AK/Judge & Priestley - claimform - old MBNA card 'debt'

[out_of_the_red]

Hi all,

 

MBNA have finally decided to respond to my CCA request, 12+2 days was up on 31st January BTW, and the letter makes no sense to me. Are they trying to confuse me and hope I'll go away? I've stopped paying them as they failed to respond to the CCA request until yesterday and they've still not sent the correct details

 

 

TIA!!!

[42man]

Have you had a read of this ? - http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[out_of_the_red]

Yes I did previously but was unsure whether I should send that or the regular CCA request? Should I send them something different now?

[Guest dvdriley]

At some stage , if they want to enforce the agreement, they will HAVE to povide a signed agreement. Wait and see what they send you

[out_of_the_red]

So am I right in just holding off doing anything until I see if they send anything further? How long should I wait?

 

I've also received this months bill and they've charged me a fee for last months non-payment, I have now stopped paying anything to them, should I write to them regarding this?

 

Could someone please help me with this? As I say this months statement has a £12 charge for missing payment yet they have still not produced my CCA just the letter above.

 

Where do I go from here?

[All out]

I got exactly the same response from MBNA. Another Cagger has advised I send them a dispute letter. I am a bit nervous about this course of action.

[out_of_the_red]

Can anyone advise if the dispute letter is the way to go?

[All out]

OK, Here is what I am sending!

 

WITHOUT PREJUDICE

 

Dear Sir/Madam

Re: Account No/Reference No:

I write with reference to my recent CCA request under s78. However, what you sent me is not a copy of a properly executed agreement and neither does it contain the minimum requirements needed for a court to enforce it under s65 and s127(3) of the CCA 1974.

 

With this in mind I want to offer £xxx in full and final settlement of the account. This offer is made on the clear understanding that, if accepted, neither you or any associate company will take any other action to enforce or pursue this debt in any way whatsoever and that I will be released from any liability.

I also request that, if accepted, you will mark any entry on a credit reference agency file relating to the above account as "satisfied" in full, and that any default and/or adverse data is removed from such entry.

Payment can be made within 5 days of receiving your written agreement of this offer and method of payment.

I look forward to receiving your reply.

Yours faithfully

[out_of_the_red]

I'm still wondering if you should send the dispute letter first before jumping in to make offer of settlement as that comes across as you having the means to keep up with payments.

 

Can someone please advise myself and All_out of what the best course of action is as we both seem to be at the exact same juncture with MBNA

[the_shadow]

You need to understand that no matter how much in the wrong these credit card firms/banks are they arent going to roll over and let you tickle their tummies...

 

As soon as you stop making payments they will start to harass and ring/write.. this will progress to possibly default and termination of the credit card and selling on of the debt to a debt collection agency.

 

You need to read quite a few of the MBNA forum threads, they are particularly nasty in the harassment terms.

 

Sending the account in dispute letter *should* stop interest being added and debt collection steps but it actually doesnt:-|. But what it will do is allow you to send a copy to the Debt collection agencies when they come a running and force the debt to be handed back to the original creditor.

 

As far as the full and final offer goes, put in the money has been raised by a family member and its a limited time offer as you have other creditors waiting for payment...

 

Hope this helps

[42man]

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

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 **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.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.

 

This limit has 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.

 

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.

 

 

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.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

[charliebubs]

Hi,

 

I'm taking on MBNA regarding two credit cards that I have with them. I'm sure my response will be the same as yours when it comes (their 12+2 days is up incidentally)

 

I have read loads on this site and have come to the conclusion that I won't stop paying the minute they don't supply the CCA (i.e. now) as there is always a chance that they do have it stored somewhere and as soon as they produce it the debt becomes enforceable again and I would be liable for all the back-payments and interest and charges that I had missed.

 

Each to their own, of course, but personally I wouldn't have stopped paying yet.

 

I'd send them the letter above first. If you still don't get a CCA I'd then do a SAR and then, if still no joy, a CPR 31.16. That way, you are exhausting all avenues to ensure that they ABSOLUTELY DON'T HAVE an enforceable CCA before you stop paying.

