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Set a Side today - unknown Arrows CCJ on old MBNA card 'debt'


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Hi everyone,

 

I'm sorry if this is the wrong place to post but I think I read somewhere to first introduce yourself in the Welcome forum. I am also new to forums, so hope I'm doing this correctly after having spent some time reading various threads, FAQ and how to's.

 

I read some information regarding the harrassment techniques used by MBNA which my OH and myself have also experienced. Of particular interest was the threads from past employees which then made us aware of how they treat their customers and that we were not alone.

 

It is my OH's account where they did the low introductory offer, increased the credit limit at various stages without solicitation and then increased the monthly interest rate dramatically. He also had missing statements, which they do not bother to re-send, and there never is a yearly APR figure on any statement we have received. When I rang to find out how much of the balance is at the balance transfer rate and how much is at the cash rate, they could not tell me. Also, I asked them why they never told my OH when they increased the interest rates, as his other lenders had done and asked if he would like to freeze the rate if he did not accept the increase, provided no more transactions until the balance is zero. MBNA told me they were not obliged to do this when I rang them November 2010 and I told them that's why people run into trouble with their extortionate rates and by not receiving statements so that people can see what they are doing with their fees and interest rates!

 

As I could see they were not really interested in helping with our new situation unlike other providers including our mortgage company which changed us to an interest-only mortgage, I told them I would be asking for the original terms and conditions as well as the CCA. He was not very happy about it as he was trying to get us to pay the arrears over 6 months, with no freezing or reducing of the interest rates or fees including for being over the credit limit, due to their charges and them accepting less than the minimum balance. I pointed out that the oustanding balance would still be increased over the 6 months, even though the arrears would be cleared. So how was this a help and he could not answer it.

 

We sent a letter to them by registered post in early December based on a letter template I think my OH found on this site, asking for the CCA, pursuant to s77/78 of CCA 1974. We included the £1 fee and also checked with the post office it had indeed been delivered the next day and it had been. We were due to pay a reduced amount, as we could not pay all the arrears or the now much higher minumum amount, by 31.12.10. (We had also paid less than the minimum the previous month or so, based on their verbal agreement and them taking the amount as we paid them by debit card.) However, we read somewhere that if they did not send the original and true signed CCA, along with the original terms, within 12+2 days, then the account is automatically in dispute and they cannot issue any default notice. As it was the Christmas period, we gave them extra time to give us what we asked for.

 

However, the same man who knew we were going to ask for the CCA emailed us to say we would be in default if we did not pay by 31 December. So my OH emailed him back to say he did not have permission to email him over such a personal and confidential issue and over his harrassment by ringing me constantly when he did not have permission to do that (and leaving silent messages). So we were going to complain to Ofcom and the Information Commissioner. My OH also wrote in the email, that as he had not received the CCA or a reply to his letter, then the account is in dispute and no default notices could be served. He asked the man to forward the email to their complaints and customer service departments, so that MBNA could send a reply regarding the CCA request and regarding our complaints of harrassment and confidentiality.

 

We received a letter dated 6 January 2011 from MBNA's Rachel Nixon, Customer Advocate Office Manager saying they will respond to the complaint with 28 days. We still have not received a reply to the CCA request, so presumably they do not have it as the account was open in the nineties. Despite the fact the email told them they could not issue a default notice until we have the original signed CCA and Rachel has indirectly acknowledged the email complaint (although she calls it a letter), we received a "Default Notice Served under Section 87(1) of the CCA 1974" dated 10 January 2011. It said my OH had to pay all the arrears by 31.1.11 to remedy this breach. (The notice was received on 13.1.11 by ordinary post but due to all the stress of having to deal with MBNA & their telephone harrassments, we both have been too ill to deal with this earlier.)

 

1) Does anybody have any idea as to what we should do next as we still have not received the CCA or any reply about it?

