MBNA - Link County Court Claim - ** CASE DISMISSED**

[babybear39]

Oh bum...that'll teach me to read lol...sorry

[The_Grumlin]

Did you keep the envelope the DN came in as it is dated 22nd and gives 14 days to the 6th, but if you got it today then that is 9 to 10 days to remedy. I think makes the DN invalid to start with.

[manc1976]

Did you keep the envelope the DN came in as it is dated 22nd and gives 14 days to the 6th, but if you got it today then that is 9 to 10 days to remedy. I think makes the DN invalid to start with.

 

There is no date on the envelope

 

It looks like a pre-paid TNT Post one

[manc1976]

Here is a question for you all

 

Do MBNA have to send me a default notice before it is passed to a DCA (Link)??

[robcag]

Hi manc1976

 

I've received 2 of these 'Default Notices' from our good friends Link today, for 2 alleged MBNA debts which I CCA'd Link for about 10 months ago and for which they still haven't come up with the goods (therefore I stopped my token payments at that time).

 

One dated 20/9/08 and the other 22/9/08, both arrived together. I was going to start a thread entitled "Link sending out Joke Default Notices" or suchlike when I came across your update to this thread.

 

Ok, ATM it's easier for me to say this as I've not received any agreements from Link, valid or otherwise, (whereas you have) but IMHO the DNs are worthless cr@p.

 

I've had a quick look back through your thread to remind me of what has happenend so far.

 

First of all it seems you have to decide whether to call their bluff regarding the alleged agreement, which ATM hinges on whether or not the 2 documents you uploaded at post #18 are from the same document. There does not appear to be anything linking the 2, i.e. no references on the signature document to 'terms overleaf' or similar, and you have also said the reference numbers in the bottom right-hand corners are different, possibly/probably suggesting that the 2 are indeed from seperate documents.

 

By the way, did you ever establish if MBNA ever sent you a DN (possibly by sending them a SAR ?

 

Then moving on to the alleged DN you have received today from Link, yours (as do both of mine) refers to an Agreement No. XXXXXX (a 6? digit Link ref no, not the actual credit card number), well I'm sure you never had an agreement with Link to provide you with access to funds, I certainly didn't! And if Link are claiming to be the beneficiaries of an assignment, then why are they stating MBNA "are still a creditor"?

 

The next part definitely smells strongly of Bovine Excreta. Can you say what clauses 1b and 8 of the agreements (note the plural on your letter)are from the documents previously supplied? Are those clauses even present? In my case (don't forget they haven't supplied any 'agreements' to me) one of the alleged agreements was formerly a Bank of Scotland RSPCA affinity card which was taken over by MBNA and substituted with their own vaguely similar affinity card (can't remember the name right now), so I guess it would be pretty safe to say that if there were any agreements, then it would be a mighty big coincidence if the aforementioned clauses (if present) were the same from 2 entirely unconnected (AFAIK) banks.

 

Also, in stating the nature of the breach, I'm pretty sure (but again, I stand to be corrected) that they would have to state the amount of the alleged missed payments.

 

Then, as already stated further up the thread, there is the not insignificant matter of the time allowed to remedy the 'default', being less than 14 clear days between service and date for remedy.

 

I would say the alleged DN is only really fit for toilet paper, but as I already have plenty, I think I'll file it.

 

No doubt other more knowledgable opinions will come, and I stand to be corrected on what I've said, but in my case it won't make me pay them a penny.

 

Cheers

Rob

[manc1976]

Hi Rob

 

Firstly thank you for the reply

 

By the way, did you ever establish if MBNA ever sent you a DN (possibly by sending them a S.A.R - (Subject Access Request) ?

Due to lack of funds, I haven't yet sent a S.A.R - (Subject Access Request) but I will be doing this weekend as it is payday early next week.

 

And if Link are claiming to be the beneficiaries of an assignment, then why are they stating MBNA "are still a creditor"?

I agree, the leter they sent me on 1st May stated:

As you are aware LINK FINANCIAL purchased your debt from MBNA EUROPE BANK LIMITED on xx August 2007

Can you say what clauses 1b and 8 of the agreements (note the plural on your letter)are from the documents previously supplied? Are those clauses even present?

On the documents that Link sent me from MBNA there is no Clause 1b and Clause 8 is about "The APR does not take into account any of the following alterations" which goes on about their right to change the APR

 

So if they are talking about sections of the MBNA Credit Card terms and conditions, then they have failed in providing these as apart of my CCA request along with a Statement of Account!

 

So to me that means that they are still in default of my CCA request and that they cannot issue a DN whilst an account is in dispute.

 

Am I correct in thinking this???

[robcag]

Hi manc1976

 

Further to the above, Jeff2000 has also received a so-called DN from Link today, as reported here; http://www.consumeractiongroup.co.uk/forum/general-debt-issues/58913-mbna-link-financial-7.html#post1732770

 

I forgot to mention, and in case it wasn't clear, my DNs were the same as yours word for word.

