carter got CCJ at old address - MBNA debt

[oneahead]

1st Credit have replied stating they do not have my cca and that at present they cannot enforce the debt:). A paragraph from the letter says

 

"you have not specified upon which ground you rely for your notice under s10 of the Data Protection Act and therefore we do not consider this valid: furthermore this is not a valid request as it falls under the exemption in Schedule 2 section 2(a) of the Act"

 

could someone kindly decipher that paragraph for me!!!:-|

[fuzzybobble]

It's DCA speak for smoke and mirrors, deliberately designed to mislead and confuse.

 

They're basically trying to say you didn't give a reason why you wanted them to stop processing your data under s10 of the Data Protection Act.

 

In reality they know full well without a CCA they cannot lawfully process your data, but they'll continue anyway, as they know that nobody will pull them up on it.

 

But another complaint to the OFT about 1st Credit's appauling abuse of the law and the OFT's own guidelines wouldn't go amiss.

 

They've had a slap recently for not following the guidelines a DCA should follow, and being checked up on every 6 months. The more who complain in the next 5 months, the more chance we have of the OFT taking further action against them and hopefully revoke their credit licence.

[Bazza66]

I also got that paragraph in a letter 1st sent to me. Full letter is

 

--

 

Another letter from 1st Cretins today.

 

---

 

Thank you for your lettr of 23 Feb 2009 of which contents are noted. (this was my 12+2 letter)

 

I can confirm that we received your request for the original copy of agreement to which I enclose a further copy with terms and conditions, originaly sent to you on 4th March 2009. You are correct; we are required to provide a copy of the agreement requested under the Consumer Credit Act within 12 working dats. It is also correct that if the default of the credit agreement contniues for one month, that an offence may be comitted. (they are upto date then!) However, if an offence is committed, that does not affect the rights and duties between us. The Act provides defences to any offence which we believe would apply, in this case where we have to obtain documents and information to answer your request from the original creditor

 

In your letter of 23 Feb 09 you have not specified upon which ground you rely for your notice under s10 of the Data Protection Act and therefore we do not consider this valid; furthermore this is not a valid request as it falls under the exemption in Schedule 2 section 2(a) of the Act.

 

I am somewhat suprised that 'you do not acknowledge any debt to out company' when you have paid 70% of the balance, I bring to your attention that there is an outstanding balance of £237.31 which is now due.

 

We further note that you have ommitted to sign your letter, please ensure all future correspondence is signed.

 

---

 

Attached is a very poor copy of application form and some very clear T&C's (it must be noted on the T&C's that under charges it states "we will charge you £x for..." yes it says £x.

 

So what to make of that then?

 

Any advice?

 

[vjohn82]

Hi

 

The term regarding an offence after 30 days is incorrect as it was repealed by the new 2006 CCA.

 

This means that if no valid executed agreement has been provided after 12 w. days then the account goes into default until such a time an agreement turns up. During this time the normal limitations apply such as not being required to make payments/them not demanding payment etc. This is irrefutable and without equivocation.

 

They are quite correct in some of their assertions, particularly the part about acknowledging the debt. The point you need to be hitting home is that the debt is unenforceable in court and via any other legal process they wish to employ.

 

The term regarding section 2 (a) is:

 

"The processing is necessary—

(a) for the performance of a contract to which the data subject is a party"

This is correct in one sense. However, in the absence of an executed credit agreement they would have a hard time arguing the fact that they are legally able to process your data.

At this point your best bet is to write something like this:

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 the original creditor 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 as proof of ownership of said account.

 

Please note the following:

 

I have made you aware that the Consumer Credit Act allows 12 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 now expired.

 

Section 77(6), of the Consumer Credit Act 1974 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.”

 

Under the terms of statute law 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 and would require this in writing before I am forced to write a complaint to the credit reference agencies who you have reported information to, the Office of Fair Trading and the Information Commissioner.

 

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.

 

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

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

3) You may not pass the account to a third party.