 

2) Should we stand our ground and refuse to pay anything until we receive the CCA? (I saw some posts on another forum and on this too about a recent case (Carey?) where a county court judge said a a CCA could be reconstituted rather than be an original or signed one but I do not know if this is a real case or fake posters really working for the institutions, giving advice to put others off from pursuing their basic rights of there should be a signed contract to prove there is an enforceable agreement.)

 

3) Has a default already been written onto my OH's credit file based on the notice served mentioned above and can anything be done to correct it, saying the account is in dispute and so it should not have been served?

 

3b) Also surely they should have given us 28 days notice of their intention to issue a default, based on what I read here, and telling us how many months in arrears we are, even though they had accepted a lower amount over the last few month?

 

3c) Did that man's email to us on I think 31.12.10, to say we had to pay today or else the account is in default today count as their notice, even when he did not have permission to contact my OH by email and my OH replied as above?

 

4) Since they accepted the lower amount by telephone, then were we technically in default for those months?

 

5) Can someone post the link of where your SAR template letter is as we do need to know what MBNA have been doing all these years including getting past statements?

 

6) I read somewhere that you should not accept their records only go back 6 years? Is this correct?

 

7) Should we just give them £10 postal order for their SAR letter reply and all documents? ie, not accept their demand of £10 or whatever per document, which could be expensive, given the account started in the nineties?

 

Thanks in advance for you help.

 

Best wishes,

 

DemandFairness

 

Forgot to mention, they say if the arrears is not paid by 31.1.11, then they can demand the whole balance and will take court action but they will not issue any more statements. Is this correct for demanding the whole balance and also for not issuing any more statements, as surely people need to see how a debt is accruing with their interests and fees?

Edited by DemandFairness
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Hi and welcome to CAG.

 

Sounds like you've been busy, but I can start you off on a couple of points.

 

Carey v HSBC was very much a real case which is one of a few that have moved the goalposts. http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html There are also a few discussion threads on the site that might help.

 

This is what the OFT have to say about enforceable agreements. http://oft.gov.uk/about-the-oft/legal-powers/legal/cca/unenforceable-credit-agreements

 

This link is useful for finding lots of info on the site including SARs. http://www.consumeractiongroup.co.uk/forum/content.php?609-Can-t-find-the-letter-you-want-Look-here

 

It's quite right that if an account is in dispute nothing should be put on your credit file, but I would suggest that you check with the 3 credit reference agencies and see what they all have on your records.

 

I should warn you that a lot of cases have not gone in favour of consumers, so ideally it's best to try and resolve this without going to court.

 

Finally I'll move your thread to the MBNA forum where hopefully you'll get more detailed advice.

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Hi Caro,

 

Thanks for the reply and useful links.

 

Thanks for moving the thread to the correct place. Hopefully now, I may get some answers to my specific questions from some people who have gone through a similar thing with MBNA. It's good to know your site has many motivating stories of the "little guy" fighting for fairness and justice and having the support of others on this forum.

 

BTW, I have read some of your and Bankfodder's posts and I'm glad I've found this site, as I had wasted my time on another forum which just had confusing and contradictory information.

 

DemandFairness

 

P.S., where can I check that I am subscribed to get email notifications when someone replies to my thread, as I only found out you had posted this by coming back onto the forum itself?

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Hi DF

 

I'm having a lot of dealings with MBNA.

 

You ask many questions and it would better to break them up into chunks for people to help.

 

In essence:

 

1. Purely technical defences won't get you anywhere: read Carey and McGuffick, but save and document everything to build an audit trail of lies and incompetence.

 

2. You won't keep a clean credit file so forget about it.

 

3. Offer what only what you can afford to pay on a sustainable basis; mine is £1 pm.

 

4. Challenge everything, especially relating to charges & interest thereon cross referenced to whatever crap T&Cs they have sent; Miss Marples wise, investigate inconsistencies.

 

5. When they refuse your reasonable offer and harass you, which they will, raise a formal complaint based on OFT guidance and rulings.