 

Then they are unlikely to take you to court, as far as I understand, because they won't be able to produce an enforceable CCA.

 

You also need to remember that just because the CCA isn't enforceable doesn't mean the debt isn't valid. Even if (and that's a big IF) they admit that they don't have an enforceable CCA the debt will remain on your credit file in most instances.

 

Good luck.

 

I shall keep an eye on your thread!

[the_shadow]

Account In Dispute

as you are aware section 77(6) states:

 

Think this should read Section 78(6)

 

Section 77 is fixed loans

Section 78 is running-credit accounts

[All out]

If I send the settlement letter and they refuse does it mean that I can still follow the dispute letter, SAR process etc?

[42man]

Thanks for that PMW..i'll give you some rep when I have some to spare !!! much appreciated...

[the_shadow]

Thanks for that PMW..i'll give you some rep when I have some to spare !!! much appreciated...

 

No probs, I made the mistake myself when sending a t&c not enough letter:eek:

[charliebubs]

If I send the settlement letter and they refuse does it mean that I can still follow the dispute letter, SAR process etc?

 

Personally, I wouldn't offer a settlement yet. You need to make absolutely sure that they don't have a CCA somewhere that they could pull out of a hat later on.

 

I'd do the SAR first, then the CPR, then maybe make an offer..........

 

Just my opinion

[All out]

Thanks, Shall I also send the dispute letter?

[charliebubs]

Thanks, Shall I also send the dispute letter?

 

There is a discussion somewhere on here in another thread about what constitutes an account "in dispute". I'm not sure where it is, so you'll have to have a read around, but the gist of it is that the loan/credit card companies will only class an account as in dispute if there is a dispute about the balance of the account, nothing to do with whether or not there is a CCA.

 

If you stop paying under what you class as a "dispute" you could find yourself in trouble.

 

I'm sure someone with more knowledge can add more, or provide a link, maybe 42Man.

 

Hope that helps.

[out_of_the_red]

Thanks everyone for the info.

 

I am happy to share this thread with All_out so please drop any info for them in too as it seems we are both at the exact same point

 

I've only missed one payment as they failed to respond to my CCA request by 31st January and yesterday I received this letter.

 

Am I best to reply with a dispute letter and send it to this company as well as MBNA?

 

 

There is a discussion somewhere on here in another thread about what constitutes an account "in dispute". I'm not sure where it is, so you'll have to have a read around, but the gist of it is that the loan/credit card companies will only class an account as in dispute if there is a dispute about the balance of the account, nothing to do with whether or not there is a CCA.

 

If you stop paying under what you class as a "dispute" you could find yourself in trouble.

 

I'm sure someone with more knowledge can add more, or provide a link, maybe 42Man.

 

Hope that helps.

 

I'm getting rather confused because there seems to be some conflict in what is and isn't the correct thing to do when there is no response to a CCA request.

 

From what I have read on the forum a loan or credit card company is in default if they do not supply a true copy of the CCA within 12+2 days of the CCA request and as such the debtor is able to withold payment until they are sent the CCA. Is this not correct?

[42man]

Send this recorded to RMA (EDIT TO SUIT)

 

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be

resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

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

 

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

[out_of_the_red]

Thank you!!! Ok will get dispute letter sent to MBNA and this one to RMA

[42man]

Be warned RMA are watching this thread too....

[out_of_the_red]

Just removed the barcode off the letter too, just in case!

 

Forgive my ignorance but why would I be worried if they are? Please don't take that as me being rude just wondering what benefit it is to them

[charliebubs]

42Man - can you please respond to my earlier post here.................what are your thoughts about when an account is "in dispute"??

 

I agree with Out of the Red in that there definitely is conflicting advice on this site.

 

I have been reading the statutes behind what we are trying to achieve to make sure that I do the right thing. I personally won't be stopping payments until I am totally sure that they cannot and will not be able to provide a CCA. Because as soon as they do, if they do at a later date, the debt becomes enforceable again and I would be liable for any payments (and interest I think) missed.

 

What are your thoughts 42Man??????