Help MBNA Being Heavy Handed - Optima in a mess and Sect 78

[Chirpycat]

Hi Everyone

 

I have an MBNA Credit Card taken out in 2002. Due to circumstances - my wife and I have run up a debt of £17,000+. We now are in a position of being unable to pay. The thing is this has happened becuase everytime we neared the limit - MBNA simply increased it with no investigations into our circumstances or reference to us.

 

Now we have started to default the charges and interest are racking up. I have come across the Sect 78 business. I do not understand it totally - but I am aware you can make the debt unenforcable but not "right it off". Using the letter on this site I made a Section 78 request. This elicited a response about 4 days after they received the letter. They rang, and first of all denied having the letter, until I told them I had the recorded delivery sig, then they spent the next hour trying every trick in the book. They told me they had never lost a Sect 78 case (is this true - probably not?) that my card was legit - that they would comply with the sect 78, that a court had deemed that they had a month to do so and not twelve days (as the law says I believe), that then turned into six weeks in the conversation then back to 21 days! When I go on the attack - with things like this I am accused of being rude! They tried co-ercing me into paying, then bullying by threatening my house (but a second charge cannot force you to sell as I understand?), then using tactics to assualt my "guilt" - like "Do you think it is fair that you spent 17k of our money but refuse to pay it back". I simply replied that banks are greedy and the real debt minus charges and interest was probably about 5k. The other issue is that they have threatened me with both UK and USA Law stating that they are an American Bank! I continually try to get them to confirm this in writing but they won't, nor will they supply me with recordings or transcripts of calls. I see a Subject Access request coming here. I did make an offer of 10% to settle the debt, they turned it down by telephone but refuse to do so in writing, and refuse to come back wiht a coutner offer as asked.

 

The upshot is I received a response to the Sect 78. It is a photocopy of my original tear off slip from the bottom of the app form (I think). It has my sig but no box for theirs - however across the small writing is a signature from them with a date stamp. My suspicion is this has been added recently. There are two tick boxes for PPI, there is a tick in the "not wanted" but it is not mine, as I use left handed ticks and this is right handed. However I have not paid PPI. There is also a photocopy of the back of the tear off slip which seems to be some sort of rudimentary but not full T&C with an interest rate table. The interest rate here is considerably lower than the present one. There is also a copy of the current 2010 conditions, but not as far as I can tell the 2002 ones.

 

I ahve now had a letter from Optima Legal, stating that they have been "instructed" by MBNA but encouraging me to contact MBNA. I rang the number given for Optima but the phone line was on a loop stating the lines are busy. By using my wife's contacts (she is a legal sec) we got a number and got hold of them. At first they denied they had been intructed but simply had been asked to send the letters. I said that "instruction" means something specific and that now I would only deal with them as this would be reasonable. They did not like that, and I asked that their client sent all their requests etc via Optima so lines did not get crossed. In the end, the guy sort of admitted that the letter was confusing and offered to do just that. I am guessing the instruction doesn't exist in law terms (Optima do not have a file on me) and that this is simply scare tactics? If so it has backfired a bit. If MBNA wanted to say that they were thinking of putting the file across to OPtima, then they should have written to me, not Optima stating that they had been instructed when they hadn't.

 

I continue to get letters from MBNA, one saying they are dealing with my complaint (I whinged about Aegis being useless) and I assume they are dealing with UK and USA law question. I also keep receiving various notices by post email and telephone. I keep asking them to send it via Optima since they are "instructed". Yesterday I spent an hour on the telephone with a lady at MBNA who again claimed they had never lost a case, was unclear about the UK USA thing, accused me of being rude everytime I attacked them, would not answer my questions, and when she made comments refused to put them in writing (until the end - but we'll see what transpires) stating that they are a "Telephone Bank" - pah! When I suggested that if they were to take Legal Action they needed a paper trail she dismissed this. My point is I won't be bullied on the phone, and it seems that I am unusual in that respect, as soon as I attack and catch them out (lots of times) I am accused of being rude or wasting time thier time - charming.

 

Sorry about the long post but I need some help with what to do next. I cannot afford the upfront fees for someone to look at what MBNA claim is compliance with the Sect 78 request, nor do I understand this myself. Can someone take a quick look, and am I even in the correct section of the forum? Please, what should I do next?

 

Cheers

 

Chirpy

[wycombe]

You are making problems for yourself by attempting to deal with them on the phone. Inform them that all further contact regarding the account should be in writing only. Then you will have a paper trail of what they state and not telephone conversations they will probably deny took place or will state were misinterpreted by you.

 

First thing to do is get a SAR off to MBNA for all the documentation they hold on you - cost £10 and they have 40 days to comply. Then if they do issue a Summons you will already be on the road to getting the documentation you need to fight them.

 

Also - very important - keep all copies of correspondence from them particularly any Default Notice when they decide to issue you with one (keep the envelopes). You will see the importance of this if you read up on other MBNA threads on here which is highly recommended so you will have a good idea of how MBNA operate. You will notice a pattern to their cases where they will chase you through the system using either Optima or Reston's. Their eventual target being a Charging Order on your property.

Edited August 24, 2010 by wycombe
typo

[dx100uk]

first of all stay off that phone.

 

NEVER EVER speak to these fleecers concerning your debt by that method.

 

time to get reclaiming me thinks

 

a 'rear-off slip' is NOT a CCA.

 

send the A/C in dispute letter and cease payments.

 

dx

[Chirpycat]

first of all stay off that phone.

 

NEVER EVER speak to these fleecers concerning your debt by that method.

 

time to get reclaiming me thinks

 

a 'rear-off slip' is NOT a CCA.