 

6. When they give their formal response (after 56 days) complain to fos within 6 months (there are tactics involved here)

 

And most importantly, decide your end game; if you have low income and no assets this is easy.

 

Hope this helps. have a think and read everything you can on here, it's a great site.

 

love

 

vic

 

Your PS Notifications go to whatever email address you supplied when registering with CAG

Edited by victoria_siempre
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Hi V_S,

 

Thanks for giving me an idea of the important things to keep in mind and the way forward.

 

I have now read all the links Caro kindly posted above. Does anybody know if there will be an appeal in the Appeals Court, especially as the Carey rulings seemed a bit strange to say the least!

 

Anyway hope MBNA has accepted your £1 pm offer. Based on our experience with them, they seem keen to suggest they will accept an offer of a settlement as a tactic to get you to ring them. When my OH rang them, then they said it isn't possible but you can pay your arrears in 6 months, as I said in my original post.

 

When I get their terms & conditions, as well as the original ones hopefully under SAR, I will take your advice of checking everything like Miss Marples! I'm sure they should have given my OH the option to freeze the interest rate rather than accept an increase. Somewhere I read that came into force from Jan'09 and other lenders have followed that. Does anyone know if this was a binding OFT regulation or just a voluntary code? (Afterall, MBNA did reduce their fees to £12 in line with other providers.)

 

DemandFairness

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Hi Caro,

 

Just found out on moneysavingsexpert.com forum that a new verdict is in from the Court of Appeal Phoenix v Kotecha (26 Jan 2011) regarding the unenforceability of credit card debts regarding the S78(1) if they reconstitute the agreement without the correct interest rate in force at the time.

 

So it seems others too do not agree with the Carey rulings either.

 

Am I allowed to post the link here so that others can benefit from this new and higher court ruling? (Also, because I may not have interpreted things correctly from my summary above.)

 

DemandFairness

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You can although there's already a thread on it here. http://www.consumeractiongroup.co.uk/forum/showthread.php?291945-Phoenix-Recoveries-vs-D-Kotecha-Court-of-Appeal&highlight=

 

Do you have a copy of your original T&Cs?

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Hi Caro,

 

Yes that's the info I saw in the forums of moneysavingexpert.com

 

I don't know if my OH has the original terms & conditions.

 

I tried to find the MBNA documents library but I could not find it. Do you have the link to the MBNA sample documents/library?

 

Thanks,

DemandJustice

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Hi DF

 

I don't think you can post links until you have 20 posts yourself; subscribe to a few threads.

 

I think the docs library is dead; site team will advise.

 

I wouldn't rely on Court of Appeal hopes; concentrate on tactics and end game.

 

x

 

v

 

Hi V-S,

 

Hope things are going well for you. Did you manage to get MBNA to get your £1 pm offer or are they being difficult?

 

I haven't heard anything from the site team and I don't know how to PM people (as new to forums). Have you heard anything from them about if there is a MBNA documents library or is it definitely dead?

 

Any suggestion for next tactics as MBNA still have not sent us the CCA but have issued "Default Notice Served under Section 87(1) of the CCA 1974" dated 10 January 2011. It said my OH had to pay all the arrears before 31.1.11 to remedy this breach. Or else, we have to pay the whole amount as the agreement is terminated and no further statements will be issued.

 

My OH is panicking as he doesn't want a charging order or can they do worst like bankcruptcy? (I am so fed up of them and their extortionate interest rate that I think let MBNA fight with the rest of our creditors! And they would have to wait at lease one year to sell the house as we have kids.) Am I correct in thinking that they can no longer charge their fees and exorbitant interest rate on the outstanding balance, including the arrears, but have to charge 8% instead if they terminate the agreement?

 

Thanks and should I post this on the legal forum or is there a better forum to post this where I can get some other people's ideas too on next tactics?

 

DemandFairness

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Hi DF

 

Forget bankruptcy and them getting your house; they might get a CO but that is a long way off and will not happen if you play it right.

 

The DN notice is formal, don't be frightened, but do keep it stapled to its envelope. It is a precursor to them taking legal action though.