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

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

6) You must remove information logged with any agency which you claim you assert the rights to.

 

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 therefore request a copy of your official complaints procedure which you are obliged to supply.

 

 

 

If you decided to take them to court the case could immediately be ruled in your favour owing to the fact they would be in breach of the CPR. A judge would see they have no legal basis, in terms of the CCA, in enforcing the debt.

[oneahead]

1st credit have since called me at home and on my mobile and now have sent me an instalment default letter and to call them to avoid legal action.

This account is in dispute and they have admitted to no CCA being available at present.

Can they behave like this when account is in dispute??

What should my response??

[vjohn82]

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf

 

[oneahead]

Originally a MBNA loan that was passed to 1st credit. After a cca request they sent a signed valid loan agreement. I have now received a letter from Connaught stating they have full control of the account.

 

1) Why would 1st credit sell this debt on?

2) Is this letter a notice of assignment or should that come from original creditor or 1st credit?

3) Should i SAR MBNA?

 

Views appreciated

[42man]

In answer 1) - Connaught are owned by 1st Credit

2) - Letter of assignment should come from original creditor to state they have sold/assigned...letter from new creditor to state it has been assigned...

3) YES...

[oneahead]

I have a 13 year old loan with MBNA, last payment 4 years ago. Been around quite a few DCA's. Have been offered all kinds of deals like pay 50% etc...No longer on credit report.

 

My question is....why are they all shying away from legal action. I have done a SAR and requested CCA and to be honest cannot find anything wrong. I always reply stating account is in dispute and cca not valid. They reply and threaten and never do anything.

[filrobbo]

Probably no C/A so they won't want to take it to court,or full of unlawful charges and any missold ppi.

Edited September 4, 2013 by filrobbo

[BRIGADIER2JCS]

filrobbo the OP says clearly they have the CCA, WHICH appears ok.

 

onehead can you post up a copy of the CCA Please, MBNA did have some dodgy paperwork.

[filrobbo]

Sorry misread it I was distracted when reading post .

[oneahead]

http://s843.photobucket.com/user/oneahead1/media/mbna003_zpsb9d55224.jpg.html Edited September 4, 2013 by oneahead

[oneahead]

Bryan Carter have issued a CCJ against me after my alleged debt was purchased by Fredrickson from Lowell.

 

 

Lowell have my correct address and email address and I have confirmation that they updated their records with these.

 

 

However Bryan Carter used my old address to serve CCJ papers and I knew nothing until it appeared this month on my credit report.

 

 

Bryan Carter have confirmed they had both addresses but had my OLD address as the new one and my current address as the former one.

 

Can someone kindly advise how I get the CCJ set aside.

[AndyOrch]

Thread moved to Financial Legal Issues

 

Go to the Legal Library and familirise yourself with the N244...the fee is £155.

 

Regards

 

Andy

[dx100uk]

whats the debt all about

even if you try a set aside

you still need a valid defence for the debt itself.

 

 

dx

[obiter dictum]

If it can be proven that a CCJ was attained through an old address, even though the creditor was aware of your new address:

 

Can you claim back the N244 application Fee to set aside??

[oneahead]

The debt was due to be statute barred next month. It is an old MBNA debt that has been through various debt agencies. I have only ever been provided with a copy of an application form.

[dx100uk]

several old threads merged for history.

 

 

so if its not SB'd then what will you defence be?

[oneahead]

Can I just contest on grounds of wrong address/no knowledge?

[BazzaS]

Can I just contest on grounds of wrong address/no knowledge?

 

That would allow the case to be reheard : but the rationale is "what is the point of a hearing if no defense has been put forward". You need both to claim "foul" (in terms of use of old address) and give some sign you have a defence worth being heard.

[dx100uk]

that answers the CCJ set aside

but you'll then need a defence against the debt itself

as sure as eggs is eggs carter will appose it as the debt is still owed.

 

 

when did you last pay MBNA anything or use the card?

 

 

can you scan up what was sent as the CCA return?

follow the upload

 

 

dx