CharlieHo V Abbey National Credit Card - **WON**

[charlieho]

DPA request sent to Abbey although I believe card administered by MBNA

 

Data Protection Manager

Data Protection Team

Regulatory Compliance

Abbey House

201 Graftons Gate East

Milton Keynes

MK9 1AN

 

01 May 2006

 

Data Protection Act disclosure request

 

Dear Sir/Madam

 

Data Protection Act 1998 request for :

 

Mr xxxxx xxxxx Abbey National Card Account Numbers: xxxxxxxxx

Please send me the information which I am entitled to access under Section 7(1) of the Data Protection Act 1998 (the ‘1998 Act’) in relation to all charges which you have applied to my above noted account within the last 6 years from the date of this letter.

 

Additionally where there has been any event in my account history over this period which has required manual intervention by any member of your staff or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention or other evidence of that manual intervention in relation to my banking business with you. If you are unable to supply data relating to manual intervention because there has been no such manual intervention then please be kind as to confirm this in your response to this request.

 

If you require any further information please let me know as soon as possible.

 

I enclose a cheque in favour of your bank in the sum of £10 with respect to the maximum statutory fee for processing this request.

Furthermore, if I discover that you have levied disproportionate penalties against me then I shall be reclaiming them and also reclaiming the enclosed £10 DPA disclosure fee.

 

I look forward to your response within the maximum 40-day time limit under the 1998 Act.

 

Yours sincerely

 

 

[charlieho]

DPA reply rec'd 20 05 06

 

Thank you for your letter dated 1 May 2006.

We attempted to contact you by phone(Oh Really???) to confirm exactly what information you are seeking. However, since we were unable to reach you, we have enclosed copies of your statement information dating back to 8 February 2002. If there have been any transactions on your account as a result of manual intervention, they will be included on the enclosed statement information.

On this occasion we have provided this information to you free of charge and have enclosed the

£10.00 the payment you sent.

Should this information not be sufficient, and you wish to make a full data subject access request under section 7 of the Data Protection Act 1998, please complete and return the attached form.

Please ensure you include the fee of 10 (cheques to be made payable to MBNA Europe Bank Ltd) and appropriate ID (e.g. photocopy of driver's licence or passport).

Should you have any further queries please call my colleague, Gareth Tunnicliffe

Customer Advocate, direct on 01244 672628 between 8am and 5pm Monday to Friday.

Yours sincerely Susan Pemperton Customer Advocate

[charlieho]

Preliminary Letter sent

 

Request for repayment of charges

 

Dear Sir/Madam,

 

Mr xxxx xxxxxxxx Abbey National Card Account Numberxxxxxxxx

Account xxxxxxxxxx

 

My request

I am writing to ask you to refund to me the charges, which you have levied from my account since 08 Feb 2002.

 

I now understand that the regime of fees which you have been applying to my account in relation to late fees and over limit charges, are unlawful at Common Law, Statute and recent Consumer regulations . If you say that they are not, then will you please demonstrate this by letting me have a full breakdown of the costs to which you have been put by as a result of my breaches, in order to reassure me that your penalties really do reflect your costs.

 

Additionally, it has now been confirmed that your particularly high level of penalties are considered to be unfair per se by the OFT who reported on the 5th April 2006 and are therefore presumed to be unlawful in the absence of specific proof to the contrary.

 

Your responsibilities

I would draw your attention to the terms of the contract, which you agreed to at the time that I opened my account. It is an implied term of that contract that you would conduct yourselves lawfully and in a manner, which complies with UK law.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

I consider that your repeated representations that your charges are fair and reasonable are deceptive and that they have deceived me into agreeing to pay them.

Your concealment of the true nature of your charges has prevented me from asserting my right until now.

 

What I require

I calculate that you have taken £298.00 (as per list of enclosed charges) and require immediate repayment of this money

 

My targets to resolve this matter

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you will prefer to do this than merely respond with standard letters and leaflets.

 

I will give you 14 days to reply to me accepting, unconditionally, my request in principle and letting me know a date by which I will receive payment.

 

If you do not respond, or you do not respond positively, within this time period, I shall send you a letter before action giving you a further 14 days in which to reflect. I believe that these targets are more than sufficient for a large company such as yours with dedicated staff and departments.

 

After that, there will be no further communication from me and I shall issue a claim at the expiry of the second deadline.

 

Yours faithfully,

[charlieho]

Reply rec'd from MBNA stating that I would receive a full written response within 28 days- Not waiting the've had enough time from my preliminary letter.

