Link Financial/MBNA

[GoAwayDebt]

Hi Everyone

This is my first time posting and even though I have followed these forums for the last year or two I'm looking for some direct advice now.

Last year (April 2009) I sent a CCA (Act 1974) request letter to Link Financial for an MBNA credit card debt that they had aquired and were demanding immediate payment for. They responded a few days later to say that they didn't have the agreement and that they would have to ask MBNA to provide it to them and that this would take up to 30 days.

 

I had heard nothing from them since, until March this year when they sent me a copy of the agreement and stated that since my request was made under Section 77 or 78 of the Consumer Credit Act 2006 they have fulfilled their obligations.

 

Then followed six weeks of phone calls (sometimes 3 times per week) on my mobile, all of which I didn't pick up.

 

I have now received a letter from them today to say that they are serving notice under Section 136 of the Law of Property Act 1925. If I don't call them they will take further recovery action.

 

My issue with this is that they took a year to provide the CCA and then they appear to refer to a different CCA act.

 

Any advise on the next move I should make? I don't want to get tangled up in telephone conversations with them.

[cerberusalert]

Can you post up the CCA after removing any identifiers?

[Bazooka Boo]

Well this is the notice under S136 of the Law of Property act???

136 Legal assignments of things in action

 

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

(2)This section does not affect the provisions of the M2Policies of Assurance Act, 1867.

[F1(3)The county court has jurisdiction (including power to receive payment of money or securities into court) under the proviso to subsection (1) of this section where the amount or value of the debt or thing in action does not exceed [F2£30,000].]

 

I don't think they themselves have any idea what they are on about?

 

So from what I can make out, they are either saying they are now going back to the OC to get assignement of this debt? OR, they already have been assigned this debt, under the law of property act, therefore they now have a vested interest in recovering the amount??

 

Either way, they are using legal terms designed to exploit your lack of knowledge, and again, they have breached the OFT debt collection Guidelines, it makes no sense to me? But I do have a thick head!

[cerberusalert]

I think it's their way of saying they've bought the a/c.

[Bazooka Boo]

Yes could well be, but surely a NOA would be clearer?

Ooh, trying to fathom out the thinking of a DCA, hurting my head already....

[GoAwayDebt]

Hi

I've attached the copy of the CCA. It was signed in 1999.

CCA.pdf

[cerberusalert]

What they have provided is an uneforceable application form which does not contain any of the prescribed terms required by CCA 1974 nor the right to cancel as required by CCCA 1983.

[GoAwayDebt]

nor the right to cancel as required by CCCA 1983

 

What does this mean?

[cerberusalert]

Under the Consumer Credit Cancellation notices an agreement which is signed off premises (in your own home) must contain a box which gives you the right to cancel an agreement. See pages 4 & 5 of the attached pdf.

3. Consumer Credit (Cancellation...cuments) Regulations 1983..pdf

[GoAwayDebt]

The statement on the CCA underneath the signature box it says:

YOUR RIGHT TO CANCEL

Once you have signed this agreement you will have for a short time, a right to cancel it. Exact details of how and when you can do this will be sent to you in the post by the bank.Application accepted and Agreement signed for on behalf of Bank

 

I can't remember if anything was ever sent afterwards.(11 years ago!). But if I am understanding what it says in the Reg 1983, the statement on the CCA isn't enough.

Is that right?

[cerberusalert]

the statement on the CCA isn't enough.

Is that right?

Yes, they should have sent you details on how to cancel an within what period.

 

Under CCA 1974 it should contain credit limit, %APR and terms of repayment.

[GoAwayDebt]

Back to the letter they have sent me "Serving Notice".

Should I write back to them pointing out their errors (not sure how to construct my letter though), or should I wait for them to make the next move? As I said before I don't want to get into a telephone conversation with them.

I don't know what's the best thing to do next.

[cerberusalert]

Send them this;

 

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states;

 

127(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).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

[GoAwayDebt]

Thanks so much.

