Help - MBNA Visa Taking Enforcement Action

[Pushonup]

Hi there,

Thank you very much for replying.

Is it better to offer the DCA a f&f figure rather than going back to MBNA as invalid DN and no CCA?

If this went to court I get the impression that due to an earlier ruling this would not be successful in my favour, as originally offered as a business user account. Is this correct?

Yours

Pushy

[citizenB]

Pushup, in answer to your question.. I do not see a signature on your document at all.

 

You would normally expect to see a signature that has been "stamped" on. MBNA usually stamp it at the top left hand corner of the document.

 

I will try and find an example for you.

[griffin036]

Pushonup - yes you are correct, there is a lack of creditors signature which would leave the agreement improperly executed:

 

127.

--(1) In the case of an application for an enforcement order under--

(a) section 65(1) (improperly executed agreements), or

(b) section 105(7)(a) or (b) (improperly executed security instruments), or

© section 111(2) (failure to serve copy of notice on surety), or

(d) section 124(1) or (2) (taking of negotiable instrument in contravention of

section 123),

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if,

it considers it just to do so having regard to--

(i) prejudice caused to any person by the contravention in question, and the

degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.

(2) If it appears to the court just to do so, it may in an enforcement order reduce or

discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him

for prejudice suffered as a result of the contravention in question.

(3) The court shall not make an enforcement order under section 65(1) if section

61(1)(a) (signing of agreements) was not complied with unless a document (whether or

not in the prescribed form and complying with regulations under section 60(1)) itself

containing all the prescribed terms of the agreement was signed by the debtor or hirer

(whether or not in the prescribed manner).

(4) The court shall not make an enforcement order under section 65(1) in the case

of a cancellable agreement if--

(a) a provision of section 62 or 63 was not complied with, and the creditor or

owner did not give a copy of the executed agreement, and of any other

document referred to in it, to the debtor or hirer before the commencement

of the proceedings in which the order is sought, or

(b) section 64(1) was not complied with.

..................................................................................

 

So - a little more ammunition for you along with the defective DN.

[IdaInFife]

the creditor not having a signature on the cca at court stage isn't much help

 

As for the signature, in s.60/s.61 of the CCA 1974, which states the requirements for an agreement to be properly executed. To be such, it requires the signature of both parties - debtor and creditor. If one of them is missing, the agreement is improperly executed and enforceable under a Court order only by s.65.

 

In s.127(3), which states that an agreement, containing the prescribed terms that does not have a debtors signature is excluded from having an enforcement order issued under s.65. Ergo, a missing creditor signature will mean an improperly executed agreement that can be enforced by the Court under a s. 65 order (nicked from car2403)

[Pushonup]

So Ida,

Are you saying that a court is likely to uphold the agreement as enforceable even though the Creditor has not signed it and that i have not been given a signed copy?

Yours Pushy.

[citizenB]

Pushy, if the agreement is compliant with the CCA1974 in all other respects and is just missing the signature, then yes, it is likely a Judge will say it can be enforced.

 

If the agreement lacks a signature along with other significant discrepancies ie lack of prescribed terms then agreements entered into BEFORE 2007 should not be enforced.

[Pushonup]

Hi IdaInFife,

Thank you.

So if going to court purely on the siganatory side of things.

The document contains all the required terms and is signed by the debtor (me) would be enforceable by the court even though the creditor (MBNA) has not signed it.

Unless (Thanks - per Griifin036 above)

(4) The court shall not make an enforcement order under section 65(1) in the case

of a cancellable agreement if--

(a) a provision of section 62 or 63 was not complied with, and the creditor or

owner did not give a copy of the executed agreement, and of any other

document referred to in it, to the debtor or hirer before the commencement

of the proceedings in which the order is sought, or

(b) section 64(1) was not complied with.

I now need to see what these to sections apply to.

Thanks for your input

Pushy

[Pushonup]

Hi Everyone,

I've just been checking my credit file and see that the MBNA account that has been passed to Experto Credite is now showing as belonging to them (EC) on my file with the default registered against it.

Although the CCA that I signed is apparently enforceable how do I stand in the fact that the Default notice was not properly served and that the account number that Experto are trying to collect against is not my original account number and that i have not been advised in writing that the account number has changed.

I wonder if you would agree that the original account is still in dispute and that the defective DN affects the value that MBNA can claim?

Or

am I missing something here.

May be I just need to realise that i will need to cough up eventually!.

Any one any ideas please.

Should I write to Experto Credite and refer them back to MBNA as account is in default and I don't recognise the account they are referring to?

Yours

Pushy

[Pushonup]

Hi everyone,

I have received a letter from Lowell now asking me to contact them to arrange to pay the monies they say I owe.

 

 

Seeing as: -

1) MBNA have admitted they haven't got the original CCA (which means that they can not create a "True" copy.

2) The default notice was served without sufficient 14 day period to pay the requested monies.

3) They lodged a default on my credit file before they wrote and defaulted the account.

