MNBA Help Please

[flowerchild]

MBNA have now officialy failed to comply under a section 77/78 request for a signed agreement.

 

I have been told by a solicitor that if they fail to comply within 30 days, it then becomes a criminal offence!!

 

Well after several letters since the 24th October, and a final letter sent today, MBNA now dont have a leg to stand on!!

 

I have reported them to the Financial Ombudsman Service, and I have written to the Office of Fair Trading.

 

Basically I have failed to have been given a signed credit agreement and its now gone over 30 days!!

 

Why cant they just admit they dont have one to save all this aggravation!!

 

I have also contacted a company called Bank Smart who are based in London and they state on their terms and condition that it becomes a criminal offence within 14 days!!

 

They are going to check my credit agreement to see if its enforceable or if MBNA have one in general!!

 

As much as I share your hatred of MBNA, you're wrong! s77/78 is all CIVIL LAW, nothing to do with a criminal offence! For it to be a crime you'd have to be supplied with a document that's clearly a forgery. The information you've been given is completely wrong!

 

I don't know what you were trying to achieve with your request but if you are trying to put the account in dispute, then it should work in your favour, at least for the time being.

 

MBNA have been buying accounts from all and sundry so each account is different, I'm also an MBNA debtor with no CCA by the way.

[flowerchild]

Once you've got it out of your head you're dealing with a criminal offense on their part, you'll need to provide a bit more information on this account:

 

When did you open it?

When did you last pay?

Have you been defaulted?

Are you on a DMP/making token payments?

How much do you owe?

What's the history of the account, i.e. did MBNA buy it from another lender? if so, who?

How did you obtain the account? Did you apply online? over the phone? filling out a 10 minute application?

What was MBNA's reply to your CCA request? Did they say they don't have one? That they are looking for it? that they need more time?

Are you being chased by a DCA for this debt? Who?

[flowerchild]

Thirdly, if you're looking at unenforceability, you need to keep cool! Relax! You can't obtain a 'defective' agreement, take your creditor to court and expect to win! That's no longer the case! BankSmart is a claims management company, anyone with any sense, certainly anyone on this forum, would advise against using any of them! You WON'T win an unenforceability case against a bank as a CLAIMANT, even with the help of a CMC! The Rankines, a couple famous for dealing with such claims was actually banned from using the courts for that purpose nearly two years ago...

 

What you can do is hope they can't produce anything of substance, which is not that uncommon when it comes to MBNA!

[flowerchild]

Well, MBNA have not produce a CCA for over 30 days now!!

 

The FOS said to me very clearly its an offence not to produce a CCA within 30 days of requesting it!!

 

Bank Smart are NOT a claims management company; they dont charge upfront fees to check agreements, etc etc.

 

Quote from their website: Bank-Smart currently offers claims management services for the following types of claim:

 

I have written 2 letters to MBNA putting the account clearly in dispute and they have ignored my letters altogether; I was told by the FOS that because they ignored my letters this will go more in my favour!!

 

I sent MBNA a £1.00 statutory fee that they requested on the 4th November, still no sign of a CCA!!

 

MBNA are a bloody joke I say!!

 

Still not clear what you are trying to achieve with all this and why you are so upset! Do your homework and you'll find plenty of sources telling you no-one can win an unenforceability claim as CLAIMANT any more! Regardless of whether they charge you up-front or not, if that's the reason you're so desperate to get your hands on your CCA, forget it!

 

Unenforceability (UE) can still be used but only as a defence. What happens if MBNA send you an agreement that's 100% enforceable? Once they've done that they can go to court and get a CCJ against you!

 

Without the said agreement, they couldn't get judgment against you so are better off as you are! With a bit of luck they will NEVER find it, that's so far been the case with me, in which case they can't enforce the debt in court. If you want to go down the UE route you just have to sit tight! No point shouting about not having received a CCA, your problems will begin if and when they do send you one!

[flowerchild]

Claire I"m sorry but you still have the whole enforceability thing backwards! ENFORCE = get CCJ against you! That's what they can't do without an agreement thus debt is unenforceable - for now! Failing to comply within the timeframe does not make the debt UE forever just while they are in breach! As your request was very recent you can't be sure they won't be able to find it or do a good recon! You never really posted what their reply was! With me I have letters stating they don't have it nearly 2 ys ago - that's unenforceable but I still have another 4 ys to wait for SB! Even when a debt is UE they can still pursue, threaten & even issue a claim hoping to obtain default judgment!

 

How can '3 companies chase MBNA'? They don't have to answer to any 3rd parties other than the official bodies! You can't take them to court for not providing an agreement however you could do so to reclaim PPI if you had it but that's a totally different subject.

