MBNA Court Action

[seriously fed up]

nearly forgot - was having a look back through the thread and came across Ida's observation about mis-sold PPI. So if you really want to put the boot in (and no one here is going to blame you if you do) then you could go after that as well. Think I might get their claim put away first though.

[moragh]

:)SFU I couldnt have done it without you and all the other people on this site, if we ever meet in another life the drinks are on me:) I have already emailed the sols asking for removal of all info from credit file and am waiting a reply. I have got to get the agreement to them today as the court date is tomorrow! As usual when I need it scanner has packed in but will type the full contents of the letter later.....Once again...........many thanks

[seriously fed up]

no bother - my pleasure at being able to help is exceeded only by my pleasure at your success

[sea-sidelady]

SITE MANAGEMENT CAN WE GET THIS ONE MOVED TO THE MBNA SUCCESSES PAGE PLEASE.

Of course!

[angel_1]

Fab reading all

 

and again well done in sticking it out - its all about getting the info and the knowledge and very much like playing a game of poker

 

have a fun day all laters angel x

[seriously fed up]

Or a gun fight (High Noon for instance!)

[GeoffreyAlby]

Well Done Moragh!!!!

[means2anend]

ditto

m2ae

[Aaron06]

Hi All,

About 8 months ago, I requested MBNA to send me all the agreement quoting section 78 of the consumer credit act 1974. I have just received a letter from them which states:

 

We enclose a copy of original agreement together with a copy of the agreement currently in placea and signed statement of the account'

Unfortunately the copy of the agreement that we have retrived is incomplete, and at the moment, we are unable to provide a complete copy.

While we try to locate this we confirm that we will not issue court proceeding against you to recover the amount owed to us. However, please be aware that you should continue to make payments to your account, this is because your debt continues to exist and has not been extinguished, so you continue to have an obligation to pay us. As such, we are entitled to contact you to request payment if you fall behind on your payments. We are also entitled to report your repayment patterns to Credit reference Agency, including where appropriate, registring a default against your name, this has recently been confirmed in two high court decisions: McGuffick V RBS & Carey V HSBC.

 

---------- Please advise me how do I move ahead in order to get rid off this debt! after receiving above letter from MBNA CC.

Thanks,

Aaron

[seriously fed up]

sorry, but this is as good as it gets. The fact that they cannot come up with the complete agreement - or indeed do come up with the agreement and for one reason or another it cannot be enforced - it doesnt make the debt disappear. It still does exist. They just cant enforce it by court order. However, McGuffick - confirmed by Waksman in Carey - does allow them to continue to try to collect. On the other hand, they know that they wont be able to use court action, so its possible that they will give up and write it off after a bit, having defaulted you and put that on your credit file. If there is not much likelihood of them being able to collect, why put more money trying to do so - just good money after bad. .

Is there anything you can do? Sadly not much. You can complain to the likes of OFT if they do anything that breaches some aspect of their guidance (the guidance on debt collection would be one to get). But even if they do, they will get warned or something. On the other hand, if you show that you know your rights and prepared to do what you can to fight back, it does sometimes put them off.

I know this is probably what you dont want to hear, but I think its how it is.

[Basil Fawlty]

Over the last couple of weeks, I've received the same letters regarding my MBNA cards....yippeee!

What I dont understand is that one of the accounts was sold to Experto Credite around Christmas time last year.

 

Will MBNA have sent them a letter stating they dont have the original agreement, or will Experto carry on with their threats? And, if they do, should I simply send them a copy of the admission from MBNA?

 

Tks

BF

[seriously fed up]

I really dont know how MBNA would respond to Experto Credite - dont have it/ still looking/ will keep looking, probably.

Experto will, with little doubt, endeavour to collect. But you have two advantages

 

1. MBNA have told you they cant find the agreement
   
2. if MBNA thought they could collect they would have done that. So, while I wouldnt go as far as telling you that Experto Credite dont think they will be able to collect, I think its fair to say that they have less chance of doing this than MBNA had. Recent decisions, such as McGuffick and Carey do though confirm their right to continue collection activities. As I said above, the debt doesnt disappear. Its just that they cant enforce via the court. They may - as one lot are doing with me - send you a computer dump of T&Cs which will have your name and address typed at the top and say this satisfies their obligations under s78 so please pay up. But that is information only - its a very long way from proof - my lot dont even talk about a copy of my executed agreement but of a "relevant agreement" (whatever that might be?). It is though only fair to point out to you that I think there have been cases where courts have been prepared to accept reconstructions on the basis that if you hadnt signed you wouldnt have got the card or the money. This begs a whole load of questions - ok you might have signed something, but what? Was it compliant in terms of s61 1a? If not, even if it was found, it would still be unenforceable. If they come after you, the burden is on them to prove everything is ok in terms of the 74 Act. Very hard if you dont have the original agreement, or a very prejudiced judge.
   