[charlieho]

LBA of today -

 

Garteth Tunnicliffe

Customer Advocate

MBNA Europe Bank Ltd

Chester Business Park

Chester

CH4 9FB

LETTER BEFORE ACTION

Dear Mr Tunnicliffe,

 

Mr xxxxxx xxxxxxx Abbey National Card Account Number: xxxxxxxxx

 

I am very disappointed that you have failed to respond positively to my letter of the 23rd

May 2006.

I also note your suggestion that I can complain to the Financial Services Ombudsman if dissatisfied with this decision. However, please be advised that it would be inappropriate to complain to the Financial Services Ombudsman where the only forum which can determine a dispute on the legality of charges is my local court. I would ask you to note the following.

Your bank insists it can impose charges in accordance with its terms and conditions of contract. However, those terms and conditions are subject to the common law and the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR). Indeed, the UTCCR takes precedence over any contractual term where the court finds a term to be ‘unfair’. The court can then treat that term of contract as having no legal effect.

The question that arises is this: are your charges unfair in terms of the UTCCR? 0n 26 July 2005 the OFT stated that 'a charge is likely to be disproportionately high if it is more than a court would be likely to award if the lender sued the cardholder for breach of contract'. So what would the court award your bank for my minor breach of contract?

As you will be aware, the court will only award (in a non-negotiated consumer contract) a sum to reimburse actual loss. Your charges do not reflect actual loss. Rather, they include a massive profit margin or penalty. Alternatively, they subsidise the bank's global debt recovery costs and lending losses. There is parliamentary evidence for this assertion.

When the UK banks gave evidence to the House of Commons Treasury Committee on how bank charges were calculated they said:

"[bank charges] are going to pay for all the people we have who pursue debt, collect debt, speak to customers and chase payments. The way these charges are arrived at is by taking these total costs and making some assumptions about the volume that is going to come through to arrive at the individual charges" (House of Commons, 2nd report, 25 January 2005, paragraph 50).

Accordingly, your charges do not reflect the actual loss in my case. They are an illegal penalty charge designed to recover money unconnected with the conduct of my account. Please advise whether you have an appeals procedure, and if so, please treat this letter as a request for an appeal against your decision not to refund charges.

If I do not hear from you within the next 14 days, I will raise an action of payment at my local court. In that eventuality, I would require you to lodge in court financial vouching for the actual loss sustained in my case, together with your full financial accounts revealing how much income is generated from your bank charges, as against the cost of administering dishonoured transactions.

 

I am frankly shocked that you have operated my account in this way as I had always reposed confidence in your integrity and expertise as my fiduciary.

 

I calculate that you have taken £298.00 I am enclosing a copy of the schedule of the charges which I am claiming. I have already sent you a copy of this in my original letter of the 23rd May 2006

 

Additionally you have entered a default notice against my credit record. This default occurred merely in respect of unlawful charges levied by you or was the result of impecuniosity caused directly by the taking by you of penalty charges, which you had applied unlawfully to my account.

 

In addition to full payment of the sum mentioned above I require that you remove the default entry from the register. Please note that mere correction or amendment to the entry will not be acceptable.

 

I require repayment in full of this money and removal of the default notice. If you do not comply fully within 14 days then I shall begin a claim against you for the full amount plus interest plus a claim under ss.7 and 13 of the Data Protection Act 1998 plus my costs and without further notice.

 

Furthermore, I shall submit a Consumer Credit Act 1974 complaint to the OFT upon the basis that you have failed to comply with the OFT's direction of 5 April 2006 and are therefore not a 'fit and proper person' to hold a consumer credit licence under the 1974 Act. If you do not understand what this means then seek advice from your legal department.

[charlieho]

PARTIAL refund given (account already closed) cheque for £200.00 rec'd

 

 

Dear xxxxxxxxx

 

Account xxxxxxxxxxxx

We refer to your recent letter dated 23 May 2006 concerning default fees on your account. I would like to clarify the situation from our perspective.

We have always set out precisely what our charges are in our agreement with you, as they are an integral part of the terms and conditions under which we are prepared to provide credit facilities. When Customers pay late, we incur substantial costs in dealing with their default. Similarly, we have set credit limits carefully for each Customer and for good reason. We expect every Customer to respect their credit limit. If a Customer goes over their credit limit, he or she is using the card in a way that is not allowed, in effect obtaining unauthorised borrowing. We, therefore, lend more than we agreed to, and take on risks, which were never accepted in the first place. In the case of both late payments and overlimit usage, and also where a cheque is returned unpaid, we look at the portfolio as a whole and set uniform charges reflecting our costs of dealing with such defaults of customers overall, as do all other major credit card providers. This approach allows us to be clear and upfront about all default charges and the basis on which they are applied.