 

send the A/C in dispute letter and cease payments.

 

dx

 

DX Thank you so much for replying so quickly - you wouldn't believe what a relief it is to talk to somebody understanding.

 

Actually I quite like talking to them on the phone - simply becuase I exasperate them and I am happy to stay talking for a couple of hours at time going in circles - it wastes their time LOL

 

However the advice you have given will be taken. I will stay off the phone. The only thing is they have asked for a financial hardship statement - they claim tha this gives them the ability to freeze interest and charges and try and settle the account somehow. I sort of assume this is a reasonable request from them and perhaps we'd better at least do that - or are they just fishing for financial info?

 

The tear off slip is the bottom third of an A4 sheet printed both sides - it was immediately under a balance transfer request and looks as if it was the original app form to me.

 

Sorry to be thick - what is "A/C"? Also is there a template of such a letter and where would I find it? (Sorry new to forum, and new to forums in general)

[Chirpycat]

You are making problems for yourself by attempting to deal with them on the phone. Inform them that all further contact regarding the account should be in writing only. Then you will have a paper trail of what they state and not telephone conversations they will probably deny took place or will state were misinterpreted by you.

 

First thing to do is get a SAR off to MBNA for all the documentation they hold on you - cost £10 and they have 40 days to comply. Then if they do issue a Summons you will already be on the road to getting the documentation you need to fight them.

 

Also - very important - keep all copies of correspondence from them particularly any Default Notice when they decide to issue you with one (keep the envelopes). You will see the importance of this if you read up on other MBNA threads on here which is highly recommended so you will have a good idea of how MBNA operate. You will notice a pattern to their cases where they will chase you through the system using either Optima or Reston's. Their eventual target being a Charging Order on your property.

 

Thanks also Wycombe - next time they phone I will simply request that they put it in writing and hang up. I will also email them with this request and write to them. Thus far I have not kept default letter envelopes but will from now on. As I say they do change what they say on the phone - sometimes in sentence. In my SAR request I will demand any recordings that exist.

 

I am very familiar with the Data Protection Act and will do a SAR request. I successfully got a big insurer in big trouble over the same issue. Should I issue the SAR to MBNAor should I go through Optima, since they have stated in their letter that they have been "instructed" (which technically they haven't) but it would be reasonable for me to deal with them rahter than MBNA, or will this add layer for them to get out of the request?

 

Cheers

 

CCat

[miss muppet]

Thanks also Wycombe - next time they phone I will simply request that they put it in writing and hang up. I will also email them with this request and write to them. Thus far I have not kept default letter envelopes but will from now on. As I say they do change what they say on the phone - sometimes in sentence. In my SAR request I will demand any recordings that exist.

 

I am very familiar with the Data Protection Act and will do a SAR request. I successfully got a big insurer in big trouble over the same issue. Should I issue the SAR to MBNAor should I go through Optima, since they have stated in their letter that they have been "instructed" (which technically they haven't) but it would be reasonable for me to deal with them rahter than MBNA, or will this add layer for them to get out of the request?

 

Cheers

 

CCat

 

MBNA CC cat and get ready for the ever increasing phone calls at which point you send them the harassment letter. Also do not do an income/expenditure form for them, they have no right to this, only the court can order you to do this. Have a look in the legal successes forum as to what is likely to follow later.

[Chirpycat]

MBNA CC cat and get ready for the ever increasing phone calls at which point you send them the harassment letter. Also do not do an income/expenditure form for them, they have no right to this, only the court can order you to do this. Have a look in the legal successes forum as to what is likely to follow later.

 

Thanks Miss M, Strangely I have just found the Harrassment letter and will send it to them now. I will look at the legal successes area. The only thing I am a little stuck on is what to do re the Sect 78. Someone suggested the A/c in Dispute letter, and I assume this is the response for the failure to prvide me with a CCA. My problem is I cannot find the A/c in dispute template in the library...any pointers?

 

Cheers

[dpick]

Hi this is a copy of the account in dispute letter I used.

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 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

 

dpick

[Chirpycat]

Hi this is a copy of the account in dispute letter I used.

 

 

 

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 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

 

 

dpick

 

Excellent - Thanks Dpick - I will just check the stuff they sent before I make an idiot of my self.

 

I have just noticed that on the back of the tear off (photocopied) that there are sections 1 and 2 of the T&C then there are a further 4 sides of printed A4 purpurting to be the continuation of this tear off. It says at the top "Please Refer to your Credit Agreement for Conditions 1 &2". This is a print out and not a photocopy - at the bottom it has MB 01/02. I am worrying now that this has all the required info. The reverse of the tear off has interest rate for retail at 15.9APR but not anything for actual % rate. Also the table states that it is basically an illustration and the actual rate depends on credit limit but does not tell me what my specific interest rate or credit limit is - though all the listed ones for retail transactions are 15.9%APR. The T&C states how you should pay monthly payments and what the minimum is is % terms etc.

 

I am now worrying that this is in compliance of the Sect 78 bit? However the tick in the box is not mine - and I have no proof that at the T&C's come from 2002. Further, originally I thought this was a Beneficial Bank Card - but there is no mention of this name anywhere in the forms or T&C's......??

 

 

Would it be better to post it up so people can see - just to make sure.

Edited August 24, 2010 by Chirpycat

[wycombe]

It is always a good idea to post up copies of any documentation you refer to so peeps on here can see what you refer to to. Often they will also find useful titbits you miss that will help you when the time comes! Make sure you remove all the personal identifying bits first - but do leave the dates as they can be important particularly in relation to Default Notices.