 

Except for 1 little detail I noticed which was different between my 2. The earlier one (written 2 days before the later one) had the letter 'A' missing form the beginning of the word ASSIGNMENT near the beginning. Obviously this was a new 'form' letter which the Link monkeys had produced as their latest big idea. It seems one of the chimps noticed the missing letter 'A' after some letters had been produced and corrected the mistake. But hey, he probably got an extra banana for his trouble .

 

Cheers

Rob

[Jeff2000]

Hello all,

 

 

I thought I'd sub here, as this is a similar situation to mine!

 

 

Best wishes, Jeff.

[manc1976]

Hello all,

 

 

I thought I'd sub here, as this is a similar situation to mine!

 

 

Best wishes, Jeff.

 

Hi Jeff

 

I have had a good read of your thread too and will keep an eye on it to see how you progress.

 

They seem to be firing these default notices out willy nilly this past couple of weeks!!

[winny14]

subscribing

[wotabunny]

Hi Manc

 

You are on dangerous ground - I would resume your payments with a note that saying you do not acknowledge this is an legally enforceable debt but in case a court should rule that it is you are resuming your payments (and pay any arrears).

 

Link have a new wheeze as they are not the creditor (only they have an interest in the debt ) they do not have to provide a CCA.

 

This may?????? be legally correct but it is quite ludicrous. Its like me saying the prime minister owes me a £1m and I sell you an interest in the debt - you then sue the prime minister but you tell the court you don't have to prove the debt with a CCA because your not the creditor.

 

If I were you I would request a CCA from MBNA double quick before Link get a chance to take you to court.

 

Note I am not legally qualified and this is just my opinion

[robcag]

 

So if they are talking about sections of the MBNA Credit Card terms and conditions, then they have failed in providing these as apart of my CCA request along with a Statement of Account!

 

So to me that means that they are still in default of my CCA request and that they cannot issue a DN whilst an account is in dispute.

 

Am I correct in thinking this???

 

Hi manc

 

These DCAs seem to think they can do what they like, and do it.

 

Something else I noticed earlier and forgot to mention, you selected the PPI option on your application form. This may be an angle of attack worth considering if you had ever needed to claim on it but were refused for some reason, as if you were mis-sold it you can claim back the PPI payments you have made in some cases. An example would be if someone was sold PPI and at the time they were a student or unemployed.

 

Cheers

Rob

[robcag]

Hi Manc

 

You are on dangerous ground - I would resume your payments with a note that saying you do not acknowledge this is an legally enforceable debt but in case a court should rule that it is you are resuming your payments (and pay any arrears).

 

Link have a new wheeze as they are not the creditor (only they have an interest in the debt ) they do not have to provide a CCA. As has been said many times all over the debt forums, they may argue that they have satisfied a CCA request by producing a signed application form or even a cobbled up reconstruction of an alleged agreement, but they cannot prove the debt in a court of law without producing a properly executed agreement, i.e. containing the prescribed terms in accordance with the regulations. No agreement = no enforceable debt.

 

This may?????? be legally correct but it is quite ludicrous. Its like me saying the prime minister owes me a £1m and I sell you an interest in the debt - you then sue the prime minister but you tell the court you don't have to prove the debt with a CCA because your not the creditor.

 

If I were you I would request a CCA from MBNA double quick before Link get a chance to take you to court.

 

Note I am not legally qualified and this is just my opinion

 

Cheers

Rob

[manc1976]

I think I need to decide what am I am going to do this weekend so that I can get a letter sent out to them on Monday

[wotabunny]

Hi Manc

 

You need to read the postings on MBNA - LINK FINANCIAL as well.

 

Some people who seem to know a lot more than me say I'm talking a load of rubbish - I suggest you ask advice from them.

[robcag]

Hi manc

 

I don't know if you've seen this thread (I've not finished reading it yet) http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/161230-have-dca-right-process.html

 

but it might be a way to go, I'm certainly considering it due to Links actions, although previous Data Protection notices I have sent to Marlin have met with BS replies. Still, worth a try though for the price of a recorded delivery letter.

 

I checked my credit report a month or so ago and I noticed 2 things about my alleged MBNA debts.

1. At around the time that the debt was sold to Link;

a) MBNA stopped registering monthly 'Default' updates.

b) The amount of the 'default debt' was set to zero, but the full amount is still listed as a delinquent balance.

2. 5 or 6 months after the time of the alleged assignment;

a) Link started registering a monthly 'Default' status (which also states that a DN has been issued

- lies until yesterday

).

b) The whole amount of the defaulted balance has been transferred to the alleged debt to Link (according to the Link info).

I'm also wondering whether threatening and/or taking legal action against Link might be worthwhile (I haven't instigated any legal proceedings before so I'm a bit cautious about that ATM :-|). The aim of this would be to get Link to remove the information they have registered against me, but I would also like to sue them for compensation, possibly based on Kpohraror v Woolwich Building Society - [1996] 4 All ER 119 (I think!).

 

I think I will have to read up on that possibility!

 

Cheers

Rob

[styeffo]

I have a thread elsewhere:

 

http://www.consumeractiongroup.co.uk/forum/general-knowledge/161650-credit-card-urgent-advice.html#post1733620

 

I too received a DN yesterday, and thus according to it being dated 20th September but termination date being Oct 4th, i assumed this was the 14 days.