4) The account number that they have quoted as being sold to Lowell Group is not one that I can find any reference to and is nothing like my Mastercard Number that is in dispute. Lowell do quote the correct one on their letter of 10/01/10.

The balance outstanding is slightly under £5,000.

 

Should I write to lowell asking for a Full & final Settlement or refer them to the fact that there is no CCA and that I do not therefore accept their claim for the money?

Which would be the best letter to send to MBNA regarding the default lodged with the credit reference agency to insist that thye remove it? The one in respect of the Data Protection act infringement or something else?

Any advice please?

Yours

Pushy

[Pushonup]

Hi Everyone,

You are starting to lose me here!

Please would one of the team confirm that the application form would appear to fulfill the requirements of a CCA as it contains all the required terms, conditions and my signature.

Would the fact that MBNA issued a defective Default notice have any real significance in a claim?

Experto Credite are now pushing so should I write to them telling them that they should refer back to MBNA as the account is still in dispute with MBNA who have not provided or complied with he Consumer Credit Act.

Am I likely to be able to challenge this card agreement?

Here is the latest Experto Credite letter: -

 

I would really be glad to have a bit of clearer advice / guidance as to where I stand on this one please.

Yours

Pushy

[dx100uk]

fire off a cca request to lowells or the deny any debt letter.

 

in fact, yes i'd fire off the latter, then if they persist , i'd fire off a CCA request.

 

as for the default, you could try the data protection infringement one.

 

just bear-in-mind, that i've not directly seen , only read on here, that, as such, the OFT/FOS etc, are down on record as saying that even if a CCA does not exist, they are quite happy for OC's to report info to the CRA's even if a dispute exist over the enforceability of a debt etc etc.

 

there is also a link in my sig that you might want to read

 

 

so you will have to see what happens.

 

dx

 

dx

[supasnooper]

The agreement is enforceable even thoughit is not signed by MBNA.

 

The credit limit is stated as the description they use in Paragraph 3 on the agreement will suffice.

 

Please re-read the links I posted in post #5 to understand the enforcability of agreements.

 

Your defence is this matter is the defective DN and the fact that MBNA have terminated the account.

 

Please read the links carefully as they willl explain the position you are at -

 

B_R_W's post on DN's

 

The link below is how MBNA describe an account being "charged off" or sold to a DCA, thus the account is terminated.

 

img011.jpg picture by paulbaxter009 - Photobucket

 

I'd print off a copy of this if I were you.

Edited January 21, 2010 by supasnooper
typo

[Pushonup]

Hi Dx,

Received this from Lowell Financial.

Been rather busy over the last few days.

Will write those letters we considered in our last exchange now.

Yours

Pushy

[dx100uk]

offer them 10% as F&F settlement on the understanding they nor none of theirs nor MBNA's agents can further chase the debt & that your credit file is marked settled.

 

else fire off the CCA request.

 

dx

[cerberusalert]

The Default Notice is invalid for other reasons, they have not allowed enough time to remedy. It is dated the 4th Dec which was a Friday so it could not have got into the postal system until the following Mon 7th, allowing 4 days second class post + the 14 days to remedy the remedy date should be the 25th Dec. Now add to that the fact that it was a Bank Holiday period & the PO was shut for several days the remedy date should be even later. By selling the debt and demanding the full amount they have unlawfully rescinded the contract...... no wonder Lowlife bought the a/c, it within their buying criteria..... unenforceable.

[Pushonup]

Hi Dx And Cerberus,

Thank you both for your valid input.

If as you now say the contract is unenforceable do I now tell Lowell to refer back to MBNA using 42man's letter refer back to original lender as account in serious dispute?

Should I refer to any of you key points Cerberus or save them for a later date if needed?

I've just received another letter from Lowells today so will send something off to them recorded tomorrow: -

Thank you for pointing out the detail of the dates and timescales on the failed Default notice. I had totally overlooked the weekend and xmas holiday period implications.

Yours

Pushy

[dx100uk]

std computer generated crap designed to make you contact them.

 

dx

[Pushonup]

Hi Supasnooper and all,

Thank you for pointing those things out for me and the relevant links.

For everyones information Experto Credite have woken up to the fact that they can not claim against an account number that is not the one in the original Credit Card Agreement and have written to try and correct it.

See below:

I am now writing to Experto Credite and MBNA to point out the defective termination notice and the amount owed (just the arrears requested) as well as the failure to comply with the data protection act and the recording of the default with the credit reference agencies.

I'd be interested to hear any thoughts from you about this.

Yours,

Pushy

[Pushonup]

Hi again,

Lowells still trying so I've decided to refer them back to MBNA and the defective Default notice and lack of CCA.

They sent this letter today so we'll see what my response brings.

Wrote to MBNA mastercard with a copy too.

Will keep you informed as and when replies received.

Letters sent:

LOWELLS: -

Dear Sirs,

I am in receipt of your letter dated 15/02/2010 which continues to refer to a reference that is not covered by a valid CCA agreement.