Sending them MBNA's admission isnt a bad place to start - unless you want to be really perverse and ask them for a copy of your Consumer Credit Act, executed agreement, and see what they come up with. You might also think about a Subject Access Request (SAR), which while it costs £10 (compared to £1) for a s78 executed agreement request, does make them fess up even more - they have to admit they dont have the original (if they dont) and have to include any communications they have had with you, so you could go through to see if they defaulted you before selling to Experto Credite which may allow you to threaten them with unlawful recission of the contract if they demand the full amount (which they probably will).

[Basil Fawlty]

Thanks for the reply. The thing is, if EC try to take me to court on the back of a reconstructed document, I will of course ask the question ''what did you reconstruct this document from, as MBNA have already admitted there isnt an original?''

 

I've already SAR'd MBNA, and found out that apart from a DN with not enough days to rectify, and the arrears being asked for included charges, they also sold to EC before the rectify date was up.

 

I'm hoping all these points will be enough to chase off EC?

 

One other question. I havent accepted rescission with either MBNA or EC....should I do this now, and to which company? Also, the fact that it was sold way back in December last year....is it too late to accept rescission?

[GeoffreyAlby]

Thanks for the reply. The thing is, if EC try to take me to court on the back of a reconstructed document, I will of course ask the question ''what did you reconstruct this document from, as MBNA have already admitted there isnt an original?''

 

I've already SAR'd MBNA, and found out that apart from a DN with not enough days to rectify, and the arrears being asked for included charges, they also sold to EC before the rectify date was up.

 

I'm hoping all these points will be enough to chase off EC?

 

One other question. I havent accepted rescission with either MBNA or EC....should I do this now, and to which company? Also, the fact that it was sold way back in December last year....is it too late to accept rescission?

 

 

Are arrears demanded in a DN not allowed to include charges?

[means2anend]

If the alleged agreement has been 'around for a while' go down the route of asking for a current set of agreements with all the varied terms AND THE copy directly from the original...this route may cause them more problems than a mere s78 copy...as Waksman did not say that this type of information could be constructed from 'other sources that existed at the time' of the agreement

[Basil Fawlty]

If the alleged agreement has been 'around for a while' go down the route of asking for a current set of agreements with all the varied terms AND THE copy directly from the original...this route may cause them more problems than a mere s78 copy...as Waksman did not say that this type of information could be constructed from 'other sources that existed at the time' of the agreement

 

Thats true, didnt he actually state that if the terms had been varied the original must be produced?

Variations mean, for example, interest rate changes, credit limit changes? Anything else?

 

BF

[means2anend]

ABSOLUTELY:wink:

 

rgds

 

m2ae

[means2anend]

AND...therefore this route is almost impossible for them to fulfill...if as it appears ALL they have are reconstitutions of executed agreements constructed from 'other sources that existed at the time of the alleged agreement...GET IT!!!8)

 

s78 in Carey can be reproduced from 'other sources NOT DIRECTLY from the original itself...but there was no authority in that same case that applied to agreements whose terms were varied...ASK THE RIGHT QUESTION...different means but same ends

 

rgds

 

m2ae

 

m2ae

[Basil Fawlty]

Good stuff m2.....thats my next move!

 

cheers

BF

[means2anend]

The chances are that most if not all agreement have at some point had their interest rates or some other term varied....use this fact and WAKSMANS authority in CAREY to get them to provide THE executed agreement or at THE VERY LEAST a copy DIRECTLY from the executed s189(1) agreement NOT a copy of a copy of a copy of some microfiche in archives but directly form s189 EXECUTED agreement

 

rgds

 

m2ae

[means2anend]

THAT must be provided in addition to the current agreement that shows the current terms as varied...

[means2anend]

All CAGGERS and debtors should use this method as default!!!!

[Basil Fawlty]

I dont understand why this hasnt been brought up before. Are we missing something?

I've just posted on the Manchester case thread, to ask for opinions.....

 

BF

[means2anend]

This method gets around their retort that 'this is what the agreement 'would have looked like at the time' that you signed AN alleged agreement with us because here they have no authority to construct it from 'other sources' that existed at the time the allegged agreement MAY have been executed(signed/s189)

 

rgds

 

m2ae

[Basil Fawlty]

This method gets around their retort that 'this is what the agreement 'would have looked like at the time' that you signed AN alleged agreement with us because here they have no authority to construct it from 'other sources' that existed at the time the allegged agreement MAY have been executed(signed/s189)

 

rgds

 

m2ae

 

 

I agree 100%, maybe a lot of people have missed this.

 

BF