Our view is therefore that the charges that you agreed to are valid, fair and enforceable. Term 3b of your credit agreement with us clearly states that you must pay £25 each time your payment has not reached your account within one day of your payment due date, or when you exceed your credit limit, or a cheque is returned unpaid.

We do value your custom and so we would like to resolve this matter. I have therefore credited your account with a goodwill payment of £200 on the basis that this is in full and final settlement of your complaint.

 

You will know that the Office of Fair Trading has recentl y issued guidelines for the level of credit card default charges. MBNA disagrees with the OFT's interpretation of the law and continues to maintain that its default charges have always been fair, legal and transparent. However, we have decided to reduce our default charges to £12 with effect from 28 June for late payments and returned payments, and 28 July for overlimit fees. You will receive notification of the changes to the terms and conditions. We expect you to honour the revised terms of your agreement with us. If you do not do so, we will have no alternative but to cancel your card and to formally terminate your credit agreement.

 

I enclose a copy of 'Our Commitment to You' leaflet for your information. If you would like to discuss this or any other matter, please contact my colleague Gareth Tunnicliffe, Customer Advocate, on 01244 677628 during office hours.

 

Yours sincerely

Steve Bailey

Head of Customer Advocate Office

[charlieho]

Thought Id give them one final chance to pay up:

 

Gareth Tunnicliffe

Customer Advocate

MBNA Europe Bank Ltd

Chester Business Park

Chester

CH4 9FB

 

Dear Mr Tunnicliffe,

Many thanks for your payment of £200.00 I accept this as a partial settlement of my claim for return of unlawful charges and as a gesture of my goodwill I require the balance of £98.00 to be paid within the next 14 days.

If I do not receive payment from you within the next 14 days, I will raise an action of payment at my local court. In that eventuality, I would require you to lodge in court financial vouching for the actual loss sustained in my case, together with your full financial accounts revealing how much income is generated from your bank charges, as against the cost of administering dishonoured transactions.

Furthermore, I shall submit a Consumer Credit Act 1974 complaint to the OFT upon the basis that you have failed to comply with the OFT's direction of 5 April 2006 and are therefore not a 'fit and proper person' to hold a consumer credit licence under the 1974 Act. If you do not understand what this means then seek advice from your legal department.

[charlieho]

ABBEY/MBNA settled for full amount :o

 

Dear Charlieho

We refer to your recent letter dated 27 June 2006 regarding your Abbey credit card that is serviced by MBNA. I regret that you were unhappy with our response, however our position remains unchanged.

We reiterate that we have always set out precisely what our charges are in our agreements. with you, as they are an integral part of the terms and conditions under which we are prepared to provide credit facilities. Our view is therefore that the charges that you agreed to are valid, fair and enforceable. Term 3b of your credit agreement with us clearly states that you must pay £25 each time your payment has not reached your account within one day of your payment due date, or when you exceed your credit limit, or a cheque is returned unpaid.

However, as we do wish to resolve this matter I have credited your account with a further goodwill payment of £98, in addition to the previous goodwill payment of £200 on the basis that this is in full and final settlement of your complaint. You will appreciate that in doing so we do not accept that there is any force in the points that you make. As your account is closed you will receive a cheque for this amount in the next 10 working days.

Please note our response dated 15 June quoted an incorrect account number, please accept my apologise for this error and my assurance that the matter has been addressed. I apologise for any confusion this may have caused.

 

I have enclosed a copy of 'Our Commitment to You' leaflet for your information. If you would like to discuss this or any other matter, please contact my colleague

Gareth Tunnicliffe, Customer Advocate, on 01244 672628 (Monday to Friday, 8am to 5pm).

 

DONATION MADE

[barracad]

Congratulations!!

 

Brilliant news!

 

Please complete our bank charges survey.

[jayjones]

Well done.

 

Your letters are very well written (and tweaked)

 

Congrats on getting it all back

[charlieho]

This topic was closed on 09 March 2019.

If you have a problem which is similar to the issues raised in this topic, then please start a new thread and you will get help and support there.

If you would like to post up some information which is relevant to this particular topic then please flag the issue up to the site team and the thread will be reopened.

- Consumer Action Group