 

Others need to advise as well but, I'll be back.

 

x

 

v

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Hi,

 

Sorry I've only just picked up on this thread and thanks to those who pointed me to it.

 

Are you able to confirm your default notice contains all the information stated on this site? http://www.payplan.com/debt-library/debt-management-default-notices.php

 

There's other information on that site you may find useful as basic reading as well.

 

Also, after not receiving your CCA you say you placed the account formally into dispute by e-mail. What date did you send this e-mail? What is the date on the letter of the default notice that you received on Jan 6th?

 

Finally, if you don't mind my asking, how much in arrears were you when they defaulted you? How many months had elapsed since you'd stopped making minimum payments?

 

The fuller the picture we can build up, the better the advice we can give. Please try not to worry, we will do everything we can to help you get through this predicament. There are various things already going through my mind, and I'm sure Seq and Vic will have thoughts as well - they are both very good!

 

Can you be a little more specific about the arrears. You say in your original post

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Hi,

 

Sorry I've only just picked up on this thread and thanks to those who pointed me to it.

 

Are you able to confirm your default notice contains all the information stated on this site? payplan.com/debt-library/debt-management-default-notices.php

 

There's other information on that site you may find useful as basic reading as well.

 

Also, after not receiving your CCA you say you placed the account formally into dispute by e-mail. What date did you send this e-mail? What is the date on the letter of the default notice that you received on Jan 6th?

 

Finally, if you don't mind my asking, how much in arrears were you when they defaulted you? How many months had elapsed since you'd stopped making minimum payments?

 

The fuller the picture we can build up, the better the advice we can give. Please try not to worry, we will do everything we can to help you get through this predicament. There are various things already going through my mind, and I'm sure Seq and Vic will have thoughts as well - they are both very good!

 

Can you be a little more specific about the arrears. You say in your original post

 

Hi Tingy,

 

Thanks for the link & info. I think it complies but their name only appears as their letter heading and customer assistance department adress, pre-printed as part of that letterhead and not typed within the letter/notice itself. It is "computer signed" by their Head of Recovery & Risk Operations.

 

My OH sent the email to the guy (who knew we wanted the CCA from my previous call to him) on 31.12.10 as I think he had emailed us that day telling us we would be in default if we didn't pay him today. (We didn't use your formal "not received CCA" letter though as we didn't know about it at that time.)

My OH asked him to forward the reply email to their complaints and customer service departments, so that MBNA could send a reply regarding the CCA request and regarding our complaints of harrassment and confidentiality.

 

We received a letter dated 6 January 2011 (received I think 9.1.11) from MBNA's Rachel Nixon saying they will respond to the complaint with 28 days. We received a "Default Notice Served under Section 87(1) of the CCA 1974" dated 10 January 2011. (Received 13.1.11, by ordinary post, not 6.1.11). It said my OH had to pay all the arrears (about £2,500) by 31.1.11 to remedy this breach.

 

He stopped paying I think it was March or April'10 and restarted paying I think July or August'10 but not the full amount but what they agreed to accept by phone. This continued until Nov'10. Thereafter that guy tried to make us pay more, even though we had already revealed income, expenses and other debts and mortgage amounts by phone to MBNA previously and they could see our expenses were much more than our income.

 

I pointed out that if they hadn't put on their charges and had given us the option to freeze our interest instead of having increases like other creditors had done, then we would not be in such a mess. (Our mortgage company also changed our mortgage to interest only.) So we asked to see the terms and conditions & CCA, as he said MBNA did not have to give us this option. We didn't pay the December one as we still haven't received the CCA.

 

Hope this is a fuller picture, as you requested.

 

DemandFairness

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Hi Tingy,

 

Thanks for the OFT link and I've read it now.

 

I received the DN on 13.1.11 and have the envelope but there is no postmark date on it and it was delivered by ordinary post.

