Can u help? Opinion on MBNA default notice needed

[Roo2c]

Hi all,

 

Can anyone offer advice? Unfortunately in autumn 2009 I got sucked in by Kerobo Claims and signed up for Kerobo Claims to investigate my Abbey credit card (which I took out in the 1990s). Kerobo wrote to Abbey several times asking for the original CCA. Abbey didn't respond so in April 2010 Kerobo advised me to stop making payments to Abbey and advise Abbey that the account was in dispute. Kerobo Claims was then banned by the MOJ from operating in September this year. So I am now picking up the dispute with Abbey (MBNA).

Despite several requests from me, Abbey have still not provided a CCA. They said in a letter dated 20th October 2010 that they were "not able to comply with my request" and "for so long as this continues we will not issue court proceedings against you", however they would report me to the credit reference agencies and possibly lodge a default against my name. I have also asked them to explain why they started charging me PPI as I would never have agreed to this (they have completely ignored this request).

I have had Aegis contact me and at one point Abbey handed my details to a DCA who called me once but then seemed to have handed me back to Abbey.

The latest letter is entitled Default Notice Served under section 87(1) of the Consumer Credit Act 1974. I have scanned and attached the letter. Would you mind taking a moment to read it?

 

Abbey NOD0001.pdf

 

What should I do?

Are Abbey asking me just to make a payment towards the arrears and that will be it? I can't make out what exactly the "breach" refers to.

Initially I have written back saying that as there is no CCA they can't do anything. However, I have read that they can serve a default and that it will stick for 6 years. But I can't see a date in the letter saying when the default applies from (do you think this is another MBNA bluff?).

I want to start my own company soon - how will that affect me when I want to open a business account? My credit rating should be OK apart from this.

Would I be best off to offer them a full and final offer or does that weaken my position with them? I would only be able to get together about 2,000 for a F&F.

 

Would be really grateful for any advice here, am struggling to make sense of this. Am skint having been ripped off by by cowboy builders 3 times in a rowin the last 4 years so could do without a court case. Many thanks and merry Xmas!

[Roo2c]

Hi - can anyone help me with the above? Would be really grateful for any help...

[donein]

Hi

 

I have had a quick look at teh default notice - but what is the date of the letter?

 

Secondly, as I said only had a quick look and I am no expert.

 

However, without the date of when the letter was sent it is difficult to ascertain whether or not they have given you adequate time to resolve the breach. You should bear in mind that I believe Amex have just won a case in regards to the '14 days' timing so that alone may not be the best defence, although I also think an appeal is being sought.

 

If they are taking you to court then perhaps you are better defending on unenforceability (s.61/s127) depending on agreement - which they will need to supply / reconstitute.

 

have you read the recent OFT guidelines relating to section 77/78 and the 'Carey' case - this may help.

[Roo2c]

Hi donein. Thanks for getting back to me. The date on the letter is 9th december 2010. Allowing them a couple of days it is possible that the 14 day rule may not have been breached as they are giving me until 30th Dec to respond.

However, you may find the following interesting. I have just checked my credit report and MBNA lodged a default against my account on 6th December. Yet they only sent the letter entitled Default Notice on 9th December. Surely this is a big no no??

 

On 5th Nov they wrote a letter demanding payment and mentioning they would lodge a default at the end of November (they've been threatening this for a long long time now), but did not say it was a NOD. What do you think?

 

Am just reading up on Carey, interesting stuff. Thanks for referring me to that. Sounds as if MBNA could get away with a fabricated CCA in court but needs to have original clauses and refer to my address at the time. Even I'd struggle to remember where I lived in 1996....

[donein]

Ok, a couple of questions;

 

have you actually received a copy of the agreement yet? I am assuming not.

 

have you communicated directly with MBNA since 'whatever the cmc did'

 

Have you sent them a SRA?

 

Have you sent them a further section 78 request?

 

The Agreement

 

I am guessing by the date you mentioned (1996) you applied by post? Can you remember the exact details?

 

Or perhaps it was from being stopped in the street/shopping centre/service station or poss airport?

 

Or maybe you rang from an advert?

 

I am also assuming you don't have a copy.

 

 

default notice

 

In answer to your question they are currently asking for the arrears.

i assume the outstanding balance is made up of charges.

Did you have any ppi?

