not Hillesden's are entitled to claim for a debt related to an agreement with MBNA. If your case is anything like mine the debt will have been sold to Hillesden during the remedy time of the default notice and I believe it's on that issue that you should challenge them.

[BornAgainBiker]

Hi nks thanks for your reply. mbna sent my invalid default about the same time as you received yours, and i followed the thread at that time.

 

What you say here makes sense. however, Im not sure how to challenge them, or even if I should. Should I write stating my position offering payment of the arrears and not the whole balance (because of the faulty dn) or ignore their letter and see how they will respond next?

 

Can I ask if you are being chased or are challenging them in any way?

 

on a completely seperate subject, but related subject, I wonder if you or anyone following this thread, might have advice on the following; I have a bank overdraft for 26k with Barclays. Under the determination made under section 74(3) of The Consumer Credit Act 1974, I have requested the documents I am apperntly entitled to relating to O/D's. All the bank have provided is statement copies. I have received many credit agency letters stating part v exemtion, but now have a solicictors letter threatening legal action. can anyone offer advice or any good threads where i can re-post my enquiry.

 

many thanks, BAB

[nks22]

The arrears would have been due to MBNA had they not sold your account but Hillesden's will have bought it as a single debt (and probably paid about 15% of its value) so the arrears are no longer an issue. You don't owe them to MBNA because they've sold all interest in the debt and you don't owe any to Hillesden's as your argument is that you don't recognise their ownership of the debt. Any payment to Hillesden's would be an acknowledgement that you owe them money so should therefore be avoided. The line you need to stick to is that you don't owe them anything.

 

I sent this to Direct Legal/Hillesden's at the end of January:

Dear Sir/Madam

 

Re: a/c ref. XXXX XXXX XXXX XXXX

 

I am in receipt of your letter dated XX XXXXX, 2010.

 

This account is in dispute with MBNA and has been since XX XXXXX, 2009.

 

Furthermore, the credit agreement has been unlawfully rescinded by MBNA’s action in selling the debt before the statutory period for remedy specified for a valid Default Notice.

 

Not only is your demand for payment a breach of the Consumer Protection From Unfair Trading Regulations 2008, in line with the Office Of Fair Trading's debt collection guidelines, but it is also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998.

 

If Direct Legal chooses to ignore my dispute and the illegal recission and attempts enforcement I will pursue the matter with the appropriate authorities, including but not limited to Trading Standards, the Office of Fair Trading, the Information Commissioner’s Office, the Financial Ombudsman Service and possible court action.

 

I would respectfully suggest that this account is returned to MBNA for resolution of these defaults and breaches, as Direct Legal cannot lawfully pursue any enforcement activities.

 

I have enclosed copies of the relevant correspondence with MBNA and would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing. Please note that I will not respond to any phone calls or email correspondence. Furthermore I revoke licence under Common Law for you or your representatives to visit me at my address.

 

Yours faithfully...

I last heard from Hillesden's on 1 October, saying that the account had been placed on hold "pending a response from MBNA".