 

These days you don't go to court hoping to get your debt wiped off as the judge won't rule in your favour. You just try to stay out of court and get all your ducks in a row in case they issue a claim. If THEY do without the right paperwork then you may well win provided you build a suitable defence. That would provide the closure you seem to be after but it can be tricky and in your case probably a year or more away (if at all!). If you have stopped paying then the SB clock is already ticking…

[flowerchild]

Have you sent MBNA a reminder? If not, you can send them this:

 

Dear Sirs

 

Account No/Reference No: XXXXXXXX

 

I refer to my letter dated XX/XX/XXXX in which I made a formal request under the Consumer Credit Act 1974 (CCA1974) s.77-s.79 for a true copy of the regulated agreement referred to in the above account number. You are reminded that you are obliged to supply this under s.189 whether you are the original creditor or not. I also enclosed the statutory fee of £1.00.

 

To date you have failed to comply with my statutory request and have defaulted in respect of this account. Additionally this alleged agreement is unenforceable until such time as you come out of default or enforced by a court of law. If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

 

make the debtor pay the debt before they're supposed to

get a court judgment against the debtor

 

[OBVIOUSLY YOU HAVE TO DELETE THE FOLLOWING IF YOU ARE NOT PAYING]

As this account is clearly unenforceable, I am considering cessation of payments toward this account, so I do expect you to respond within the next 14 days or you'll leave me with no option but to stop paying into the account, until such time you do comply.

 

Yours faithfully

[flowerchild]

I opened the account in 2009, so am gutted its not before 2007.

Any advice if its legal without a valid signature??

 

2009? Forget it! It will be 100% enforceable as s127 which is the one that prevented the courts from enforcing 'defective' agreements was repealed in 2007!

 

Frankly, if your account is that recent, you shouldn't have bothered trying for unenforceability as it only has a chance of working pre-Apr 2007!

 

Sorry to have to say the above, given that I'm no MBNA fan either!

[flowerchild]

Thank you flowerchild you have been brilliant.

 

I do have a Halifax Credit Card I took out in 2006 which am having that looked at.

 

Do you think its a good idea to do a balance transfer from MBNA onto Halifax!!

 

That would be your decision, it would be against the rules of this forum to advise someone to transfer a balance with the intention of defaulting it, if you see what I mean...

 

Apart from that, there's no guarantee the Halifax 2006 will be unenforceable, not everything pre-2007 is! The only way to find out is to go through the documents, with older accounts or those that have been sold several times there's always a chance they may not have an agreement but not very likely to be the case with a 2006 account!

[flowerchild]

I finally received a so called "copy of executed agreement" from mbna.

 

I am confused at this because of the following:-

 

a: Copy is of executed agreement taken out in 2009, this has been electronically signed, but not signed manually i.e. My signature is not present

 

b: A second agreement has been given to me with my new address, this agreement is unsigned and has not been electronically signed either

 

also on the second agreement there appears to be no signature box either.

 

I am confused with mbna how can they provide me with a second agreement when i have not signed it with my new address??

 

Is this legal - very confused??

 

Please help!!??

 

Claire,

 

Unfortunately the answers you'll get may not always be what you'd like to hear! The answer to your query was not my personal point of view but a statement of the facts as they are and you can do your own research and will find nothing different.

 

In a nutshell: if your card was taken out in 2009 you can't really use unenforceability in your favour. I would like to be able to tell you otherwise as I myself have an unenforceable MBNA CC so I can understand why you would like to take this route but it won't work in your case because your account is just too recent!

 

You should also be aware that The Consumer Credit Act 1974 (Electronic Communications) Order 2004 states that ticking the box is the equivalent of a signature for online applications made after 2004. The document is here: http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=Consumer+Credit&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=996470&ActiveTextDocId=996470&filesize=59499

 

Hope that clarifies matters for you!

 

You will notice that not everybody gets taken to court for unpaid debts, however, should MBNA or a DCA start court action, you will not have a defense based on the issues you've posted. Everyone (including OCs and DCAs) knows about the changes to the CCA enacted in April 2007 and will use the age of your account to their advantage.

[flowerchild]

I can see how you feel about MBNA and their obscene interest, that's what made me default in the first place as suddenly the balance was going UP despite keeping up payments every month - the balance went over the limit because of their interest hike in 2009 and there was PPI on top! They also charged overlimit charges but I only went over limit because of THEM! I wrote to them and they came back with a load of poo so I just stopped paying them almost 2 years ago! :mad2:

 

MBNA ****ed me off soooo much I was even looking into a CMC like you (CCK in my case, ouch! ) just to get back at the b******s, I couldn't believe that, while the BoE dropped the base rate to nearly zero to stimulate the economy, these sharks were using the opportunity to line their pockets, knowing balance transfers were few & far between at the time! I was unemployed and most of my savings went down the drains just to keep up with payments, only to be swallowed up by their interest & charges! :mad2: :mad2:

 

So I haven't paid them a penny for two years and the account is UE as they have no trace of a CCA, they have admitted as much in writing...

 

So you see I fully understand your frustration with them, it's a shame UE doesn't apply to newer accounts as the Powers That Be decided to side with the banks when they passed the new CCA in 2006, knowing how useless and inefficient financial institutions were, they decided to repeal the section that made it possible to challenge their agreements...

 

Yes, you should consider a balance transfer if you have the option, why line the pockets of MBNA?

 

Best of luck!