MBNA says 'Archival retrieval issues at HBoS' - no copy of agreement

[robbom]

Hi all, thanks for helping.

 

I have been lurking here for a while, waiting for MBNA to come up with my SAR, which they did, on the 40th day!

SAR Reply 08-10002.pdf It came with all statements since MBNA took over the account from HBOS and a copy of MBNA's current agreement which doesn't even have a signature page, let alone a signature! (It does have my address printed on it tho!)

 

I had been having problems with Allied International over this one and sent THEM a CCA request first, which they replied by admitting that they had not been sold the debt, but were "acting on behalf of MBNA". Heard nothing from them since replying with a statement of their legal duty to comply and asking them to contact me by post only.

 

My question is, what do I do now? I have not previously done a CCA request directly to MBNA, should I do it now, or take it that they do not have a copy of the original as they have admitted and send them an 'Account in Dispute' letter?

 

I really would appreciate some guidance.

 

Many thanks

 

RobboM

[robbom]

As the pack was not sent 'signed for' should I go down the road of telling them I have not received it at all, just to see if they send the same stuff? Happy to report them for non-compliance of DPA

Comments PLEASE?

 

Thanks in advance

RobboM

[wycombe]

I doubt if a S78 request for the CCA will produce a copy of the original. Because of the recent Carey judgement all they have to produce is what they think is a 'true' copy.

 

Have you defaulted on the account yet? What is the current status of the account?

[robbom]

Thank you Wycombe,

 

I haven't had a DN yet (from MBNA), but I am paying a token amount of £1 per month as my income is so low at the mo. I have been administering my own DMP with all of my creditors since Jan 2007 and have had all interest and charges frozen since then. I was originally paying the minimum amount every month, but over the last few years have had to offer less and less until my current offer. In April I was promised a sum of money as a gift to offer in f&f to my creditors. Nobody accepted my offer and everybody started to harrass me. Then Allied International, and now I just want it all to stop again! I really had had no problems until then. I have always kept them up to date on my income/ expenditure etc. my offers were always accepted and everybody was so polite.

 

This is what I received from my SAR:-

Recent terms & conditions.

Call Logs (3 different sets).

HBoS statements from before MBNA took the account over. (no interest rate shown on any of them)

SOME of the correspondence and payment offers I have sent.

3 screen dumps of TACS Super station system, one detailing my security answers, and the other 2 are Account Information sheets, TACS screen dumps001.pdf, but the account numbers and dates are different on them. Interestingly, the change in status etc between the 2 happened at the same time as my f&fs went in.

 

I have been receiving statements from MBNA, but there are no copies of these included, or any other of the myriad letters I've had from them. Could it be that they really haven't got records of then, other than in the call logs? The covering letter, SAR Reply 08-10002.pdf clearly says that this is all they have.

 

Sorry, I've gone on a bit!

 

Thanks again

 

RobboM

[wycombe]

For MBNA to chase you for this debt you need to have some assets. If you indicated on the original application that you owned a property or have a mortgage then they will chase you through the system once the account has defaulted and you have received the DN (make sure you keep the envelope this comes in as MBNA have the welcome habit of using good old cheepo postage methods to send them thus not allowing enough time to remedy any default). If you have no assets or property it is very likely they will sell your debt to some low life bottom feeding DCA.

 

If they chase you through the courts their actions will follow a pattern (I think you have read my thread) - Summons through Northampton Bulk Centre, defend, fill in AQ etc, they go for Summary Judgement (my stage), win and they go for a Charging Order on your property - lose and it goes to trial or they withdraw if their case is weak and the debt gets sold on.

 

MBNA are not going to stop harrassing you or chasing you so you will have to decide whether you are going to take them on and fight them through the courts. In your favour they have not yet dredged up an agreement as they probably do not have one available and if they do it will be some form of application form they state is an agreement - so this will be your first line of attack. Then there will be the Default Notice when it arrives - most of MBNA's tend to be faulty in one respect or other which is why it is important to have the envelope when it comes. If you decide to take them on head on put the account into dispute - then you will in short order hear from their legal eagles - Optima or Reston's and a Summons will wing its way to you. Then the interesting bits begin!

 

If it goes to this you will get some excellent help and advice to help you along the way here on CAG. If you feel you have nothing to lose then fight them - they are going to do you no favours!

[robbom]

Thanks Wycombe,

 

I do have a house with very small equity (about 1/6 of my debts), but MBNA have admitted that they are unable to provide a copy of my credit agreement. I think that this makes it unenforceable and don't know what my next move should be. Do I now refuse to pay, send an 'account in dispute' letter and wait for the court papers or do I try harder to get the agreement, making sure I exhaust every avenue before going any further? Is it likely that they will be able to come up with an agreement that is admissible in court?

 

Any advice from members gratefully received - Thanks again Wycombe

 

RobboM

[robbom]

Posted twice - Oops!

Edited August 17, 2010 by robbom

[wycombe]

MBNA may have admitted they cannot provide a copy of the original application form but that will not stop them chasing you. What will happen is they will reconstitute what they think your original form should be!

 

What you will have to decide is whether you have the stomach to take them on. If the fight begins you will be at the beginning of a very long road where the opposition will try every trick in the book to browbeat you and beat you into submission. If you look at some of the MBNA threads you will notice some have been dragging on for over a year and are still not settled one way or the other.

 

If you bite the bullet and decide the best course of action is to attack you will get much help and assistance here to help you along that long road. If you have not done so subscribe to some of the ongoing MBNA threads and give them a good read through to see what you are letting yourself in for. You will find most follow a pattern where either Optima or Reston's will act on behalf of MBNA. So before you decide what to do familiarise yourself with what is going to take place. Forewarned is forearmed.

[vengeancedemon]

A thought on this and indeed on any other CCA requests, bearing in mind the Carey Judgement, how would this affect requests for CCA s78 et al pre the Carey J and are OCs ( and others) able to provide reconstituted agreements on pre Carey taken out cards/loans and the like?

 

In other words, and simplistic terms: Is anything pre Carey that does nbot satisfy the requirements of a CCA ss77-79 enforceable or is a reconstituted agreement do able?

[robbom]

Thanks guys,

 

As I see it, they don't have an application or agreement and have admitted it. They have sent loads of un-enforceable DNs that disappeared from the SAR as if they had never happened. I saw off Allied International, so am going to fight MBNA all the way. I'll post the letter I've sent after they've had chance to read it officially!

 

Thanks for your support Wycombe!

 

I can't answer you Vengence, I really didn't understand. (I'm not feeling well though - Man Flu!)

 

RobboM

[robbom]

Am I right in thinking that any amount under £5000 has to be pursued through Small Claims Court?

 

I think I read it somewhere, but just can't find it!