The above account would appear to have been sold to Lowell Portfolio I Ltd on 22/12/2009.

This account is in dispute with MBNA Credit Card and has been since 3rd June 2009.

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

My previous dispute from 3rd June 2009 has NOT been answered.

As MBNA Credit Card are in default of my Consumer Credit Act request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

As you are aware, while my Consumer Credit Act request remains in default, enforcement action is NOT permitted under s127. This constitutes a complete defence at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Now I would respectfully suggest that this account is returned to MBNA Credit Card for resolution of these defaults and breaches, as Lowell Financial cannot lawfully pursue any enforcement activities.

If Lowell Financial chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

After taking advice, I am of the opinion that any continued pursuit is in violation of the Consumer Protection from Unfair Trading Regulations 2008 in line with the Office of Fair Tradings’ Collection Guidelines.

I hope that this will not be necessary and an acceptable solution can be accomplished.

The Default Notice issued by MBNA Credit Card is invalid and by selling the debt and demanding the full amount they have unlawfully rescinded any prior contract.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

 

MBNA: -

 

ACCOUNT IN DISPUTE

Dear Sir/Madam,

The above account would appear to have been sold to Lowell Portfolio I Ltd on 22/12/2009 although your letter dated 18/12/2009 refers to an unknown account number.

The Default Notice that you issued on 4th December is invalid as you have not allowed me enough time to carry out the requested remedy. The 4th December 2009 was a Friday so it could not have got into the postal system until the following Mon 7th December, allowing 4 days by second class post + the 14 days to the remedy date it should be the 25th December (Bank Holiday). Now add to that the fact that it was a Bank Holiday period & the Post Office Royal Mail was shut for several days, the remedy date should be even later. Even if it was despatched on the Friday 4th the remedy date should have been at least the 22nd December 2009.

By selling the debt after issuing a defective default notice and demanding the full amount you have unlawfully rescinded any contract that may have existed even if you had not confirmed that you are unable to provide a valid Credit Card Agreement.

This account has been in dispute with you since 3rd June 2009.

Not only is passing this out to a debt collection agency a breach of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading debt collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998.

As you are aware while my Consumer Credit Act request remains in default, enforcement action is NOT permitted; under s127 this constitutes a complete defence at law.

If Lowell chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

After taking advice, I am of the opinion that any continued pursuit is in violation of the Consumer Protection from Unfair Trading Regulations 2008 in line with the Office of Fair Trading Collection Guidelines.

I hope that this will not be necessary and an acceptable solution can be accomplished as no agreement that may have existed between us is valid.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully

[Pushonup]

Dear friends,

To keep the thread running in context.

I sent off these two letters to Experto Credite and MBNA in February disputing the validity of the account and their continued pursuit of the debt.

This one to MBNA:

and this to Experto Credite:

They acknowledged receipt and would investigate my complaint!

Yours

Pushy

[Pushonup]

Here I am again,

MBNA came back to say that they felt they had acted properly and tried to resolve the situation.

They said that I need to let them know within 8 weeks if this is not a satisfactory answer.

I'm about to do that now as the eight weeks are up and I may have missed that trick to test them further.

They suggested that I refer to the Financial Ombudsman Service if I'm not happy. See their letter below...

I'd appreciate any comment to what i might say to put my case more clearly.

How do I go about contacting the FOS or FSA to complain, please?

Best wishes

Pushy

[Pushonup]

Can someone please help me to shed some light on the best letter or wording to use when contacting the Financial Ombudsman Service.

Is there any particular aspect of a complaint that is more relevant than other aspects in their eyes?

Yours

Pushy

[Pushonup]

Hi,

Just to bring this thread a bit more up to date: -

1) MBNA wrote back on 24th Feb saying they were investigating my complaint.

2) Lowell wrote back on 26/02/10 noting the dispute and that they were requesting a copy of my CCA from MBNA

3) Lowell wrote again on 28/02/10 saying that they were requesting a copy of my agreement and would try to reply within 12 day period.

4) Lowell wrote saying that MBNA had requested agreement from their archives and threat of further legal if it is produced!!

5) MBNA wrote saying investigation taking longer than anticipated 18/03/10

6) Lowell wrote to say that no more correspondence from them until MBNA produce agreement

Will ad more in a new post.

Yours

Pushy

[Pushonup]

Well I have now received this letter stating that Lowells are not taking any further action as lender unable to produce the required information!

http://i931.photobucket.com/albums/ad156/Pushonup/MBNA%20MCd/MBNAMCdLowellsclosedfile.jpg"]

After this MBNA sent me a further letter with the wrong card application form and the wrong card terms and conditions and a signed letter indicating my outstanding balance staing that they have complied with my SARN and CCA requests.

A load of B*****ks!!

Will keep you posted as and when.

Yours

Pushy

[Pushonup]

http://i931.photobucket.com/albums/ad156/Pushonup/MBNA%20MCd/MBNAMCdLowellsclosedfile.jpg"]

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