 

The DN said my OH had to pay all the arrears before 31.1.11 to remedy this breach. Or else, we have to pay the whole amount as the agreement is terminated and no further statements will be issued.

 

As we will probably have to ring them today, my OH is panicking as he doesn't want a charging order or can they do worst like bankcruptcy?

 

Am I correct in thinking that they can no longer charge their fees and exorbitant interest rate on the outstanding balance, including the arrears, but have to charge 8% instead if they terminate the agreement?

 

DemandFairness

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Hi DF,

 

Thanks for your replies which I can see were made very early this morning. In my opinion you are nowhere near Charging Orders or Bankruptcy yet, so I would not worry about that. £2500 may seem a large sum, but in the scheme of these things it is honestly not that big. You are making what payments you can reasonably afford - make sure you keep doing that, so as things stand at the moment, my feeling is that if it ended up in front of a judge he'd say, "They're clearly making every effort to clear this debt, they're not trying to avoid it, why are you wasting my time?"

 

A charging order is not the end of the world unless you are thinking of moving house shortly. Also judges are increasingly taking a dim view of companies turning unsecured debts into secured ones by gaining charging orders. As long as you're not thinking of moving, then the £2500 CO would sit against your house, and with inflation would gradually be worth less and less as the years passed, and the company can do nothing about it. You would not be foorced to sell your house for a debt of this size.

 

I'm out this morning unfortunately, but will be back this afternoon. I have a few thoughts running through my head which I'll try to clarify while I'm out and about and will get back to you this afternoon.

 

It is easy to think you're the only one in this position, especially if you've not been in it before. Remember the reality is that there are thousands and thousands of people in similar or far worse positions than you, so please try not to worry unduly, I know that's easier said than done. Seq, Vic and I will do all we can to help you.

 

Take care and speak later,

 

Tingy.

 

The DN is important as it is a formal notice of intent, is there any way you could remove personal details and scan it in for us to look at to make sure it complies fully. Eg are the arrears correct, or have they added unfair charges to make the arrears look higher?

 

There is still the very important issue of an apparent total lack of any initial agreement here.

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OP, Vic and Seq - would you take a look at this to see what you think as a possible way forward please?

 

Dear Sir,

 

I wrote to you in early December 2010 with a CCA request, enclosing the statutory payment as required. I note the letter was signed for by yourselves the following day. As I am sure you are aware under The Consumer Credit Act 1974 Section 78 (1) states:

 

78 Duty to give information to debtor under running-account credit agreement.

 

(1)The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a)the state of the account, and

 

(b)the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

The same section, subsection 6 states:

 

(6)If the creditor under an agreement fails to comply with subsection (1)—

 

(a)he is not entitled, while the default continues, to enforce the agreement;

 

To date I have received no reply whatsoever to my CCA request, and so I challenge the validity of your entitlement to place the account into default, as you did on 10 January 2011, as until such time as a copy of my agreement is received you are not lawfully entitled to take any further enforcement action on this account whatsoever.

 

I would like you also to take note therefore that this letter serves as an additional formal request under the Consumer Protection from Unfair Trading Regulations (CPUTR), 2008 for written confirmation as to whether MBNA currently hold or have ever held a properly executed Consumer Credit Agreement in their possession pertaining to myself and if not, to kindly confirm so in writing.

 

If you do hold such an agreement it should be sent to me, along with the other relevant documents mentioned, in response to this letter in order to comply with my original request made in early December.

 

In your Default Notice served under Section 87(1) of the CCA 1974 dated 10 January 2011 you state I have to pay all the arrears by 31.1.11 to remedy this breach. Bearing in mind the situation as it currently stands and outlined in detail above, I would respectfully suggest that this comment already places you in clear breach of CPUTR 2008 Part Two Regulation 5(1) and 5(2), even if the default notice had been lawfully served. I trust therefore that no further action will be taken until such time as the issues raised in this letter are resolved.

 

I look forward to your reply within 14 days of the date of this letter.