I'll send this recorded delivery on Monday and wait for their response.

[GoAwayDebt]

Hi there

I sent the letter 9 days ago. Since then I've received a statement dated 30/04/2010 which is probably nothing to do with my request.

 

Today I received a letter from them, which made no reference to my letter from last week, with a copy of a different MBNA application form saying that this fulfils their obligation under section 77 or 78 of the 2006 act.

 

now I'm really confused!!

 

The copy that they have now sent me is not the one that I was disputing with them however, they have written the same reference number on it.

 

I am aware of this other account as I had disputed it with Intrum Justitia last year, they were unable to provide me a copy of the CCA and they informed me that they would be sending the account back to MBNA (maybe that one now needs a new thread!!).I haven't heard from them since.

 

Should I wait until my original 14 day deadline is up before I contact them?

 

Is it possible that they have bought this other debt from MBNA and got the account numbers mixed up?

 

 

Anyhow I checked by credit report and I have both of the accounts in default: one with Link and the other with Intrum Justitia.

 

I feel like Link are trying to catch me out here but it seems that they do not have their paperwork in order.

[angry cat]

Hi there

I sent the letter 9 days ago. Since then I've received a statement dated 30/04/2010 which is probably nothing to do with my request.

 

Today I received a letter from them, which made no reference to my letter from last week, with a copy of a different MBNA application form saying that this fulfils their obligation under section 77 or 78 of the 2006 act.

 

now I'm really confused!!

 

The copy that they have now sent me is not the one that I was disputing with them however, they have written the same reference number on it.

 

I am aware of this other account as I had disputed it with Intrum Justitia last year, they were unable to provide me a copy of the CCA and they informed me that they would be sending the account back to MBNA (maybe that one now needs a new thread!!).I haven't heard from them since.

 

Should I wait until my original 14 day deadline is up before I contact them?

 

Is it possible that they have bought this other debt from MBNA and got the account numbers mixed up?

 

 

Anyhow I checked by credit report and I have both of the accounts in default: one with Link and the other with Intrum Justitia.

 

I feel like Link are trying to catch me out here but it seems that they do not have their paperwork in order.

 

Smoke and mirrors, as ever from Link F'

 

by GoAwayDebt:

Today I received a letter from them, which made no reference to my letter from last week, with a copy of a different MBNA application form saying that this fulfils their obligation under section 77 or 78 of the 2006 act.

 

Please post up a copy of the application form that differs from the original sent.

 

I also, presume that you have not been provided with the 'Inception Terms & Conditons'; issue date 1999?

 

Unless, MBNA/Link have provided these, then they have not fulfilled "their" obligations under sections 77-79 of The Consumer Credit Act 1974.

 

Question:

What applications have you made to the Credit Card provider: MBNA?

 

Could be that the letter you have received is Re: another Card/Loan that you applied for?

[angry cat]

Affiliate Programme | UK | MBNA - Official Site

[GoAwayDebt]

Hi Angry

I'll post up a copy of the application form tomorrow (my scanner's not working at home). I have two applications in total to MBNA: One signed in 1995 and the other in 1999. The 1999 is attached earlier in thread.

 

Also, any idea why they keep referring to the Consumer credit Act of 2006 when all of my letters refer to the act of 1974?

[GoAwayDebt]

Here is the copy that that Link sent me this week

RI CCA.pdf

[Bazooka Boo]

Completed in store on their premises?

 

Where you self employed?

[GoAwayDebt]

no

[Bazooka Boo]

Completed in store on their premises?

 

Where you self employed?

 

No to both questions?

[GoAwayDebt]

Sorry!

I think this was completed in store, not 100% sure as it was so long ago.

 

No I was not self employed.

[GoAwayDebt]

Hi

Can anyone give me further advise on my case?

Two weeks has passed since my last letter to Link and all they have done is supply me with an agreement that I was not disputing with them in the first place!

 

Any ideas will be really appreciated.