 

Seeing that i got this yesterday, the 26th does this make it invalid?

 

Any advice please?

[roysta]

I am hijacking this thread (sorry) as I have also received the same letter from Link about the DN, I was wondering if I would be best carrying on paying them the token £1 a month whilst waiting for the CCA? I have stopped paying it because I thought that the account was now in dispute cos of the CCA, I am in a bit of a mess because I recently came into some money but silly me told Link (a few months ago) that I was gettiing some money and that they will be paid off soon, however, since then, I have told them that actually, I didnt receive the money I was expecting but I offered then £1200 (that my aunt gave me) as F&F but they refused, I have 2 questions that are worrying me.......

1. If they take me to court, will I have to disclose all my bank statements? i.e. will the judge know that I have had a large sum of money (I will not be having it in my account for long)

2. Is it best for me to continue paying £1 a month

3. Because I told Link that I was coming in to money, do you think they will definitely take me to court, thinking that I have lots of money? Even though the lump sum was not that much anyway!!

Please advise me, the stress is causing me sleeples nights

Edited September 27, 2008 by roysta

[wotabunny]

Hi Roysta

 

I think other people can advise you better than me.

 

I suggest you post your request for help on the other threads with Link or MBNA in the name.

 

Hopefully someone who really knows will help you.

 

If nobody helps you in time come back to me and I'll give you my opinion but I am not legally qualified!!

 

Wotabunny

[manc1976]

Right, have decided that I am going to claim that I did not receive the CCA information that they have sent me. They were missing the Terms from when the account was opened and no statement of account.

 

Here is what I have so far and comments are welcome!!

 

FORMAL COMPLAINT

 

Client Reference: xxxxxx

 

 

Dear Sir/Madam

 

I am responding to your letter dated xx September 2008, which I only received on xx September 2008. Your comments have been noted.

 

If Link are claiming to be the beneficiaries of an assignment, then why is Link stating MBNA "are still a creditor"?

 

You have stated that the reference agreement number is xxxxxx and that you are acting on behalf of MBNA Europe Bank Limited. The agreement number does not correspond with anything relating to any alleged MBNA credit card. I have no such agreement with Link to provide me with access to funds.

 

In the default notice letter you also claim that I have breached clauses 1b and 8 of the agreements which require me to make payments at stated times. As I have no agreement with Link and you have failed to provide information requested under Section 77/78 of the Credit Consumer Act 1974 relating to the alleged MBNA account, then I have no way of checking that these clauses are relevant to your claims.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the xx April 2008 I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

On xx April 2008 a member of your staff signed for delivery of my written request and I have an electronic proof of delivery showing their signature and the date.

 

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the xx April 2008 I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

And

 

(b) If the default continues for one month he commits an offence.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

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

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

These time limits expired about 3 months ago and by sending me an overdue notice in August and the default notice in September breaches OFT Guidelines and is also a breach under CPUTR 2008.

 

I am sure that I do not need to remind you of your legal obligations under the Consumer Credit Act 1974, and the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

If you are unsure of your legal obligations, please seek advice from either your legal department or you local CAB office.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

Now , I was also thinking about paying them this month, just in case this tactic doesn't work, then at least if it did go to court, the judge could see that payments were made.

[AndyOrch]

Right, have decided that I am going to claim that I did not receive the CCA information that they have sent me. They were missing the Terms from when the account was opened and no statement of account.

 

Here is what I have so far and comments are welcome!!

 

Now , I was also thinking about paying them this month, just in case this tactic doesn't work, then at least if it did go to court, the judge could see that payments were made.

 

You refer to section 77 is this a loan? if not and is a Credit card amend to section 78.

 

Also 30 days is now not applicable

 

Regards

 

Andy;)

[manc1976]

Thanks Andy, will amend the letter.

 

I have just found this on another thread which will apply to the DN they sent me (Just realised that Andy posted this, lol)

 

If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then during the period of his failure to provide the notice (i.e. from the date that it was required to be given until the end of the day on which it is eventually provided), he is not entitled to enforce the agreement.

There is no notice of sums in arrears on the DN that Link sent!!! Edited September 29, 2008 by manc1976
Add extra text

[AndyOrch]

Hi Manc1976

 

Yes thats from my thread i just posted.are you saying that there are no figures at all on the Default Notice?

 

Regards

 

andy

[manc1976]

 

 

 

The only figure is the TOTAL amount outstanding if I was to pay it all in one go, nothing about the amounts that are in arrears

[AndyOrch]

Hi manc

 

Ok full amount being requested to breach the Default Dont forget that what I have posted only comes into effect from 1st October.

more importantly the refence to on or after the 6th Oct this agreement will be terminated.So subject to when you recieved the Default notice hope you retained the envelope and the dates specified not only have they failed to request the arrears they are also terminating the agreement.Link are well known for this and need to be reeducated in consumer law on how to issue a Default Notice.Once terminated it is no longer.Very difficuilt to isuue litigation on a terminated Agreement IMHO:D

 

Regards

 

Andy;)