 

Yours faithfully,

Edited by Tingy
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Hi Tingy

 

That looks excellent to me, but I would put the actual date rather than early Dec in the opening line.

 

The Devil is the detail, and God is in the contradiction.

 

x

 

v

 

Totally agree Vic, but we haven't been told the exact date so I had to put that! Hopefully the OP will be able to amend that bit.

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DF,

 

Forgot to say, and should have done so last night, from now on, no more phone calls. If they phone you, refuse to go through security and insist on everything in writing for the avoidance of doubt. That way you get a full paper trail of what has/has not been said and agreed. They probably won't like this, but it is your're right.

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Hi DF,

 

Thanks for your replies which I can see were made very early this morning. In my opinion you are nowhere near Charging Orders or Bankruptcy yet, so I would not worry about that. £2500 may seem a large sum, but in the scheme of these things it is honestly not that big. You are making what payments you can reasonably afford - make sure you keep doing that, so as things stand at the moment, my feeling is that if it ended up in front of a judge he'd say, "They're clearly making every effort to clear this debt, they're not trying to avoid it, why are you wasting my time?"

 

A charging order is not the end of the world unless you are thinking of moving house shortly. Also judges are increasingly taking a dim view of companies turning unsecured debts into secured ones by gaining charging orders. As long as you're not thinking of moving, then the £2500 CO would sit against your house, and with inflation would gradually be worth less and less as the years passed, and the company can do nothing about it. You would not be foorced to sell your house for a debt of this size.

 

I'm out this morning unfortunately, but will be back this afternoon. I have a few thoughts running through my head which I'll try to clarify while I'm out and about and will get back to you this afternoon.

 

It is easy to think you're the only one in this position, especially if you've not been in it before. Remember the reality is that there are thousands and thousands of people in similar or far worse positions than you, so please try not to worry unduly, I know that's easier said than done. Seq, Vic and I will do all we can to help you.

 

Take care and speak later,

 

Tingy.

 

The DN is important as it is a formal notice of intent, is there any way you could remove personal details and scan it in for us to look at to make sure it complies fully. Eg are the arrears correct, or have they added unfair charges to make the arrears look higher?

 

There is still the very important issue of an apparent total lack of any initial agreement here.

 

Hi Tingy,

 

Thanks for your reply. Sorry for not replying earlier today as the sleepless nights and high stress made me ill today.

 

The £2500 is the arrears but the total including arrears is about £17,000 and that is what they say we will have to pay immediately as they will terminate the agreement if we don't pay the arrears before 31.1.11.

 

1) We didn't pay anything in December, as no CCA. You suggested we continue to pay what we can reasonably afford but if we rang them to pay the amount we recently were paying, can they refuse it as it wouldn't be the £2500?

 

2) Tingy, you made me aware of the benefit of the inflation devaluation of the charging order which we had not thought of before. So thank you and is there a link to the pros and cons of having a charging order?

 

3) We are particularly worried whether our other creditors would raise our interest rates because of the charging order. Is that likely and would the £17,000 still increase at their high interest rate or the 8% statutory interest rate or remain at £17,000 due to no interest, as it is now a secured debt of being a charging order?

 

4) Now that you know the debt is about £17,000, does that mean we would be forced to sell our house if they wanted that?

 

5) We don't have a scanner but the DN seems to have the points you mentioned through a link you posted. However, we don't know if the arrears are correct as we didn't get all our monthly statements from them.

 

Thanks

DemandFairness

Edited by DemandFairness
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DF,

 

Forgot to say, and should have done so last night, from now on, no more phone calls. If they phone you, refuse to go through security and insist on everything in writing for the avoidance of doubt. That way you get a full paper trail of what has/has not been said and agreed. They probably won't like this, but it is your're right.

 

They seem to have gone quiet in January with the phone calls since we sent that email complaint to them in December about privacy and phone calls. Or, is it due to them sending the DN and they are now following a different tactic?

 

Does anybody have a similar experience with MBNA's new behaviour and should I be worried?

 

DemandFairness

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