 

i will need to check the date of the registering the default on your file.

 

 

Payment

 

remember I am NO expert, but I am of the opinion that you are within your right to withold payment until such time as MBNA rectify the breach.

 

Likewise, MBNA are entitled to request payment, register defaults etc. however, to enforce they have to take you to court. Equally, they must not take you to court if they are aware the agreement is unenforceable (According to the OFT)

 

 

Does the 9th until 30th allow the correct number of days to rectify the breach allowing for postage etc. you have 14 days to remedy the breach, but bear in mind Christmas falls in between so you could possible argue the timing in this instance was not adequate and you were put to a disadvantage. Risky perhaps.

 

Meanwhile, have a good think - do you have any old paperwork stashed away anywhere and remember until they rectify the breach they are also in default. perhaps have a read into default notices around this forum and send a letter reminding them they have not complied.

 

be prepared to receive a reconstituted version, but remember that in itself only satisfies their requirements under section 78 not in your case 127(3) and section 61/62

[donein]

One thiing I will say is that MBNA are not stupid which mean you have to be just as clever.

 

Know your facts and argue them well by sticking to the facts - don't let them side track you.

[Roo2c]

One thiing I will say is that MBNA are not stupid which mean you have to be just as clever.

 

Know your facts and argue them well by sticking to the facts - don't let them side track you.

 

 

Hi and thanks so much for taking the time to help me out with this. Festive greetings to you. I'm reading and reading lots of threads to try and stay on top of this MBNA thing. Hope I'm getting somewhere with understanding the facts! Just to respond to your earlier reply:

Have not received the CCA from MBNA. Have requested many times since Feb 2010. Kerobo would have originally sent the £1 payment at end 2009 / early 2010. MBNA admitted in October (via letter) that they could not comply with my request, yet in the NOD they refer to paragraph 8 of the credit agreements. I am writing to them again to request CCA, will enclose PO for £1 . Will also SAR them. Have pointed out (in my letter which I will send tomorrow) that the arrears in the NOD are wrong because of interest and charges applied since the account has been in dispute.

Have been frantically digging through old papers but cannot find any original agreements from my side although I reckon I took this card out either over the phone or in a branch. There is PPI on the acount - I have asked MBNA to come up with a copy of the agreement for this but they have to date ignored several request for this, hopefully the SAR should help here. I was a student when I took this card out so should never have had PPI. I would have never agreed to it anyway, I remember agreeing to card protection which is an annual fee and completely different.

The reason I've not questioned the PPI in all the time I've had the card is because I didn't use this account for many, many years until about 2 years ago. So as the balance was 0 there was no PPI to pay.

In May this year my case got handed to Aegis. Kerobo were still around at this point and wrote to Aegis so the case got handed back to Abbey. In autumn of this year (I think October), I had a call from a DRA regarding this case. I told them I couldn't talk over the phone, would they please write to me. Never heard from them again. Have had letters from MBNA since demanding payment, NOD etc.

Am hoping to somehow get them on the NOD - am gutted that they have lodged default with credit reference agencies as this will cripple me for years to come (mortgage, business etc). Have you any thoughts on the NOD process - if the NOD is faulty, how easy is it to get MBNA to retract this?

 

[Roo2c]

Hmmmmm................after reading a few more posts am thinking about just simplay asking for CCA and SAR but not giving MBAN the heads up that there is anything wrong with the charges in the NOD. Is this the bst thing? Then if they terminate the contract they will hv done so based on a faulty NOD and there's no turning back. Is this the bestway to go??

[donein]

Ok all i would do at this stage is this, simply send a SAR request. No need to CCA them again, they will only reconstitute the document and that won't help you. It is also not needed if they have written to state they cannot comply.

 

Send the SAR request then we can tackle the DN.

 

Make sure you send it recorded delivery with your £10 cheque.

[the_shadow]

A Default Notice is not required to post a default on a credit file, they are separate things, warning of filing a default IS usually required prior to marking it on your credit file but it sounds like they met that requirement when warning you it would be marked in default at the end of november.

 

A Default notice IS required to terminate the agreement however so they may be looking to terminate and sell it on at some point in the near future.

 

S.

[Roo2c]

Thanks the_Shadown and donein. I have set off request and will keep you all posted on the next move from MBNA